Another Tragedy Grips a High School
John Odgren was enrolled in a class on forensic science at his high school, in one of Boston's bucolic suburbs. Always awkward with his classmates, John had started wearing a trench coat and fedora to school. Students who tried to befriend him were put off by his obsession with knives and common discussion of violence. During one class session, John outlined his plan for the perfect murder, which involved luring a trusting acquaintance to a remote location and using a knife to kill him. Classmates were freaked out by John's seemingly cold-hearted calculation and devious planning. As it turned out, they had every reason to be.
Not long afterwards, John Odgren followed a shy sophomore, new to the school, into a bathroom and stabbed him to death with a long knife he had brought to school. Odgren told investigators that he had brought the knife in for protection, convinced by the symbolism in a Stephen King novel that something horrible would happen to him that day. Another student, who just happened to be in one of the stalls, heard the victim call out, "Ow! You're hurting me! Why are you doing this?" The student emerged to find John Odgen sitting on the bathroom floor, knees pulled up to his chest, holding the bloody knife.
As horrifying as this scene is, there would seem to be little remarkable about it from a criminal justice perspective. One person committed a completely unprovoked act of violence against another. The outcome would seem to be clear.
The Psychology of Intent
There is, however, one significant wrinkle to this story. John Odgren has been diagnosed with Asperger's Syndrome, which lies along the autism scale. Asperger's sufferers are usually characterized by normal to high intelligence (Odgren allegedly has an IQ of 140), but the inability to experience the empathy necessary to form emotional bonds with others. This disability is often manifested in, among other things, the inability to recognize emotional expressions in others. That is, while you or I can distinguish a smile from a frown (and what each implies), someone with Asperger's Syndrome cannot.
In Massachusetts, the mens rea requirement for first-degree murder is "deliberate and premeditated malice." For second-degree murder, a killer must have experienced "malice aforethought."
Malice aforethought is generally defined as: "the conscious intent to cause death or great bodily harm to another person before a person commits the crime." Note that it must be a conscious intent. So, if a person forms the intent in a hallucinogenic haze, it does not suffice for malice aforethought.
John Odgren is employing an insanity defense to the murder charge, claiming that his psychological condition (He also has ADHD, a bipolar disorder and possibly OCD) precluded his ability to consciously form the necessary intent to commit murder. Massachusetts has adopted the Model Penal Code definition of "legal insanity." Under this test, "a person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."
Jury must determine criminal culpability
This murder case then will boil down to a jury's collective decision about whether John Odgren did or did not appreciate the wrongfulness of his actions on the day that he stabbed that fellow student. The trial itself is now complete. The arguments followed fairly predictable lines. The DA emphasized the calculating nature of the crime and its similarities to what John Odgren seems to have been considering for weeks. The defense focused on Odgren's myriad psychological problems, constant harassment at school and increasing obsession with violent books, movies and video games. The defense presented three psychologists who testified that Odgren committed the violent act while essentially in an obsessive trance. They concluded that he was essentially shocked back to reality by observing the horrific consequences of his actions. The DA presented a rebuttal expert who, while not disputing the general diagnoses of Odgren's conditions, concluded he was nonetheless capable of discerning right from wrong.
There are actually two questions to be answered. Even if the jury determines that John Odgren understood the criminality of his actions, the jurors must wrestle with the question of whether he was psychologically capable of resisting his persistent violent urges and compulsions. The final item presented by the DA during closing arguments was an audio recording of Odgren laughing about what investigators found while searching his bedroom. This is intended to show a lack of remorse and an arrogance by Odgren about his ability to get away with the crime. Such callousness can cut both ways, however, as jurors might conclude that anyone who could react that way while in prison for murder must be out of touch with reality.
The need to make sense out of chaos
I believe that the defense strategy in this case was incomplete.
The defense team did a fairly good job of portraying Odgren as a thoroughly disturbed teenager with a history of mental problems. This is an important linchpin of the case, as it provides an opportunity for those jurors who don't want to hold him responsible to make their arguments. A "not guilty by reason of insanity" vote passes the proverbial sniff test.
Unfortunately, this only provides jurors with half of what they need to achieve emotional satisfaction from a not guilty vote. People need order in their lives. They need to be able to make sense of the world around them. They need to feel some control over their environment. Without this sense of control, life becomes unbearable. This explains, in part, people's visceral fear of the unknown. It also explains attachments to rituals, customs, religions and other systems that preserve the status quo.
