Category: Forensic Psychiatry

Criminal LawExpert WitnessForensic PsychiatryFraudUncategorized

Elizabeth Holmes Fraud Trial: Mental Disease & Defect Defense

on September 29, 2020

Before Nikola and the Trevor Milton scandal, there was a prominent blood-testing startup called Theranos. Its founder, Elizabeth Holmes, currently faces a criminal fraud trial.

If you’ve been tuning into business news recently, the latest scandal with Nikola, a electric-powered truck manufacturer, and its founder, Trevor Milton, is no surprise to you.

For those who have not been following along, a quick summary is as follows: Nikola (NKLA) recently became a publicly traded company alleging they had hydrogen fuel cell (battery) technology that would revolutionize the trucking business. The stock did well after IPO. Nikola then did a multi-billion dollar deal with General Motors. The stock went higher. A few days after the GM deal, a short-seller released a report that accused them of a being an intricately constructed fraud. The founder, Trevor Milton, contested the accusations on social media and asked for time so he could rebut all of the allegations. Within a couple of days he went silent, was removed as executive chairman, and deactivated his social media accounts. It has been widely reported that both the SEC and DOJ are conducting investigations related to his actions and claims as founder and executive chairman.

I share that story because some news agencies have suggested Trevor Milton’s story is similar to that of Theranos founder and CEO, Elizabeth Holmes. Ms. Holmes is now facing a criminal fraud trial and she is the focus of our our post today. Stay tuned next week for some further discussion on the issues surrounding Nikola.

Background:

Elizabeth Holmes founded a privately held biotechnology company called Theranos. The company intended to revolutionize blood tests, with just a drop of blood. No more needles and vials, just a small drop of blood, and the tests results would be available rapidly. Ultimately, they failed to deliver tangible results and led consumers to believe false promises. After receiving more than $700 million in private investment, the company began falling apart.

In Spring 2018, Holmes was charged with fraud by the SEC, as reported by Bloomberg. This being a civil action, Holmes settled it without admitting any of the allegations. The settlement required her to relinquish her shares to the company and abstain from being an officer or director of a public company for a period of 10 years. There was also a fine, according to Barron’s. To the best of my recollection, Ms. Holme’s settled with the SEC on the same day she was charged.

In the Summer of 2018, the US Attorney’s office filed charges against Holmes’ for conspiracy and wire fraud, as reported by CNN. This criminal indictment is the inspiration for this blog post.

For more than 2 years, we’ve followed the developments in the criminal prosecution of Elizabeth Holmes, wondering if it would lead us to an interesting analysis from an expert witness perspective. In September of 2020, I found this article from the New York Daily News. It seems Ms. Holmes is preparing for the use of a “mental disease or defect” defense.

More specifically, the article from the New York Daily News, indicated the judge had assigned a neuropsychologist and psychiatrist to conduct a two-day, 14 hour evaluation of Ms. Holmes. Additionally, this evaluation is to be recorded. Now, I had never heard of psychological evaluation being this long and I worked in the mental health field for years before joining Experts.com.

To the best of my knowledge, I had not heard about the “mental disease or defect” defense since law school. I remembered it as a mitigating factor to a crime. Something we learned about when we learned about defenses and factors related to defenses.

So, I did what I usually do with these blog posts, and reached out to the experts. This time, I thought it would be good to get insights from a federal public defender and a psychiatrist.

First, let’s see get a view of the legal opinion…

Analysis from Federal Defense Attorney, Diego Alcalá-Laboy:

Diego Alcalá-Laboy is a criminal defense attorney with his own practice Defensoria Legal, LLC, in Puerto Rico, where he represents federal criminal defendants and advises startups. He is also an adjunct professor at the Inter-American University, School of Law and teaches the Federal Evidence and Federal Criminal Procedure courses at the University of Puerto Rico Law School’s Federal Bar Review.

Nick Rishwain: Why would one use a defense of “mental disease” and what impact might it have on the case?

Diego Alcala: A prosecutor must prove that a defendant intended to commit an act (mens rea), and that he committed the act (actus rea). And most crimes require that the defendant acted intelligently, knowingly, or willfully, and on some occasions recklessly or negligently. The type of “mens rea” a crime requires is defined by Congress and the interpretations given by the courts. On some occasions, an offense may not even require a mens rea, such as with strict liability offenses.

Crimes may have different elements, and a prosecutor may have to prove that the defendant had the required mens rea to commit each element of the offense. If the prosecutor cannot prove this, the defendant may be found not guilty.

Congress also recognized that a defendant may show that because of a medical defect he was unable to appreciate the nature and quality of his or her acts because of a severe mental disease or defect. After the John Hinkley trial, Congress amended its statutes and eliminated the affirmative defense of diminished capacity but allowed a defendant the possibility to attack an element of an offense because of a mental condition.

