The media called Dan Randall Leach, II, the Passion

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1 THETEXAS PROSECUTOR The Official Journal of the The Official Journal of the Texas District & County Attorneys Association Volume 34, Number 6 November/December 2004 It shall be the primary duty of all prosecuting attorneys not to convict, but to see that justice is done. Art Texas Code of Criminal Procedure Prosecuting the Passion Confession Killer The surprising back story on the murder trial of Dan Leach, II The media called Dan Randall Leach, II, the Passion Confession Killer, but my co-counsel in the trial, First Assistant District Attorney Fred Felcman, and I called him the defendant. Days after his arrest, I began receiving calls from numerous local and national print, television, and radio news outlets, inquiring about the case. This interest stemmed from information released by the sheriff s department regarding the influence of The Passion of the Christ movie as one motivation for the defendant s confession. Leach s actions indicated to me that he was thriving on the immense media attention. Several days after his arrest, the defendant gave a sevenminute news conference at the jail, wherein he was interviewed by a Houston radio reporter and a local Fort Bend newspaper reporter. The background In January, 2004, 19-year-old Ashley Nicole Wilson, a college student who lived in Fort Bend County, found herself Also in this issue: Testing defendants for malingering mental illness at trial...page 17 By Greg Gilleland Assistant District Attorney in Fort Bend County Dan Leach, II, cries during his trial s punishment phase. Photo courtesy of the Houston Chronicle. Is that local poker tournament legal? Find out for sure on page 41. five to six weeks pregnant, as verified by her physician who performed a blood test and sonogram. One of two putative fathers, the defendant was aware of the other man but considered himself the father of the child. Ashley s mother found her body January 19, After an investigation, the Fort Bend County Sheriff s Department and the Harris County medical examiner declared her death a suicide, with strangulation by hanging listed as the manner of death. The suicide determination was ostensibly aided by a note found at the scene detailing the victim s various concerns, as well as by the fact that the victim was undergoing psychiatric counseling and was on prescribed medications to treat mood disorders, emotional immaturity, attention deficit disorder, seizures, and depression. (Ashley had sustained severe brain injuries four years earlier in a car surfing accident. Two subsequent brain surgeries resulted in the disorders.) On March 7th, the defendant stood in his church and Continued on page 12 Monitoring inmates jail phone calls can pay off bigtime...page 58

2 TDCAA Book Order Form Code ND PR Order by Fax: 512/ Phone: 512/ Web: Name Office Shipping address (no P.O. boxes) City ZIP Phone Purchase order # (state offices only) Visa or Mastercard # Expiration date CRIMINAL CODE BOOKS Qty Price Total NEW! Annotated Transportation Code Crimes ( ) Annotated Criminal Laws of Texas (bound) copies ea. 25 or more copies ea. Code of Criminal Procedure (spiral) Penal Code (spiral) Texas Crimes Quick Laws 2003 (laminated chart) 5.00 MANUALS Qty Price Total NEW! Confessions (2004) NEW! Extradition (2004) NEW! Traffic Stops (2004) NEW! Sex Offender Registration (2004) NEW! The Perfect Plea (2004 update) NEW! Future Danger (2004 update) NEW! Prosecutor Trial Notebook (24 laminated sheets) (2004 update) NEW! Investigating & Prosecuting Child Sexual Abuse (2004) DWI Investigation & Prosecution (2003) Warrantless Search & Seizure (2002) Charging Manual ( ) Binder only or disk only (circle one) Both binder and disk Guide to Asset Seizure & Forfeiture (2003) Capital Writs (2002) Predicate Questions Manual (2002) SOLD OUT; new edition January 2005 Texas Prosecutorial Ethics (2001) State s Appellate Manual, 2nd ed. (2001) Texas Gangs: The Legal Handbook (2000) REDUCED PRICE! Warrants Manual for Arrest, Search & Seizure (2000) Investigator s Desk Reference Manual (2003) PROSECUTOR OFFICE SUPPLIES Qty Price Total Guide to Report Writing (2001) 5.00 Grand Jury Handbook (2003 update) 3.50 File folders (with printed outline for case notes; 100 per box, 300 per case) manilla: letter or legal (circle one) blue or green: legal only (circle one) Victim brochures (generic or personalized) per box (legal) per box (letter) per box call for prices Directory of Texas Prosecutors & Staff ( ) Shipping 1 item: $8 4 5 items: $ items: call for cost 2 3 items: $ items: $20 Tax (include shipping; 8.25%; write exempt if tax-exempt) TOTAL