The tragic death at the center of this case -- violent, senseless, seemingly random -- must seriously disturb the jurors' need for order and control. It is a parent's worst nightmare -- the loss of a child in a way that no parent can anticipate. The natural response of the jurors in this case will be to try to impose order on the situation. The idea that this was a freakish, unanticipated, random tragedy, for which no-one is really responsible, will be a completely unbearable option for the jurors. It just won't do.
So, the defense has provided the jurors with reasons not to blame John Odgren for this tragedy. What the defense has failed to do is provide them with someone else to blame. Trust me on this one: the jurors will need to blame someone. The only question is whether they will blame John Odgren or someone else.
had I been advising the defense team in this case, I would have recommended telling a somewhat different story. This is the narrative I would have crafted:
There are two victims in this crime. The dead boy and John Odgren were both failed by a system that too often shuffles emotionally ill children from program to program, treating them like human guinea pigs, testing out their most recent theories of mainstreaming or immersive learning. The so-called experts in this case didn't protect John Odgren from the bullies. They didn't protect John Odgren from the demons in his head. They didn't protect him from himself. And because of their failures, one boy is dead and another might as well be, ruined for life by a disaster that didn't have to happen. The signs were there for years. The thoughts of suicide. The absence of emotional control. The inability to feel any emotions but fear and anger and hate. The psychologists and teachers and school administrators weren't in that bathroom on that terrible, fateful day, but they might as well have been, handing John Odgren his knife.
Would this argument have worked in this case? We will never know (although I suppose we could run some focus group research in other parts of the country). What I do know is that these jurors need a way to direct their grief and their fear and their anger, someone to hold responsible. They need to be able to wrap their brains around the case and conclude that they have identified the villain. The defense had a responsibility to their client to give the jury someone else to blame.
Jurors will speculate about lots of things. Nothing precludes them from assigning blame all over the map in this case, regardless of whether the defense has pointed its finger at any particular candidates. Perhaps the jurors will find their own way to sparing John Odgren in this case. If they do -- if they find him not guilty -- I fully expect to discover that they did so by assigning blame elsewhere.
As the verdict comes in, I will be sure to report it here on my blog. I'll offer some post-trial comments and I'll keep you abreast of any juror interviews that appear in the press.
Recent Jury Box Blog Entries
Showing posts with label murder. Show all posts
Showing posts with label murder. Show all posts
Wednesday, April 28, 2010
Thursday, January 28, 2010
Defense must play blame game in Rebecca Riley murder trial
The tragedy
Rebecca Riley, age 4, died in the throes of pneumonia, while very heavily medicated on Depakote and Clonidine, intended to treat ADHD and bipolar disorder. Her parents, Carolyn and Michael, are on trial for Rebecca's murder (Read about the trial here). According to prosecutors, Carolyn and Michael routinely lied to doctors in an effort to get all their children prescribed strong drugs, eventually finding a Boston psychiatrist willing to believe them and hand out ever-stronger doses. Prosecutors claim that the Rileys cared only about making their children easy to manage, regardless of any adverse health consequences, and collecting federal disability benefits. Eventually, after being given extremely high dosages of these powerful drugs, even by adult patient standards, Rebecca died in her parents' home.
When a tragedy like this strikes, it is quite natural for ordinary people to want to assign blame. Someone must have been responsible and that person should be held accountable. Why is there such a palpable need to assign blame? It stems from several reinforcing psychological phenomena.
The human need for answers and accountability
The first is a natural aversion to reminders of one's own mortality. We don't like to feel vulnerable. Therefore, when bad things -- deadly things -- happen to others, our brains automatically generate reasons why such threats aren't dangerous to us. A standard response is to generate distinctions between the victim's circumstances and our own. Some distinctions are circumstantial, while others are directed at choices made by the victim or some other responsible party.
A second psychological response to such a tragedy is to shrink back from the randomness of a bad event. We don't like to think that we are not in control of our own lives. We like to think that our own actions and choices will insure our own well-being. Therefore, people tend to overestimate the control that someone else could have exercised over a difficult situation. This is because any bystander would like to believe that, had she been in the same situation, she would have been able to stop the tragedy from occurring.