This is a lot harder than it sounds. The Courts are the gatekeepers of the any scientific testimony intended to be presented at trial. Therefore, whenever a defense of mental defect is offered by a defendant, the Court must ensure that the evidence offered is grounded in sufficient scientific support. This scientific evidence then must be scientifically sound and must also show that the medical condition negates mens rea of an element of the offense. So, a defense of mental defect, if grounded on scientific basis, and shows that it negates an element of the charged crime, will clear the defendant from a particular case.

NR: Have you ever seen a “mental disease” defense used in a criminal fraud matter?

DA: I have never seen a mental disease defense presented before. But I did find some cases where the defense tried to introduce this type of evidence but was ruled inadmissible because it did not satisfy the Court that the proffered evidence: a) was based on sound scientific principles, or b) even if it was based on sound principles, it failed to negate mens rea for the element(s) of the offense. In fraud cases, a defendant is accused of committing some type of false representation. It follows that the evidence of mental disease must show that if his/her medical condition can be logically connected to a subjective belief that his/her assertions were not false, baseless, or reckless vis-a-vis the truth.[1] I have not found a fraud case in which the defense has been able to overcome this burden.

NR: If it is established that Elizabeth Holmes is suffering from “mental disease,” can she still be held criminally liable for her actions?

DA: If a defendant presents a successful mental disease defense, the federal law states that she will be found not guilty. But a finding of not guilty does not necessarily mean that she is free to leave. A determination of not guilty by reason of mental defect will then place a defendant in a “suitable facility” and may be release only after showing that she is no longer a threat.

NR: Does a “mental disease” defense have much success in federal criminal trials?

DA: As mentioned, I have not found a successful case, and primarily the difficulty lies in the very narrow type of cases that may meet the discussed admissibility standard. Even if she can get this evidence into trial, it is still up to the jury to accept this defense.

Now that we have some idea of the application of the law for fraud in federal criminal cases, we need to review the science as outlined by Mr. Alcalá.

Analysis from Forensic Psychiatrist and Expert Witness Dr. Sanjay Adhia:

Dr. Sanjay Adhia is triple-Board-Certified in Forensic Psychiatry, Brain Injury Medicine, and Psychiatry. Dr. Adhia serves as a Psychiatrist and Brain Injury Medicine specialist at TIRR Hermann Memorial, a Rehabilitation and Research hospital treating those with brain and spinal cord injuries and psychiatric elements of their injury and recovery. In private forensic practice he conducts Independent Medical Examinations (IMEs), and renders his opinions by report and testimony. Dr. Adhia serves on the faculty of McGovern Medical School at UTHealth. You can visit his website at: forensicpsychiatrynow.com.

Nick Rishwain: According to the psychiatric community, what constitutes “mental disease” and “mental defect?”

Sanjay Adhia, MD: These are more legal terms rather than actual formal psychiatric definitions.

According to Merriam-Webster, the legal definition of “mental disease” is “an abnormal mental condition that interferes with mental or emotional processes and internal behavioral control and that is not manifest only in repeated criminal or antisocial conduct”.

Examples would include Schizophrenia, Schizoaffective Disorder and Bipolar Disorder which are considered Severe Mental Illness (SMI). These conditions may lead to psychiatric hospitalization. The conditions maybe associated with and loss of touch with reality and a lack of volitional control.

“Mental defect,” on the other hand, is defined by Merriam-Webster as a “an abnormal mental condition (as mental retardation) that may be of a more fixed nature than a mental disease”.   “Fixed” disorders would include Intellectual Developmental Disorder (IDD; formerly known as mental retardation), Autism and Brain Injury. According to this definition, Antisocial Personality Disorder (ASPD) would be excluded. ASPD is marked by a tendency to lie, break laws, and act impulsively. It shares some features with psychopathy or sociopathy. A number of states do not permit the use of ASPD in the insanity defense.[2] Allowing ASPD would have unintended repercussions. For example, it could potentially permit a defendant like Ted Bundy or Jeffrey Dahmer to avoid prison.

NR: In the court order, it limits the evaluation of Ms. Holmes to a 14 hour, 2-day, psychiatric examination. Is this out of the ordinary in a criminal matter?

SA: There is a wide range of exam times in criminal cases. It would depend on a variety of factors including the type of case, the jurisdiction, the funding available and the severity of the charge. Assessment time in a misdemeanor will not be identical to a capital case. Ms. Holmes’ case is not a capital case, but it helps to understand differences in how long the examination might take. The exam time in a Competency to Stand Trial for a misdemeanor trespassing case would likely be under two hours. I have seen some examiners spend 30 minutes for the interview in such cases. The other extreme would be Capital cases which could go over 8 hours or several days; this is especially true if neurocognitive testing is required, which can take an entire day.

Again, in a capital case the threshold and the stakes are very high—especially in death penalty cases that often go to the appeals court.

