Vol 1.1

First published in Volume 164 Justice of the Peace 28/8/2002, this paper, subjected to intense peer review, brought much praise from magistrates, judges, the then Home Secretary and the Lord Chief Justice of England.

Psychiatrists: Do They have a Place in the Courtroom?
Christopher Berry-Dee

‘The more you talk to psychiatrists, the more confusing a case gets’’.

Dr. Eric Caine, psychiatrist at the trial of American serial killer – Arthur Shawcross

How often do the guilty walk free and how often are the innocent incarcerated? After examining every capital punishment case passing through the appeal courts between 1973 and 1995, lawyers at the Columbian School of Law in New York found that seven out of 10 death sentences were reversed because of serious error in the original trials. In over 60 per cent of the cases, psychiatric evaluations had played no small role in the original proceedings. So, let us not pretend that the British and American system of justice is always a search for the truth.

A jury consists of twelve persons chosen to decide who has the better lawyer, and this ‘search for the truth’ is a euphemism investing altruistic qualities into what, in reality, is more often than not, merely a contest between two sides played accordingly to certain, often archaic rules. If the truth happens to emerge as the result of the contest, then that is pure windfall. But it is unlikely to. It is not something with which the contestants are mainly concerned. They are only concerned that the game should be played according to the rules of their club.

   There are many rules and one of them is that certain questions, which might provide a short cut to the truth, are not allowed to be asked, and those that are asked are not allowed to be answered. The flip side of the coin is that many questions are asked when they not need be asked and many opinions are given which need not be given. The result is that verdicts given by jurors are often reached for the wrong reasons, in spite of the evidence, and may or may not coincide with the literal truth.

Proof of Guilt:
There is this question: ‘In what circumstances are we justified in convicting a fellow citizen of a serious crime?’, and it seems to me that we are faced with one simple, pragmatic issue. Did the accused commit the crime, or not? At this point in the judicial process [let’s now include Jeffery Dahmer here] it has already been established that the accused person is found mentally fit to stand his trial and understand the proceedings as best that he can and that he is able to instruct his lawyers if needs be. We are not assessing the accused’s state of mind prior too, during the commission of the crime/s, nor are we evaluating the measure of punishment to be meted out. Therefore, the first justification for conviction is an admission of guilt, backed up by other good evidence supported by material facts.

   The second justification is to agree upon guilty verdict after denial of any guilt has been discredited through consideration of the circumstantial evidence. It is the cumulative effect, the ‘arithmetic of circumstantial evidence’, which causes so many juries to say that even though the evidence before them is entirely indirect they are ‘satisfied’, beyond any reasonable doubt’, of the safety of convicting.

   Yet, again we seen no requirement for psychiatric testimony and opinions at this stage, for we are only concerned with establishing an uncluttered fact: did the accused commit the crime, or not?

Psychiatry and psychology are ‘inexact sciences’ for want of a better term. The practictioners of these two specific disciplines form ‘professional opinions’ often invested with great integrity. However this integrity is often ill-founded; their opinions having been coloured by predisposition towards their own favoured ideals and disciplines they are often less-equipped to penetrate the criminal mind than others.

   Out of court, and visiting the accused in a prison environment, psychiatrists are often in total disagreement among themselves when judging the state of an accused’s state of mind, and it is this so-called ‘professional’ in-fighting that has often led to disasterous and tragic results. The cases are legion, and each one brings its own irreparable aftermath. 

   Springing immediately to mind is the case of Arthur John Shawcross (1945-2008). This serial killer, whom I interviewed on camera at the Sullivan Correctional Facility, Fallsburg, New York, was given a derisory 25-year term of incarceration after pleading guilty to first-degree manslaughter. This particular search for the truth was, of course, a plea-bargain deal, intended to save the State the cost of a fully-blown murder trial. It backfired!

   Shawcross, like so many of the thirty or so serial killers, mass-murders and spree/rampage killers I have interviewed was a master manipulator. He was nobody’s fool and, not unlike thousands of other felons, he knew that the probable key to a successful parole application lay in appealing to the sensibilities of the welfare authorities, the prison psychiatrists, and the church. 

   Initially, held at the Green Haven Correctional Facility, to the delight of two of the ‘shrinks’, Shawcross was soon to be found exhibiting all the welcomed traits of a ‘reformed man’ and, as well as attending the religious services – previously he had never entered a church in his life – he conned his way into a counsellor’s job in the prison’s mental health unit. Here, he learned the language of psychology and psychiatry and through his doing that, psychiatrists supported his parole application, while other experienced pragmatists certainly did not! 