Finally, as I have written about on a number of occasions, hindsight bias is always at play when rare events take place. Ordinary people have a great deal of trouble processing the true chance of very unlikely events. The numbers just get too small for the brain to easily process. (What does a 1-in-500,000 chance really look like?). Also, the cognitive availability of an event (after all, the event is the focus of the trial) makes it seem more likely to have occurred. This tendency to overestimate the likelihood of an event also results in people overestimating the events predictability and preventability. An odd second-order effect is that the more peculiar the circumstances, the more likely people are to assume that a tragedy could have been averted.
Jurors are not experts in risk assessment. They typically don't have degrees in statistics or bioinformatics. They are ordinary folks, tasked with processing some very foreign circumstances. As such, they will be subject to the kinds of cognitive tendencies outlined above. The Rebecca Riley death is a very strange story. The loss of a young child is every parent's worst nightmare. The world of pediatric psychiatry seems very alien to all of the jurors. All of these factors will combine to make the jurors very eager to find someone to blame for this horrible tragedy. Once they assign blame, they can go back to believing that such a thing could never happen to them.
What should the defense team do?
This is the environment in which Carolyn and Michael Riley are being tried. One defense strategy might be to portray this death to the jury as an unfortunate accident. For the reasons I outline above, I think this will be an extremely tough sell. A better strategy would be to try to deflect blame onto others. Let the jurors have their culprit, but try to convince at least some of them that the culprit is someone other than the defendant.
The defense team took a sensible first step in this direction by requesting separate trials for the two parents. This allows each to deflect responsibility to the other. The key for Carolyn's legal team is to get at least some on the jury to assign more responsibility to her husband than to her. Frankly, based on what we have heard so far, such a tactic would seem more promising for Michael's defense than for Carolyn's.
The second likely candidate for deflected blame is the psychiatrist who prescribed the medication. Dr. Kayoko Kufuji has now testified in Carolyn's trial. While she came across as detached and somewhat clueless, which points to her own negligence, the prosecution did a very good job of showing how Dr. Kufuji relied very heavily on Carolyn Riley's own characterizations of her children, when making her diagnoses. As such, Kufuji's failures seem largely the result of Carolyn Riley's dishonesty and manipulation.
The third candidate for deflected blame, and the one I think is most likely to garner some sympathy with jurors, is Carolyn Riley's own mental state. The prosecutor is trying to paint a picture of a calculating, manipulative mother who happily endangered her children to keep them docile and to collect federal disability checks. The defense might just gain some traction by telling the jury that she was mentally unbalanced. There are official conditions, like Munchausen-by-proxy, where parents imagine or invent illnesses in their children to fulfill a pathological need for attention. Alternatively, the defense could attribute her extreme behavior to the abusive treatment by her husband. Michael Riley has been banned from a prior residence due to violent behavior and Carolyn Riley once took out a restraining order against her husband, ostensibly to protect her children. Under such a scenario, the defense can contend that the system let Carolyn down, enabling behavior that was not only self-destructive, but also endangered the Riley children.
Will it work?
Jurors are generally skeptical of victimization arguments like the one I outline above, but it seems the best strategy in a case like this. There is a documented history of spousal abuse. Many authority figures who interacted with Carolyn and her children failed to take official action. Remember that only one juror needs to be convinced that Carolyn Riley wasn't completely responsible for her own actions to avoid a murder conviction.
The defense strategy needs to be focused on getting Carolyn's sanity into the discussion in the jury room. They need to open the door for those who might be inclined to take pity on her. I rather doubt that the jury will initially be unanimous in its evaluation of her culpability. Arguments will be heated. Tears will be shed. Playing up the defendant's mental instability might not keep her out of jail, but I could see a conviction on a lesser included offense, such as involuntary manslaughter. Given what has transpired in court so far, that would probably be considered a victory for the defense.
Rebecca Riley, age 4, died in the throes of pneumonia, while very heavily medicated on Depakote and Clonidine, intended to treat ADHD and bipolar disorder. Her parents, Carolyn and Michael, are on trial for Rebecca's murder (Read about the trial here). According to prosecutors, Carolyn and Michael routinely lied to doctors in an effort to get all their children prescribed strong drugs, eventually finding a Boston psychiatrist willing to believe them and hand out ever-stronger doses. Prosecutors claim that the Rileys cared only about making their children easy to manage, regardless of any adverse health consequences, and collecting federal disability benefits. Eventually, after being given extremely high dosages of these powerful drugs, even by adult patient standards, Rebecca died in her parents' home.