In misdemeanor cases, you may have a single mental health expert and the findings may be accepted without the need for an opposing expert. In Capital cases, the defense itself may retain several mental health and other medical experts (i.e. Fetal Alcohol Syndrome experts). In the Holmes case, the 14 hours is to be shared between a forensic neuropsychologist and a forensic psychiatrist.

As it is a high-profile case, it is possible that the court may allow additional funds or there maybe a willingness of the expert to work within a budget.

It is my experience that the examination in insanity cases take more time than other types of cases as you have to elicit a detailed account of the crime from the defendant and then determine the mental state at a time in the past and consider malingering (lying for secondary gain—like a lesser sentence). I suspect in the Holmes case, it is likely the charges are not limited to one circumscribed incident so it could take additional time. It is worth noting that time spent reviewing records and preparing a report could exceed twenty hours or more.

NR: What information might you need to establish or rebut an insanity defense?

SA: In addition to interviewing the defendant, it would be helpful to review medical records, legal records along with police records and videos. I often will interview collateral informants as well. In Ms. Holmes’s case there maybe, media accounts, if admissible, as well as financial records and corporate documents. Of course, an expert would review the other expert witness reports. Records in a violent crime could include an autopsy, or blood splatter expert reports, for example. In the Holmes case, there may be a forensic accounting or fraud expert report.  Other sources of data could include polygraph testing, school records and employment records.

NR: In the Holmes case, the defense has retained a trauma expert. Is it common to successfully assert an insanity defense in cases of PTSD?

SA: Insanity defenses are more commonly associated with other diagnoses that are considered to be more severe forms of mental illness such as schizophrenia, bipolar disorder and IDD because they have a different impact on decision-making and regulating behavior. Although many individuals with PTSD do suffer with severe symptoms, they are generally able to maintain awareness of the nature of their acts and appreciate the wrongfulness of such acts. In jurisdictions that allow for the volitional prong, individuals with PTSD are generally considered to be able to behave lawfully. Of course, there are cases where PTSD is successfully asserted as an insanity defense.[3] In cases where the defense attorney realizes the PTSD does not lend itself for an insanity defense, they may successfully utilize it for sentence mitigation.

[1] United States v. Bennett, 29 F. Supp. 2d 236 (E.D.Pa. 1997), aff’d 161 F.3d 171, 183 (3d Cir.1998), cert. denied, 528 U.S. 819, 120 S. Ct. 61, 145 L. Ed. 2d 53 (1999)

[2]Does A Psychopath Who Kills Get to Use the Insanity Defense? NPR, 8/3/16, by NATALIE JACEWICZ

[3]PTSD as a Criminal Defense: A Review of Case Law by Omri Berger, Dale E. McNiel and Renée L. Binder; Journal of the American Academy of Psychiatry and the Law Online December 2012, 40 (4) 509-521;

Criminal JusticeExpert WitnessForensic PsychiatryUncategorized

Coerced Suicide: Forensic Psychiatry Expert Witness Details Murder by Proxy

on November 5, 2019

Last week the news exploded with the story of Alexander Urtula’s suicide. The story garnered attention because of the allegedly outrageous actions of Mr. Urtula’s ex-girlfriend, Inyoung You, who is accused of psychologically manipulating Urtula and pushing him to kill himself.

Reports from the Boston Globe outlined the accusations against Inyoung You, a 21-year old former Boston College student and South Korean national, who badgered her ex-boyfriend into committing suicide.

In an editorial article calling for a coerced-suicide law in Massachusetts, the Boston Globe stated “According to prosecutors, You psychologically and physically abused her boyfriend, Alexander Urtula, over an 18-month relationship, and repeatedly urged him to kill himself. The two exchanged 75,000 text messages, which Suffolk County District Attorney Rachael Rollins said showed You’s ‘complete and total control over Mr. Urtula both mentally and emotionally.’”

Readers may recall a similar incident, out of Massachusetts, which made headlines back in 2017 when Michelle Carter was tried for involuntary manslaughter for the death of her boyfriend, Conrad Roy. You can read more about that case in this Washington Post piece.

These two cases from the same state, with strikingly similar fact patterns, ending in the suicide death of two young men has made the state consider a law about coerced-suicide. An issue, I might add, my lay mind never would have considered necessary.

The reason Massachusetts is considered a coerced-suicide law is pretty straight-forward. Michelle Carter was prosecuted and convicted of involuntary manslaughter. Inyoung You, is now being charged with the same crime. However, the punishment for involuntary manslaughter in Massachusetts, carries a punishment of up to 20 years. Whereas a proposed law, Conrad’s Law (named after Michelle Carter’s victim), would make punishment for coerced-suicide a 5 year maximum sentence.

To me this makes sense. If you do not actually cause the death (i.e. pull the trigger or pilot the automobile) then you should not face the same criminal liability as someone who did cause loss of life. With that said, you need to be punished for being a truly terrible person and manipulating someone to take their own life.

Now, I do have difficulty with words being used to convict someone of a crime. The ACLU had difficulty with this too when they criticized the Michelle Carter case. They felt it would chill free speech. I understand that concern, so I needed to dig into the psychological manipulation and coercion aspect a bit deeper.