   Dissenting from the opinions of his colleagues, Dr. Robert Kemp had formed the opinion that ‘Shawcross would possibly be the most dangerous individual to be released into the community in years.’ Dr. Y.A. Haveiwala, another of Green Have’s saner psychiatrists who had completed many evaluations on the killer, supported this stark evaluation. Dr. Haveiwala concluded that Shawcross was ‘a grave parole risk with an antisocial personality disorder [sociopath] and schizoid personality disorder with psychosexual conflicts.’ Unfortunately, one Dr. Kent, and other psychiatrists, thought they knew better.

   Shawcross’s prison records show a hotchpotch of so-called professional interpretations laced with educated and uneducated guesswork. Yet, despite the alarmingly wide variance in ‘qualified opinion’ he was freed on April 30, 1987, ten years before his full 25-year tariff had expired. During his full year at liberty, he killed again and again, and went on to leave a trail of 11 bodies behind him. The psychiatrists at Green Haven CF kept their jobs.

   Part of this blame for this carnage rests in the question: ‘Was justice in his first trial done on the cheap?’ The answer, in the short term, has to be yes. In the long term, however, it is the opposite, for the cost in lives extinguished by Shawcross is immeasurable. Moreover, while a price cannot be placed on the degree of human suffering, the cost to the public purse can be defined, and the figures are truly astronomical. 

   Aside from the $35,000 spent to bring Shawcross to ‘justice’ for the two earlier child killings, and the $250,000 to keep him under kept at Green Haven CF, plus incidentals such as psychiatrists’ bills, there is also the invoice for the later Rochester, NY, homicides to tally up. Here, we can only blame several of the psychiatrists at Green Haven CF for concluding that Shawcross was safe to be released back into the community.

   The Rochester Police Department (RPD). Conducted 2,210 interviews during this serial killing investigation. 3,255 licence plate inquiries were made at $12 a time, and the police developed leads on 150 suspects. On-duty personnel costs add $420.447. Overtime costs were $121,916. Non-personnel services added $27,196. In total, these costs reached a staggering $608,619.

   However, the RPD add a rider to these figures, noting that the total would have been dramatically inflated – by perhaps an additional $2 million – if factors such as: patrol time/area altered to a specific pattern; training of investigative personnel, and volunteer hours spent on the investigation by RPD civilian employees were included. Finally, to keep Shawcross in prison until he was 80-years-old (his sentence was 250-years), would cost the taxpayer a further £750,000 at the rates at that time, making it all a very serious and faulty psychiatric evaluation indeed.

   And that is not the end of it. When I interviewed the trial judge, His Honour Donald J. Wisner commented: ‘The psychiatrists at Green Haven acted like Monday-morning quarterbacks. It is a. disgrace.’ I response, Dr. Kent replied: ‘We just hate it when one of our people [Shawcross] goes sour.’

Psychiatrists in Court?
Using just the single example above – and there are literally thousands more on public record – I turn to thrust of this paper: Psychiatrists: do they have a place in the courtroom?

   As I mentioned earlier, a court’s role is primarily to establish guilt or innocence, to get to the truth of the case. Did ‘A’ shoot ‘B’, with this revolver? Either by admission of guilt, or through expert ballistic evidence, linked with a chain of strong circumstantial evidence, the fact is proven or not proven.

   I have also suggested that a trial is a contest between two sides, the prosecution and the defence, with each side having a team of players. And, invariably, each team might well employ the services of psychiatrists and psychologists to bolster their case. But why? I would debate the issue that members of these professions have no place in a court of law. They are not called to give evidence over material fact, or even concerned with the arithmetic of circumstantial evidence.

They are called by their ‘employers’ – prosecution and defence – to give an ‘opinion’ as to the defendant’s state of mind, prior to, during the commission of, and post-crime. As individuals, or as a small collective, these opinions are often demonstrated to be flawed. By that time the consequences could be fateful, as we have noted above. In a nutshell, the defence might be seeking to influence a jury with mitigation in mind. The prosecution will be attempting to argue otherwise. Once the contest is in full swing, the jurors are being drawn into nebulous and intangible concepts and issues; matters that apparently many psychiatrists do not even understand. Yet, such is the power of the ‘better’ more eloquent psychiatric expert, who could well be entirely wrong in his expert opinion, quite often a jury is swayed in his favour. 

I recall the Winchester Crown Court case of a Dorset man, Lee Baker, a young spree killer who ran amok in Christchurch in July 1986, after his only ever girlfriend jilted him on the advice of her mother. For reasons only known to him, Baker turned up at the mother’s home, decapitated her with a blunt kitchen knife, placed the body into a bed, then went downstairs where he fired several bolts into the family dog as it cowered in terror under the table. As an afterthought, this youth set fire to the house, an act that drew the immediate attention of the fire brigade.

   While cycling away from the now burning property, Baker passed his girlfriend. He remarked: ‘Guess where those fire engines are going…to your fucking house’. He went on to kill and injure several other innocent people with his crossbow that day, and he was arrested shortly after filling a can at a petrol station.