When a tragedy like this strikes, it is quite natural for ordinary people to want to assign blame. Someone must have been responsible and that person should be held accountable. Why is there such a palpable need to assign blame? It stems from several reinforcing psychological phenomena.
The human need for answers and accountability
The first is a natural aversion to reminders of one's own mortality. We don't like to feel vulnerable. Therefore, when bad things -- deadly things -- happen to others, our brains automatically generate reasons why such threats aren't dangerous to us. A standard response is to generate distinctions between the victim's circumstances and our own. Some distinctions are circumstantial, while others are directed at choices made by the victim or some other responsible party.
A second psychological response to such a tragedy is to shrink back from the randomness of a bad event. We don't like to think that we are not in control of our own lives. We like to think that our own actions and choices will insure our own well-being. Therefore, people tend to overestimate the control that someone else could have exercised over a difficult situation. This is because any bystander would like to believe that, had she been in the same situation, she would have been able to stop the tragedy from occurring.
Finally, as I have written about on a number of occasions, hindsight bias is always at play when rare events take place. Ordinary people have a great deal of trouble processing the true chance of very unlikely events. The numbers just get too small for the brain to easily process. (What does a 1-in-500,000 chance really look like?). Also, the cognitive availability of an event (after all, the event is the focus of the trial) makes it seem more likely to have occurred. This tendency to overestimate the likelihood of an event also results in people overestimating the events predictability and preventability. An odd second-order effect is that the more peculiar the circumstances, the more likely people are to assume that a tragedy could have been averted.
Jurors are not experts in risk assessment. They typically don't have degrees in statistics or bioinformatics. They are ordinary folks, tasked with processing some very foreign circumstances. As such, they will be subject to the kinds of cognitive tendencies outlined above. The Rebecca Riley death is a very strange story. The loss of a young child is every parent's worst nightmare. The world of pediatric psychiatry seems very alien to all of the jurors. All of these factors will combine to make the jurors very eager to find someone to blame for this horrible tragedy. Once they assign blame, they can go back to believing that such a thing could never happen to them.
What should the defense team do?
This is the environment in which Carolyn and Michael Riley are being tried. One defense strategy might be to portray this death to the jury as an unfortunate accident. For the reasons I outline above, I think this will be an extremely tough sell. A better strategy would be to try to deflect blame onto others. Let the jurors have their culprit, but try to convince at least some of them that the culprit is someone other than the defendant.
The defense team took a sensible first step in this direction by requesting separate trials for the two parents. This allows each to deflect responsibility to the other. The key for Carolyn's legal team is to get at least some on the jury to assign more responsibility to her husband than to her. Frankly, based on what we have heard so far, such a tactic would seem more promising for Michael's defense than for Carolyn's.
The second likely candidate for deflected blame is the psychiatrist who prescribed the medication. Dr. Kayoko Kufuji has now testified in Carolyn's trial. While she came across as detached and somewhat clueless, which points to her own negligence, the prosecution did a very good job of showing how Dr. Kufuji relied very heavily on Carolyn Riley's own characterizations of her children, when making her diagnoses. As such, Kufuji's failures seem largely the result of Carolyn Riley's dishonesty and manipulation.
The third candidate for deflected blame, and the one I think is most likely to garner some sympathy with jurors, is Carolyn Riley's own mental state. The prosecutor is trying to paint a picture of a calculating, manipulative mother who happily endangered her children to keep them docile and to collect federal disability checks. The defense might just gain some traction by telling the jury that she was mentally unbalanced. There are official conditions, like Munchausen-by-proxy, where parents imagine or invent illnesses in their children to fulfill a pathological need for attention. Alternatively, the defense could attribute her extreme behavior to the abusive treatment by her husband. Michael Riley has been banned from a prior residence due to violent behavior and Carolyn Riley once took out a restraining order against her husband, ostensibly to protect her children. Under such a scenario, the defense can contend that the system let Carolyn down, enabling behavior that was not only self-destructive, but also endangered the Riley children.
Will it work?