Lucky for me, I have access to an incredible database filled with expert witnesses and consultants. Turns out I didn’t have to look far, because one of my members, Dr. Sanjay Adhia was already sharing about the subject matter on social media. So we coordinated a little question and answer on the topic.

Forensic Psychiatry Expert Witness Dr. Sanjay Adhia:

Dr. Sanjay Adhia is triple-Board-Certified in Psychiatry Forensic Psychiatry and Brain Injury Medicine. In addition to forensic/expert witness practice, Dr. Adhia serves as the Assistant Professor of Psychiatry at University of Texas Health and Science Center and a Psychiatry Consultant at The Institute for Rehabilitation and Research (TIRR) Memorial Hermann in Houston. He treats those with brain and spinal cord injury who have complicating psychiatric disorders along with general psychiatry and addiction psychiatry patients.

His forensic practice focuses on the psychiatric impact of personal injury, abuse, competency, violence, intoxication and complicating mental illness. He is experienced at assisting attorneys in medical malpractice and wrongful death claims. He also performs occupational and other Independent Medical Exams. In addition, Dr. Adhia works with Physicians for Human Rights and DAYA Houston to assess victims of kidnapping and false imprisonment, human trafficking, undue influence, physical and sexual abuse and rape. Learn more about Dr. Adhia’s practice by visiting his webiste: www.forensicpsychiatrynow.com.

Let’s get to the nitty-gritty. I provided questions and Dr. Adhia provided some outstanding answers regarding coercion.

NR: According to the article from the Boston Globe, coerced-suicide has not been defined by law. Does forensic psychiatry have a definition? If not, can you describe how you would define “coerced suicide?”

Dr. Adhia: As far as I know, there is no formalized definition of “coerced suicide” for forensic psychiatrists. With coerced suicide, there could be an element of undue influence which is defined as “influence by which a person is induced to act otherwise than by their own free will or without adequate attention to the consequences”[1]. I believe “coerced suicide” should be distinguished from “assisted suicide”.

NR: Can you describe what one may be going through when considering suicide?

Dr. Adhia: Suicidal ideations are generally accompanied by severe distress.  Suicide is seen as a solution to the distress and may be perceived as the best if not only solution. It may start with fleeting thoughts without intent to more frequent thoughts with intent. One may then consider various methods of suicide and develop a plan. There could be several suicide attempts before a completed suicide.  Of course, there are instances when a catastrophic stressor or coercion may lead to an impulsive suicide without a preceding history.

From the media account, Mr. Urtula was described as having depression. One of the potential symptoms of Major Depressive Disorder (MDD) are suicidal ideations.  Additionally, victims of abuse can have suicidal ideations without necessarily having depression.

With additional information, we may be able to determine if Mr. Urtula had suicidality brewing for months or if he was suddenly coerced to jump without any preceding suicidal intent.

NR: This is now the second high-profile case involving young women encouraging a boyfriend to end his own life. Would this qualify as a form of domestic abuse according to psychiatrists?

Yes. However, I would expect there be other forms of abuse present preceding the coerced suicide. The literature often refers to domestic abuse as Intimate Partner Violence (IPV). According to the Centers for Disease Control and Prevention[2], there are four types of IPV:

  1. Physical violence
  2. Sexual violence
  3. Stalking
  4. Psychological aggression

Coerced Suicide would be consistent with psychological aggression which is defined by the CDC as “use of verbal and non-verbal communication with the intent to harm another person mentally or emotionally and/or to exert control over another person”. According to prosecutors, Mr. Urtula endured both physical and psychological abuse. The fact that he was located at the parking garage may represent stalking.

Of note, Intimate Partner Violence in of itself, absent suicide coercion, can lead to unintended suicide.[3]

NR: Would coercion in a suicide case (involuntary manslaughter) be similar to the coercion involved in an “undue influence” matter? Are the power dynamics similar?

Dr. Adhia: Coercion is one of the tactics involved in undue influence. Undue influence constitutes controlling others by utilizing the dominance or authority in a relationship, taking advantage of a vulnerability and by employing certain tactics.[4] These tactics include controlling necessaries in life, using or withholding affection, intimidation and coercion. Coercion is the act of threatening to compel an act.

It is worth referring to the proposed “Conrad’s Law” which indicates coerced suicide involves “substantial control or undue influence over the victim, or to have manipulated their behavior through fraud or deceit”.[5]

NR: Some stories I’ve read, indicate Inyoung You had “complete and total control” over Mr. Urtula. How would a person find themselves under complete and total control of a significant other?

