Forensic psychiatrists under fire Criticism: Even as the profession is growing, these physicians find their reputations sullied by seemingly outlandish courtroom testimony.

Sun Journal

November 23, 1997|By Peter Jensen | Peter Jensen,SUN STAFF

DENVER -- Not every professional organization bestows the title "distinguished lecturer" on a convicted felon, but that didn't deter Sol Wachtler, the ex-New York Court of Appeals chief judge, from dissing his luncheon hosts.

In the midst of a convention of forensic psychiatrists, he was asked why he didn't pursue an insanity defense when he was arrested for his threatening and often bizarre communications to a former girlfriend. Wachtler's response hit the crowd where it hurts.

"The prosecution is always able to find someone [a psychiatrist] who agrees with him," said Wachtler, 66, who spent 15 months in a federal prison. "I'm not saying all psychiatrists are hired guns, but that is the suspicion."

Ouch. Hired guns. How about "Whores of the Court"? That's the title of a Boston University psychology professor's recent book on the subject with the equally provocative subtitle, "The Fraud of Psychiatric Testimony and the Rape of American Justice."

To the doctors who toil in the lucrative and growing field of courtroom psychiatric testimony, a little harsh criticism comes with the territory.

At the annual meeting last month of their professional organization, the American Academy of Psychiatry and the Law, psychiatrists came to Colorado from across the country unbowed. More than 700 people attended the three-day event at a downtown Denver hotel, the most the organization has ever attracted.

They presented research, listened to case histories, debated matters of criminal behavior. But despite all the academic and collegial atmospherics, those old labels like hired gun and courtroom whores would sometimes creep into the discussions. The psychiatrists are acutely aware that the public often distrusts them.

"One bad case can can color the views of the whole profession," says Dr. Howard V. Zonana, a Yale professor and the organization's medical director. "The public is opposed to the insanity defense in principle, so we're starting from a bad position."

But it isn't just about the insanity defense, which, after all, is rarely invoked and even more rarely succeeds for a defendant in the nation's post-John W. Hinckley Jr. criminal justice system.

Rather, the image of the forensic psychiatrist has suffered from something much more subtle. It is the public's unease with the apparent "softness" of the science -- the way psychiatrists can so often draw opposite conclusions in a court case, depending on which attorney is paying their fee.

Neither has it helped that weird ideas will pop up in psychiatric testimony. Take, for instance, the "Twinkie defense" -- a psychiatrist's infamous explanation that junk-food binges may have affected the mental state of Dan White, the man who killed San Francisco Mayor George Moscone and Supervisor Harvey Milk.

"I think there are people who will testify to all sorts of things," says Dr. Renee L. Binder, a San Francisco psychiatrist and the academy's president. "The challenge of forensic work is not to push your work further than you can."

Some people are willing to push pretty hard. Just last year, a psychiatrist testified in Montgomery County that a defendant's judgment was so impaired from eating a bottle of antacids that he should be allowed to withdraw his guilty plea to a charge of hiring a hit man to kill his 70-year-old cousin. The idea was rejected by the judge.

Or consider the example of James "Dr. Death" Grigson, the Dallas psychiatrist who assisted prosecutors in numerous death-penalty cases by predicting -- with great certainty -- future violent behavior. The American Psychiatric Association took away his membership for that questionable practice, but it hardly ended his court career.

The doctors earn big fees for their work -- $400 an hour or more in some cases. In the recent murder prosecution of multimillionaire John E. du Pont, a Cleveland psychiatrist racked up 700 hours on his behalf -- a quarter-million-dollar fee.

In the era of managed care, when health insurers regulate psychiatrists more closely than virtually any other specialty and pay them as little as $50 for spending an hour with a patient, that looks pretty attractive.

As a sub-specialty, forensic psychiatry is on the upswing. The academy has grown 40 percent in five years to nearly 2,000 members.

A recent survey of 267 lawyers and 41 judges in the Dayton, Ohio, area found that more than half had asked a mental health professional for an opinion in the past year. The attorneys alone averaged 6.7 requests each.

"One out of every seven [legal] cases deals with psychological issues," says Dr. Douglas Mossman, a Dayton psychiatrist who conducted the survey.

Most forensic psychiatrists don't see this as anything close to a crisis. They believe that bad psychiatric testimony is ultimately exposed -- if not by cross-examination, then by lawyers who won't hire experts with embarrassing testimony in their pasts.

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