Jurors are generally skeptical of victimization arguments like the one I outline above, but it seems the best strategy in a case like this. There is a documented history of spousal abuse. Many authority figures who interacted with Carolyn and her children failed to take official action. Remember that only one juror needs to be convinced that Carolyn Riley wasn't completely responsible for her own actions to avoid a murder conviction.
The defense strategy needs to be focused on getting Carolyn's sanity into the discussion in the jury room. They need to open the door for those who might be inclined to take pity on her. I rather doubt that the jury will initially be unanimous in its evaluation of her culpability. Arguments will be heated. Tears will be shed. Playing up the defendant's mental instability might not keep her out of jail, but I could see a conviction on a lesser included offense, such as involuntary manslaughter. Given what has transpired in court so far, that would probably be considered a victory for the defense.
Thursday, January 07, 2010
Murder Trial to test public attitudes towards mental illness
Preschooler diagnosed with ADHD dies from overmedication: Parents on Trial for Murder
Rebecca Riley was diagnosed with ADHD and a bi-polar disorder before her third birthday. Her treatment was supervised by a respected pediatric psychologist, who prescribed two powerful medications, normally reserved for adults. While not approved for such use by the FDA, such "off label" uses are at the professional discretion of the treating physician, and are not uncommon.
Just over a year later, Rebecca Riley died.
The Massachusetts Medical Examiner concluded that her death was caused by an overdose of her medicine. Her parents, Michael and Carolyn Riley, on trial for her murder, claim that she died from pneumonia contracted shortly before her death. A grand jury refused to indict the girl's physician, concluding that the prescribed dosage was not to blame. Rather, the grand jury indicted the parents for murder on the theory that they intentionally overmedicated their daughter to make her easier to manage.
Read about the trial here.
There is some incriminating evidence that the Rileys will have to counter during their trial. School officials, including the school nurse, reported that the girl was often listless and non-responsive in school, sometimes requiring assistance just to get on or off the school bus. In addition, according to the girl's doctor, Mrs. Riley often requested additional refills of her daughter's medicine, claiming that she had lost or damaged bottles of pills. Finally, the Rileys' other two children have also been diagnosed with similar conditions and are being treated in a similarly aggressive way.
Are all these children really mentally ill?
Without a "smoking gun," per se, the outcome of this case will depend, to a great deal, on public perceptions of pediatric mental illness in the modern era. There are clearly countervailing trends and it remains to be seen how they will balance out.
On the one hand, psychiatry (with a big assist from neuroscience) has come a long way in identifying the physiological and neurological causes (or at least traces) of many previously undiagnosed (or misdiagnosed) conditions. We no longer throw women into insane asylums for "bad humors" or "hysteria." Most members of the public believe that depression actually exists and has a neurological foundation. People now appreciate the hereditary influences on alcoholism and other forms of "abhorrent" behavior. Americans generally recognize that soldiers and witnesses to war really do express post traumatic stress disorders. Mental illness is no longer a taboo subject the way it was even 50 years ago.
On the other hand, the public is clearly skeptical of the increasing propensity of mental health professionals to assign a syndrome name to virtually every form of unusual or undesirable behavior. Most current adults were raised during a time when behavioral problems among students were handled behaviorally, rather than psychologically. Children were expected -- required -- to behave themselves in school and at home. There were certainly allowances made for kids who were fidgety or had difficulty paying attention, but children were generally held accountable for their own actions. The primary objection to the current climate of diagnosing every other kid with some kind of disorder or syndrome is that we are raising a generation of people who won't know how to be responsible for their own decisions and actions. By making excuses for our kids, we are raising a nation of excuse-makers.
Modern pediatric psychiatry and parenting on trial
With these countervailing trends in play, how will jurors in this case perceive of the actions of Rebecca Riley's parents? Some may be inclined to defer to the girl's psychiatrist, excusing the parents for doing the same. They gave her these drugs because their doctor said it was OK. The doctor must have seen Rebecca on a regular basis. If she didn't seem concerned, then the parents had no way of knowing that Rebecca was in any kind of danger.
Other jurors will be skeptical of the parents' motives. A parent can get some doctor to diagnose a kid with some kind of disorder if they push hard enough. These folks obviously wanted to medicate their daughter to make their own lives easier. Why didn't they focus on trying to be better parents?