Dr. Adhia: To understand how Ms. You would achieve such control; one can look at the cycle of IPV[6] which consists of:

  1. Tension Building Phase
  2. Acute Battering Episode
  3. The Honeymoon Phase

In the first phase, the victim attempts to appease the perpetrator in hopes of avoiding abuse. It may feel as if the victim is walking on eggshells. Eventually the tension will build and phase two will occur with the abuse. Afterwards, there will be a honeymoon phase where the abuser will convince the victim to stay in the relationship. The abuser could promise an end to the abuse. Many of the victims have been are conditioned to be highly dependent on the abuser. They may be convinced they will be unable to obtain love and happiness without the abuser. This may help explain why Mr. Urtula did not leave Ms. You and how she was able to gain control of him.

According to the CNN article, Ms. You threatened self-harm to manipulate Mr. Urtula in order to control and isolate him. She sent him over 47,000 texts and commanded him to end his life.  The abuse escalated just prior to the suicide. She tracked the location of Mr. You and was at the scene of the parking garage where he jumped to his death.

In Mr. Urtula’s case, it is likely he was rendered particularly vulnerable due to depression. Some of the symptoms of depression include fatigue, indecisiveness, decreased concentration along with feelings of worthlessness, helplessness and hopelessness.

With the interplay of Depression accompanied by the tactics and dynamics of IPV, one can get a sense of how Ms. You could achieve “complete and total control” over Mr. Urtula.

NR: Anything additional you feel like you need to add to this story… Please do so.

Dr. Adhia: The hope is someone with suicidal ideations in a relationship would have a supportive partner who will encourage their loved one to seek help. In extreme cases, a partner can call 911 and involuntary treatment in a psychiatric hospital can be sought. There are unfortunate instances when the partner does not recognize the signs of suicide or does not know help is available.  In Mr. Urtula’s case, it appears his partner literally pushed him off the parking garage.

The mass suicide in Jonestown by devotees of Jim Jones could be considered a mass coercion. Jim Jones had his followers practice drinking the Kool Aid. Having the children drink the Kool Aid first served to coerce the parents to follow course.

The Urtula and the Conrad case reminds us both males and females can be victims of Intimate Partner Violence. It is worth noting that the dynamics could be more complicated if there are children involved and the victim is financially dependent on the perpetrator.

If a victim is danger of imminent violence or suicide, call 911 to obtain immediate assistance. Other phone numbers can be found https://ncadv.org/resources.

Special thanks to Dr. Sanjay Adhia for taking the time to help educate us about this unfortunate matter of coerced-suicide. Please share this article with those who need to read it. Please take care of those around you. Let’s all try to be a little nicer to each other.

[1] Lexico Definition https://www.lexico.com/en/definition/undue_influence

[2] Preventing Intimate Partner Violence https://www.cdc.gov/violenceprevention/intimatepartnerviolence/fastfact.html

[3] Intimate Partner Violence – A Pathway to Suicide By Tony Salvatore https://leb.fbi.gov/articles/featured-articles/intimate-partner-violence-a-pathway-to-suicide

[4] Defining Undue Influence Mary Joy Quinn (October 15, 2018) https://www.americanbar.org/groups/law_aging/publications/bifocal/vol_35/issue_3_feb2014/defining_undue_influence/

[5] Bill calls for coercion to be a crime https://www.sentinelandenterprise.com/2019/07/25/bill-calls-for-coercion-to-be-a-crime/

[6] The Cycle of Domestic Abuse https://www.domesticviolenceroundtable.org/domestic-violence-cycle.html

Criminal JusticeCriminal LawForensic Psychiatry

Date Rape Drugs: Expert Comments on Unreliable Tests, Harming Prosecutions

on March 4, 2019

A few weeks back, BuzzFeedNews wrote an in-depth article on the unreliability of date rape drug testing and how the tests harm investigations and often prevent prosecutions.

Reading the article angered me. I became frustrated over the additional harm done to victims from a lack of national testing standards. My gut feeling was our lack of national or even statewide standards and capabilities, results in victims being re-victimized after a rape.

As with many other blog posts, it forced me to dig a little deeper and communicate with experts to see who was available to comment on this topic, to continue the discussion. Hopefully, by continuing the discussion we might shine more light on the problem and bring it one step closer to a solution.

Without reliable testing standards, how do we preserve evidence for a future prosecution? Even worse, how do we even know if the victim was drugged? If we do not set a standard, how will medical facilities know which drugs to test for during a DFSA screening? Furthermore, we need a comprehensive testing protocol to determine the standard of care when drug-assisted rape is suspected.

Normally, I provide my “two-cents” on a subject before diving into the Q&A with an expert witness. With this subject, I want to hear directly from the medical professional, and I’m sure the readers feel the same.

Forensic Psychiatry Expert Witness Sanjay Adhia

Dr. Sanjay Adhia is triple-board-certified in psychiatry, brain injury medicine and forensic psychiatry. In addition to forensic/expert witness practice, Dr. Adhia is medical director of PACE Mental Health Clinic in the Houston area.  His forensic practice focuses on the psychiatric impact of personal injury, abuse, competency, violence, and complicating mental illness. Dr. Adhia evaluates and treats psychiatric injury and disability in victims and alleged abusers. Dr. Adhia is among one of the few forensic psychiatrists who is board-certified in Brain Injury Medicine. To learn more about his forensic psychiatry practice, visit: https://www.forensicpsychiatrynow.com/.