3 TEXAS DISTRICT & COUNTY ATTORNEYS ASSOCIATION 1210 Nueces St., Austin, TX / fax: 512/ OFFICERS President: Bruce Isaacks, Denton Chairman of the Board: Jaime Esparza, El Paso President-Elect: Yolanda De Leon, Brownsville Secretary/Treasurer: Tim Cole, Montague DIRECTORS Ken Sparks, Columbus Galen Ray Sumrow, Rockwall Bill Turner, Bryan Kathy Braddock, Houston William P. Smith, Silverton Michael L. Fostel, Kermit Mark Edwards, Sweetwater Jose Homero Ramirez, Laredo Steve Reis, Bay City Bob Gage, Fairfield Jana A. Jones, Decatur John Bradley, Georgetown Investigator Section Chairperson: Melissa Hightower, Georgetown Key Personnel Section Chairperson: Karen Nelson, Seguin BOARD REPRESENTATIVES G. Dwayne Pruitt Henry Garza Rene A. Guerra Barry Macha C. Scott Brumley Casey Garrett STAFF Robert Kepple, Executive Director Diane Burch Beckham, Senior Staff Counsel Lindsey Roberts,Training Director Shannon Edmonds, Staff Attorney Ben Whittenburg, Executive Sales Manager Markus Kypreos, Research Attorney Marnie Parker, Financial Officer Judy Bellsnyder, Meeting Planner John Brown, Director of Operations Sarah Wolf, Communications Director Gail Ferguson, Administrative Assistant Lara Brumen, Database Manager & Meeting Planning Assistant Shelly Bundy, Meeting Planner W. Clay Abbott, DWI Resource Prosecutor Kevin Landtroop, Law Clerk John McMillin, Intern Published bimonthly by TDCAA through legislative appropriation to the Texas Court of Criminal Appeals. Subscriptions are free to Texas prosecutors, investigators, prosecutor office personnel, and other TDCAA members. Articles not otherwise copyrighted may be reprinted with attribution as follows: Reprinted from The TEXAS PROSECUTOR with permission of the Texas District & County Attorneys Association. The editor encourages readers to share varying viewpoints on current topics of interest to TDCAA members. The views expressed are solely those of the authors. We retain the right to edit material. Sarah Wolf, Editor/Photographer Diane Beckham, Senior Staff Counsel Copyright 2004, all rights reserved. TABLE OF CONTENTS 4 President s Report Why we specialize in felony intoxication prosecutions By Bruce Isaacks, Criminal District Attorney in Denton 5 Newsworthy 6 Executive Director s Report In honor of C. Chris Marshall By Rob Kepple, TDCAA Executive Director 8 Annual Criminal & Civil Law Update photos 9 Bill Turner is the State Bar Prosecutor of the Year 10 DWI Corner By W. Clay Abbott, TDCAA DWI Resource Prosecutor 11 Seized vehicle causes stir in South Padre 16 In memoriam 17 Criminal Law: Malingering incompetence to stand trial, insanity, and mental retardation By Steve Rubenzer, Ph.D., clinical and forensic psychologist in Houston 24 Criminal Law: Ending child abuse within 120 years By Victor I. Vieth, director of APRI s National Child Protection Training Center at Winona State University in Winona, Minnesota 27 May a county judge serve on the school board? 30 Upcoming seminar agendas and registration forms 34 Criminal Law: Criminal nonsupport 36 Criminal Law: Fire in the courthouse! By Cindy Franklin, Assistant District Attorney in Bell County 38 As the Judges Saw It By Betty Marshall, Assistant State s Prosecuting Attorney in Austin 40 Prosecutor in Clara Harris trial responds to made-for-tv movie By Mia Magness, Assistant District Attorney in Harris County 41 Criminal Law: A hold on Texas Hold Em? By Markus Kypreos, TDCAA Research Attorney 43 Criminal Law: What s the Mata here? By David C. Newell, Assistant Criminal District Attorney in Fort Bend County 50 Criminal Law: Geographic jurisdiction of officers in Texas By Diane Burch Beckham, TDCAA Senior Staff Counsel 53 Victim Assistance Section Communication with victims goes a long way By Mindy Montford McCracken, Assistant District Attorney in Travis County 55 Key Personnel Seminar photos 56 Victim Assistance Section Texas bikers band together against child abuse By Dan Leal, Executive Director of the Denton County Children s Advocacy Center, and Karen Redd Rich, Bikers Against Child Abuse member 58 Investigator Section Pookie s in trouble By Betty Marshall, Assistant State s Prosecuting Attorney in Austin 60 Sentencing Tips The misdirected sentence By John Bradley, District Attorney in Williamson County 62 Criminal Law: Helpful Crawford predicate questions By Cindy Dyer, Assistant Criminal District Attorney in Dallas County PAGE 3