The wild card in this debate might just be the Rileys' handling of their other children. Jurors are notoriously bad at understanding and processing arguments based on probabilities. Unfortunately for the lawyers in this case, conveying the implications of the diagnoses of Rebecca's siblings requires the jurors to wrestle with such issues.
Consider the numbers: It is estimated that roughly 1 out of every 9 American children has some level of diagnosable ADHD. That is about 11%. One might then conclude that the chance of all three Riley children having ADHD is 0.11 cubed, or 0.0013 -- roughly one in a thousand. (Apparently only about 1/3 of children with ADHD receives the treatment she requires. As such, public perception would be that only about 4% of children have ADHD.) By such logic, it is extremely unlikely that the Riley kids got similarly diagnosed purely by chance. With such astronomical odds against it, the parents must really have been pushing doctors to diagnose ADHD.
Such logic is spurious, however, because it assumes that the incidence of ADHD among siblings are independent events. In truth, due to the shared genetics and physiology of siblings, having a brother or sister with ADHD substantially increases the chance of a child having the disorder.
This leaves the jurors in a tricky bind. Everything turns on the reliability of the doctor's diagnostic techniques. If her diagnoses of Rebecca's siblings were correct, her diagnosis of Rebecca almost certainly was, too. On the other hand, if her methods were suspect, the likelihood that she properly diagnosed Rebecca's condition, in particular, drops dramatically.
How to explain this to jurors
I have written in other blog entries about the "perils of probability." I also regularly discuss this issue with attorneys to whom I give presentations. It is very difficult to teach enough probability theory to jurors that they actually "get it." Don't expect them to be able to replicate the math. On the other hand, it is possible to provide them with enough insight to appreciate the nature of the results. My advice: Use visual aids to convey comparisons between probabilities. Analogize to decisions-under-risk with which jurors might be familiar. Make sure that your expert witnesses are excellent teachers. Jurors perceive as more reliable those witnesses who are seen as "helpful."
Regardless of the exact presentation strategies a litigator employs, she would always be wise to test its efficacy in advance. You might think your expert's explanation is crystal clear, but you can't be sure until you present it to a group of ordinary people and find out what they think. If your case turns on the "perils of probability," as the Riley case seems to, some sort of pretrial jury study (focus group research) is absolutely essential.
Rebecca Riley was diagnosed with ADHD and a bi-polar disorder before her third birthday. Her treatment was supervised by a respected pediatric psychologist, who prescribed two powerful medications, normally reserved for adults. While not approved for such use by the FDA, such "off label" uses are at the professional discretion of the treating physician, and are not uncommon.
Just over a year later, Rebecca Riley died.
The Massachusetts Medical Examiner concluded that her death was caused by an overdose of her medicine. Her parents, Michael and Carolyn Riley, on trial for her murder, claim that she died from pneumonia contracted shortly before her death. A grand jury refused to indict the girl's physician, concluding that the prescribed dosage was not to blame. Rather, the grand jury indicted the parents for murder on the theory that they intentionally overmedicated their daughter to make her easier to manage.
Read about the trial here.
There is some incriminating evidence that the Rileys will have to counter during their trial. School officials, including the school nurse, reported that the girl was often listless and non-responsive in school, sometimes requiring assistance just to get on or off the school bus. In addition, according to the girl's doctor, Mrs. Riley often requested additional refills of her daughter's medicine, claiming that she had lost or damaged bottles of pills. Finally, the Rileys' other two children have also been diagnosed with similar conditions and are being treated in a similarly aggressive way.
Are all these children really mentally ill?
Without a "smoking gun," per se, the outcome of this case will depend, to a great deal, on public perceptions of pediatric mental illness in the modern era. There are clearly countervailing trends and it remains to be seen how they will balance out.
On the one hand, psychiatry (with a big assist from neuroscience) has come a long way in identifying the physiological and neurological causes (or at least traces) of many previously undiagnosed (or misdiagnosed) conditions. We no longer throw women into insane asylums for "bad humors" or "hysteria." Most members of the public believe that depression actually exists and has a neurological foundation. People now appreciate the hereditary influences on alcoholism and other forms of "abhorrent" behavior. Americans generally recognize that soldiers and witnesses to war really do express post traumatic stress disorders. Mental illness is no longer a taboo subject the way it was even 50 years ago.