Nick: You have written about the issue of date rape drugs in this article  (also found directly on Dr. Adhia’s website: https://www.forensicpsychiatrynow.com/date-rape-drugs) in the past. What are some drugs commonly used in date rape assaults?

Dr. Adhia: Common characteristics of many drugs used in Drug Facilitated Sexual Assaults (DFSAs) include the ability to incapacitate a victim and to cause anterograde amnesia (inability to recall the assault).

There are quite a few drugs commonly used in DFSAs. The most common and readily available drug is alcohol. Sedatives that are used by perpetrators include Ambien. Benzodiazepines, a class of medications used to treat anxiety, are often employed in DFSAs.  They include Valium, Xanax, Ativan and Rohypnol (“Roofies”). Gamma-hydroxybutyrate (GHB), a recreational drug with stimulating and sedating properties, is preferred by some perpetrators as it leaves the body quite rapidly. Ketamine (an anesthetic), Ecstasy (MDMA) and Soma (muscle relaxant) are additional examples of date rape drugs.

Nick: According to the BuzzFeedNews article, there are no national standards with regards to drug testing for date rape drugs. Do you have any recommendations for testing standards?

Dr. Adhia: I would recommend national standards. These standards could establish certification requirements for labs, lab staff and physicians who interpret the tests. For, example there are physicians who are certified to be an MRO (Medical Review Officer). They have expertise in interpreting drug tests.  The standards should include time-specific criteria for the various samples to be tested (blood, urine or hair). There should be a list of drugs that are required to be tested. Recently, I was involved in a case where the sample was destroyed after a year and GHB was not included in the testing battery. The standards should establish reliable methodology and concentration cut-offs for each tested substance. Ideally, there should not be any false-negatives or false-positives. Confounding factors could be considered in national standards.

Nick: In the past, I only ever heard it referred to as “date rape.” I understand it is now called Drug-Facilitated Sexual Assault (DFSA). Is there a national committee working to create standards for addressing DFSA cases?

Dr. Adhia:

A National Protocol for Sexual Assault Medical Forensic Examinations, 2nd Edition was published by the Department of Justice Office of Violence Against Woman. It includes a section on drug and alcohol testing. (Refer to https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf page 107).

Internationally, the United Nations has published “Guidelines for the forensic analysis of drugs facilitating sexual assault and other criminal acts.”

Nick: In your forensic psychiatry practice, how do you go about treating those suffering the aftermath of DFSA? For example, victims often cannot remember the attack, so what approaches are used? With what issues are victims likely to suffer after DFSA (i.e. depression, anxiety)?

Dr. Adhia: Drug-induced amnesia is not protective of PTSD and other disorders that can occur after a DFSA. For example, some of Bill Cosby’s DFSA victims reported symptoms indicative of PTSD in their victim-impact statements. Many of his victims had life-long effects such as a reduced ability to trust men and form relationships, panic attacks, and nightmares. In DFSAs, there can be a sense of shame and self-blame. A victim could be at increased risk for substance abuse or suicide.

The treatment for PTSD and other co-occurring disorders such as depression or anxiety disorders include medications and counselling. Two medications often used in PTSD include anti-depressants and a blood pressure medication that helps reduce the nightmares. Occasionally, mood-stabilizers and anti-psychotic medications are used to target associated symptoms such as irritability.  Counselling includes individual and group psychotherapy.

Nick: Any other comments on concerns you wish to share about this crime…

Dr. Adhia: With increasing awareness, the hope is victims act promptly to preserve evidence for prosecution. Many of these drugs will exit the body in under three days or less. A victim can save his or her urine in a clean and closed container and refrigerate it promptly. A rape kit should be performed as soon as possible. The National Sexual Assault Hotline can be called at 800.656.HOPE to find a medical center for a sexual assault forensic exam with urine and blood testing for drugs.

Prompt treatment of the medical and psychiatric sequelae of DFSA is critical. A victim should be monitored and treated for any drug toxicity. There have been unfortunate cases of overdose such as with Tammy Homolka who choked on her vomit after being drugged with halothane in the course of a DFSA committed by her sister, Karla Homolka and Paul Bernardo. Emergency birth control and STD treatment is often indicated after sexual assaults.

Victims should be evaluated and treated for psychiatric disorders soon after the assault. The hotline number above can be contacted to provide referrals.

 

Again, the National Sexual Assault Hotline phone number is: 800.656.HOPE. The hotline is maintained by RAINN (Rape, Abuse & Incest National Network). They also have live chat options available on their home page: https://www.rainn.org.