   During Baker’s trial, which I sat through in Winchester Crown Court, a regiment of psychiatrists were paraded in front of the jury, and none of these ‘experts’ could agree with each other, with the exception of a female prison psychiatrist and a male colleague from the prosecution’s psychiatric team. The lady in question gave evidence that she had evaluated Baker thoroughly, over a matter of some time, she explained, and on this basis she was confident in her opinion regarding Baker’s state of mind. The defence sized the moment. Rising to his feet the barrister asked: ‘Some time…you are the prison psychiatrist…you have evaluated this man over some time?’ The answer was a discernible shaky: ‘Yes!’

   Like pulling a tooth, during the next five minutes counsel extracted the fact that the only evaluation of Baker ‘over some time’ had actually been restricted to her scanning her colleague’s notes during a rushed ten-minute walk, in the rain, down Romsey Road from the prison to the court.

Psychiatric Pre-sentencing hearing:
Having established the material guilt of the offender, it seems a reasonable suggestion to me, that, at a pre-sentencing hearing – a collective of unbiased psychiatrists and psychologists – engaged neither by defence nor the prosecution – may be formed to evaluate a prisoner’s state of mind. Of course, the perennial problem of disagreement between these experts will always exist, but at least they can debate the issue in camera before the trial Judge, and not parade their often biased, conflicting ideas and conclusions before a jury. Well might a jury understand the technical details of ballistics, simply because they can see illustrations of the rifling lands, grooves, and any specific comparison microscope marks which prove beyond any doubt that such and such bullet could have only been discharged from ‘this gun’, but never could they ever fully understand the deepest and darkest workings on the human mind, most especially when the shrinks are arguing the toss over and over again.

   Nonetheless, having listened to the conclusions finally presented by this panel, the Judge would, or should, be able to arrive at his/her own decision as to sentencing. If he sees good mitigation the Judge may exercise some leniency, or be able to order, as advised, either a term in a normal prison, or a term in an establishment such Broadmoor or Rampton hospital, both secure institutions for the criminally insane.

There is a certain freshness behind the ideology of this paper which, if implemented, would bring a breeze of cool air into the creaking, overworked, somewhat dusty British and U.S. judicial systems. Of course, it would be a radical change, yet so easy to implement. It has benefits, and one might hope they would be welcomed in many quarters.

   Removing psychiatrists and psychologists from giving opinions in court is cost-effective, saving the taxpayer millions of pounds/dollars in court time and man-hours each year. This reform would relieve counsel from both sides from having top search for, and produce, lengthy psychiatric opinion and testimony in the legal proceedings. 
Further, it removes psychiatrists and psychologists from the labour of travelling to and from courts, and waiting around, wasting their time, to give their ‘opinions’ when they would be better employed treating their own patients or even one another. Furthermore, it frees the jury from the arduous task of considering conflicting psychiatric opinion and testimony, enabling the jurors to focus on material fact and arithmetic (if required) of circumstantial evidence.

   Specifically, in the USA, it removes, at one fell stroke, the odious behaviour practiced by so many of the psychiatric ambulance-chasers who solicit their services at the very smell of a well-publicized case. The eminent psychiatrist, Dr. Donald T. Lunde, would agree that many of these psychiatrists are quacks, willing to use the courtroom to prostitute themselves for reputation and financial gain, at the expense of the public purse.

   I am ever-mindful of the carnival produced by six psychiatrists prior to, and during the trial of Kenneth Alessio Bianchi; known as one of ‘The Hillside Stranglers, he claimed a Multiple Personality Disorder, and faked hypnosis sessions.  It was ‘Stevie’ who did the murders and poor Ken knew nothing about them.    

The matter, which almost plunged the entire American psychiatric profession into disrepute when it was leaked to the media, was only resolved when an irate Judge lost his patience. Sick to death of the bickering between both sides, he appointed an independent psychiatrist.

   When Dr. Orne, from the Department of Psychiatry at the Pennsylvania Medical School arrived, with a single salvo he blew, not only all of his colleagues, but also Bianchi, out of the water in a flash of what can only be called brilliance. In fact Dr. Orne was a genius. Uncluttered by the pressures placed upon his colleagues by the defence and prosecution, Dr. Orne dispensed with psychiatry and psychology altogether, and used what amounted to a simple, mechanical test.

   Aware of the benefits to Bianchi if he succeeded in faking a multiple personality disorder, Dr. Orne decided to analyse, not so much Ken’s personality, but the assumption of the multiple personality itself. This was a unique move, a lateral test to see whether Bianchi had really been hypnotised at all, for Dr. Orne figured that of this man could fake a multiple personality disorder, he could easily fake hypnosis.
   Bianchi was about to meet his Nemesis, and he did. 

Psychiatry is indeed an inexact ‘science’. It consists of educated and uneducated guesswork, with no apparent litmus test. ‘Guestimation’ has no place in our courts of law.