On the other hand, the public is clearly skeptical of the increasing propensity of mental health professionals to assign a syndrome name to virtually every form of unusual or undesirable behavior. Most current adults were raised during a time when behavioral problems among students were handled behaviorally, rather than psychologically. Children were expected -- required -- to behave themselves in school and at home. There were certainly allowances made for kids who were fidgety or had difficulty paying attention, but children were generally held accountable for their own actions. The primary objection to the current climate of diagnosing every other kid with some kind of disorder or syndrome is that we are raising a generation of people who won't know how to be responsible for their own decisions and actions. By making excuses for our kids, we are raising a nation of excuse-makers.
Modern pediatric psychiatry and parenting on trial
With these countervailing trends in play, how will jurors in this case perceive of the actions of Rebecca Riley's parents? Some may be inclined to defer to the girl's psychiatrist, excusing the parents for doing the same. They gave her these drugs because their doctor said it was OK. The doctor must have seen Rebecca on a regular basis. If she didn't seem concerned, then the parents had no way of knowing that Rebecca was in any kind of danger.
Other jurors will be skeptical of the parents' motives. A parent can get some doctor to diagnose a kid with some kind of disorder if they push hard enough. These folks obviously wanted to medicate their daughter to make their own lives easier. Why didn't they focus on trying to be better parents?
The wild card in this debate might just be the Rileys' handling of their other children. Jurors are notoriously bad at understanding and processing arguments based on probabilities. Unfortunately for the lawyers in this case, conveying the implications of the diagnoses of Rebecca's siblings requires the jurors to wrestle with such issues.
Consider the numbers: It is estimated that roughly 1 out of every 9 American children has some level of diagnosable ADHD. That is about 11%. One might then conclude that the chance of all three Riley children having ADHD is 0.11 cubed, or 0.0013 -- roughly one in a thousand. (Apparently only about 1/3 of children with ADHD receives the treatment she requires. As such, public perception would be that only about 4% of children have ADHD.) By such logic, it is extremely unlikely that the Riley kids got similarly diagnosed purely by chance. With such astronomical odds against it, the parents must really have been pushing doctors to diagnose ADHD.
Such logic is spurious, however, because it assumes that the incidence of ADHD among siblings are independent events. In truth, due to the shared genetics and physiology of siblings, having a brother or sister with ADHD substantially increases the chance of a child having the disorder.
When one child in a family has ADHD, a sibling will also have the disorder 20% to 25% of the time, says geneticist Susan Smalley, PhD, co-director of the Center for Neurobehavioral Genetics at the David Geffen School of Medicine at UCLA (www.adhd.ucla.edu). About 15% to 40% of children with ADHD will have at least one parent with the same condition.By this logic, the fact that both of Rebecca's siblings have been diagnosed with ADHD makes it substantially more likely that Rebecca was correctly diagnosed with ADHD. If having one sibling with ADHD would increase the likelihood of Rebecca having it by almost three times, having two afflicted siblings would likely increase the chances five-fold.
This leaves the jurors in a tricky bind. Everything turns on the reliability of the doctor's diagnostic techniques. If her diagnoses of Rebecca's siblings were correct, her diagnosis of Rebecca almost certainly was, too. On the other hand, if her methods were suspect, the likelihood that she properly diagnosed Rebecca's condition, in particular, drops dramatically.
How to explain this to jurors
I have written in other blog entries about the "perils of probability." I also regularly discuss this issue with attorneys to whom I give presentations. It is very difficult to teach enough probability theory to jurors that they actually "get it." Don't expect them to be able to replicate the math. On the other hand, it is possible to provide them with enough insight to appreciate the nature of the results. My advice: Use visual aids to convey comparisons between probabilities. Analogize to decisions-under-risk with which jurors might be familiar. Make sure that your expert witnesses are excellent teachers. Jurors perceive as more reliable those witnesses who are seen as "helpful."
Regardless of the exact presentation strategies a litigator employs, she would always be wise to test its efficacy in advance. You might think your expert's explanation is crystal clear, but you can't be sure until you present it to a group of ordinary people and find out what they think. If your case turns on the "perils of probability," as the Riley case seems to, some sort of pretrial jury study (focus group research) is absolutely essential.
Subscribe to:
Comments (Atom)