 

 

Criminal LawExpert WitnessForensic Psychiatry

Golden State Killer, Part 2: Forensic Psychiatry and the Rapist and Serial Killer

on May 14, 2018

As readers of Part 1 are aware, I’m following this case closely due to the connection to our local community. If you are anything like me, you wonder how someone could allegedly commit so many heinous crimes? Then, after a decade of committing dozens of rapes and multiple murders, the suspect ends his reign of terror (at least as far as we know).

What We Know:

From 1976 to 1986, a violent criminal struck fear throughout the State of California. Twelve murders, 45 or more rapes, and more than 100 hundred residential burglaries are attributed to one man. Authorities have indicated the suspect was meticulous in the planning of his crimes, which started as burglaries and escalated into violent offenses.

The crime spree spanned Northern and Southern California, including Sacramento, San Joaquin, Orange, Ventura, and Contra Costa Counties. The suspect was known by many names, such as Visalia Ransacker, Diamond Knot Killer, Original Night Stalker, East Area Rapist, and more recently the Golden State Killer. It wasn’t until a couple of years ago that DNA evidence connected the dots of all the crimes and detectives realized the crimes were committed by the same individual.

An arrest was made in late April. After using an innovative investigative technique (submitting a DNA profile to a free online ancestry database), detectives identified James Joseph DeAngelo, Jr., a former police officer and mechanic living in Citrus Heights, California.

What Makes Someone Commit Such Crimes?

Violent crimes are difficult for most of us to understand. Certainly we’ve all had emotional moments that could have resulted in a terrible decision had we lost self-control or been otherwise unbalanced. Although I don’t condone violence, I’ll admit reading about crimes where the violent result was understandable. Not acceptable, but understandable. For example, a parent acting violently towards someone who harmed his or her child is the type of violent behavior I can understand.

How do we reconcile vengeful, “loss of control,” or “heat of passion,” violence with violence that seems to be done for pleasure? Why does an offender experience joy from inflicting pain and fear upon a victim? What causes a person to lead a life of rape and murder?

There are so many questions on this topic. Does a lack of understanding make us more fearful? Does the human condition require a rational explanation for irrational acts we cannot fathom?

A little information before we continue:

For this portion of our series on the Golden State Killer, I sought input from a forensic psychiatry expert witness. Part 3 of this series will include input from one or more forensic psychologists.

It is important for readers to understand the difference between psychiatry and psychology. Allow me to differentiate between the two. For any psychologists and psychiatrists reading this post, I apologize for the very simplified descriptions of your professions, but we’ve had lawyers contact us looking for an expert, unaware of the distinction.

A psychiatrist is a medical doctor (MD, DO) capable of prescribing medications to address mental, emotional, and behavioral disorders. They generally focus on diagnosis and treatment. A psychologist is not a medical doctor. Psychology-based doctoral degrees are usually Ph.D or Psy.D. They generally are unable to prescribe medication and focus more on helping patients to effectively cope with mental, emotional, or behavioral disorders via psychotherapy (non-medical treatment). Again, this is an oversimplification of two highly complex professions.

Today, we will be addressing the Golden State Killer with some input from Experts.com member and forensic psychiatry expert, Dr. Stephen M. Raffle.

Stephen M. Raffle, MD – Forensic Psychiatry Expert Witness:

Dr. Stephen Raffle is double board-certified in Psychiatry and Forensic Psychiatry. He has over 40 years of experience as a clinical and forensic psychiatrist offering his expert opinion in federal and state jurisdictions nationwide. Dr. Raffle has conducted over 5,000 psychiatric assessments in his career and was a professor of psychiatry at UCSF Medical Center for 20 years. You can learn more about Dr. Raffle by visiting his website: psychiatristexpertwitness.com.

Nick: Are there common psychological attributes among serial killers?

Dr. Raffle: A common feature is a lack of empathy with victims. Most serial killers ​(with few exceptions) understand they are committing a crime because they take care not to be caught. Antisocial Personality Disorder and Borderline Personality Disorder commonly are present. Sadomasochism is also a common feature. Depending on the shared characteristics of the victims, the serial killer may have problems with impotence, paranoia, or sexual perversions which cannot otherwise be satisfied. Paranoid Schizophrenia is a common psychiatric disorder but not universal. A diagnosis of paranoid schizophrenia, in and of itself, does not necessarily justify a finding of insanity, because “insanity” is a legal construct, not a psychiatric diagnosis.

Nick: If so, what types of psychological attributes are common among serial killers?

Dr. Raffle: Refer to my response in No. 1 above. In addition, the psychiatric disorders, as diagnostic entities, may include:  ​Sadomasochistic Personality Disorder, Necrophilia, Paranoid Schizophrenia, Borderline Personality Disorder, Antisocial Personality Disorder, or other psychotic disorders.

Nick: Does a serial rapist or serial killer experience joy or pleasure from tormenting and harming their victims?

Dr. Raffle: Yes.​

Nick: If so, why is it they experience joy or pleasure from inflicting pain or committing murder?

Dr. Raffle: In each instance, the torture is combined with sexual arousal (which is commonly not acknowledged by the perpetrator), leading to an emotional discharge, often overtly sexual in nature​ upon the death of the victim. Following the murder, serial killers have recurrent fantasies about various aspects of the ritual associated with the killing, which brings satisfaction. Over time, the recurrent fantasies become progressively less satisfying, (i.e., “old news”) resulting in a need for new fantasy material. Hence, the serial nature of the murders.

Nick: Can forensic psychiatry explain how one becomes a serial killer? Or, what causes one to become a serial killer?

Dr. Raffle: The prediction of violence in a specific individual is difficult, given the extremely rare occurrence of serial killers. Certain risk factors are identifiable for predisposing an individual to violence; however, the constellation of symptoms, behaviors, life experiences and genetic makeup makes it impossible to identify serial killers before the fact or even to explain how one “becomes a serial killer.” That said, a propensity toward violence most commonly occurs in individuals who have a prior history of violence, premeditated violence, paranoia, a strong impulse for revenge, drug and/or alcohol abuse, Antisocial Personality Disorder, Borderline Personality Disorder, the experience of repeated childhood sexual abuse and/or physical abuse, obsessional thinking, unresolved gender identity issues, sadomasochism, and conflicts about dominance/submission. The causes to become a serial killer commonly include prior sexual fantasies, coupled with torture ending in murder. The shift from fantasy to reality may occur following a personal crisis and need for greater satisfaction than is provided by the fantasy. Once the taboo of murder is breached, the serial killer is freer to convert subsequent emotional needs into murderous actions. Most serial killers have a ritualistic aspect to their killing which reflects their unconscious needs and conflicts, such as killing prostitutes, homosexuals, homeless people, or other such categories. The commonality of the victims usually is based on childhood experiences, parental attitudes, and psychosexual conflicts.

Nick: Are there common childhood development (characteristics or circumstances) issues among serial killers?

Dr. Raffle: The most common childhood development characteristics and circumstances include parental neglect, inconsistent parental behaviors, resulting in excessive, unpredictable punishment​ unrelated to wrongdoing, physical or sexual abuse by a parent or close relative, extreme religious beliefs, isolative behaviors as a child, poor impulse control, conduct disorder during childhood, victimization of various sorts during childhood, to name several.

Nick: News reports indicate the Golden State Killer was active between 1976 and 1986. Is it likely he stopped committing these crimes?

Dr. Raffle: On a probability basis, he didn’t stop committing his crimes after 1986. The nature of his fantasies may have changed over time such that subsequent murders were dissimilar enough from the earlier murders that they don’t share enough commonality to identify him as the perpetrator.

Nick: Is it uncommon for a serial killer to stop committing crimes?

Dr. Raffle: It is common for a serial killer to continue committing crimes.

Nick: Are there items you think the public should know about forensic psychiatry, as it relates to the Golden State Killer, that I have not covered in the above questions?

Dr. Raffle:

a) Serial murder is an extremely uncommon occurrence. It is extremely difficult to prospectively predict a particular person will become a serial killer, irrespective of the forensic psychiatrist’s ability.

b) The ritualistic behaviors of a serial killer do not define insanity or even suggest it​. Serial killers as a group are cunning individuals who seek not to be caught, who do not confess, and who obtain considerable self-satisfaction at the expense of their victims.

c) Serial killers as a group do not understand the intrinsic causes of their behavior and are extremely unlikely to be cured of their obsessional murdering. As the practice of psychiatry now exists, it is unreasonable to expect successful treatment of a serial killer.

d) The FBI Behavioral Studies Unit has interviewed and analyzed all of the serial killers who have been brought to justice. Certain statistical profiles exist which assist law enforcement to “profile” a serial killer based upon the victim type and associated rituals. Roy Hazelwood headed the unit for approximately 20 years and probably knows more about serial murderers than anyone else. His work has been instrumental in creating “profilers.”

e) The psychological makeup of serial killers is different from mass murderers. Serial killers who kill by sniping random people or cars are psychologically more similar to the mass murderer than the serial killer because they usually snipe more than one person during a shooting episode.

f) Contract killers are not serial killers. The mentality of a paid assassin is essentially that of an antisocial ​person who does not empathize with his victims and is therefore comfortable earning his or her living killing others. The obsessional quality or ritualistic behavior of the serial killer is not shared with the assassin. Their only common ground is they have killed more than once. The difference is the assassin is told whom to kill and is paid for it; whereas the serial murderer chooses his victims and engages in other behaviors in addition to a murder which satisfies unconscious needs. Conceptually, as serial murderers go, the assassin is “professional” and the serial murderer is a “hobbyist.”

Stay Tuned:

A huge thank you to Dr. Raffle for his very thorough insight into the mind of the Golden State Killer. Next week we’ll be bringing you more insights on the psychological nature of this perpetrator with input from some of our forensic psychology expert witnesses.