4 THE TEXAS PROSECUTOR the President s Report By Bruce Isaacks Criminal District Attorney in Denton Why we specialize in felony intoxication prosecutions Since 2000, when my office first started its DWI Prosecution Unit, we have learned that the most efficient and productive way to prosecute felony DWIs is to team an attorney with an investigator so the pair can develop proficiencies in felony intoxication offenses. Our prosecution unit stays abreast of the latest trends in DWI prosecution, including the most current defense strategies and most popular defense expert witnesses, because the attorney and investigator spend their time investigating, preparing, and prosecuting felony intoxication offenses or educating peace officers and prosecutors about such offenses. Our unit handles mostly felony DWI cases but is also responsible for intoxication assault and intoxication manslaughter offenses. In any felony intoxication case, our prosecutor can prepare faster and better because of his constant work in that area. Our felony intoxication prosecutor, Jimmy Angelino, has become one of the top experts in the state. When Jimmy was called to active duty from the U.S. Army Reserve, Bill Schultz stepped in and developed expertise as well. We in Denton County are fortunate to have two prosecutors and an investigator, Ron Keaton, specializing in this area. Prosecutors are as tough as the juries. Even though many defendants act as though their DWI offense is not a very serious matter, they soon find that our office takes DWI very seriously, especially when a defendant has advanced to a felony offender. Linda Jeffries, director of victim services for the North Texas area Mothers Against Drunk Driving, has said that word is getting out that you d better not get picked up in Denton County. Ms. Jeffries believes that the DWI prosecution units in Denton and Bexar Counties should serve as models for others to achieve more skillful and efficient prosecution of intoxication offenses, which, we all know, can be tricky. We need expert or specialized prosecutors because of the many technical issues in intoxication offenses, she said. Frequent offenders from larger counties often are stunned by how felony DWIs are tried in Denton County. In one case, the defendant faced his ninth DWI offense, which he had the misfortune of committing in Denton County. Even though he had been convicted of DWI eight times before, he had never served more than a year in jail. But now, he is serving a life sentence, courtesy of a Denton County jury. How our system works The expertise our unit has developed and the confidence that expertise provides affects every stage of felony DWI prosecutions. First, our unit conducts its own intake of felony intoxication cases. Second, we rarely offer or agree to probation during plea discussions. Our offers and agreements usually require penitentiary time, as Denton County juries often demand it. In fact, we currently get penitentiary time in 78 percent of our felony DWI cases, regardless of how the case is disposed. PAGE 4

5 NOVEMBER/DECEMBER 2004 Third, our trials proceed with very few surprises because our prosecutor knows how to cross-examine the particular defense expert and how to counter challenges to field sobriety testing, Intoxilyzer results, extrapolation, and many other issues. In Denton County, we have an advantage in getting our cases into the courtroom because the county criminal courts have felony jurisdiction concurrent with district courts over intoxication offenses. When faced with a full docket in district court, we can move the felony case to a county criminal court. Additionally, the defense bar in Denton County is aware of our prosecution unit and often wisely counsels clients to take a plea agreement. One of the incentives for a defendant to plea is that the average time of incarceration for Denton County offenders is nearly 50 percent of the sentence assessed. This shows another benefit from the prosecution unit statistical research. Sharing our knowledge As with any office that develops expertise in an area, we are eager to share knowledge and training with others. Although members of our DWI Prosecution Unit make presentations to hundreds of people in any given year, perhaps three of our most important audiences are police officers, young misdemeanor prosecutors, and teenagers. We continually update police officers on the best way to investigate DWIs and can prepare them for defensive strategies during cross-examination because we often know how a particular defense attorney approaches it. Our unit can help our young misdemeanor prosecutors learn the ropes of DWI prosecution much better and much faster than before we started our specialized unit. And before prom season, our unit goes into high schools to talk to teens and present a sobering message about drinking and driving. Our presentation goes far beyond the legal consequences in the hope of preventing tragic assault and manslaughter cases. The maintenance of a specialized felony DWI unit also allows us to cultivate strong relationships with other groups, including MADD, DWI prosecutors from other counties, and legislators who consider DWI prosecutions a priority. Although our prosecution unit was started with grant money, today the unit receives all its funding from the county. Our county commissioners made an important statement when they picked up the funding for our unit. Denton County juries have made numerous important statements through their assessment of tough sentences. And our office continues to make an important statement through vigorous prosecution. In the final analysis, this combined effort in Denton County has helped keep the streets and roads safer for our citizens. Newsworthy Attention, hockey fans! The Austin Ice Bats are graciously offering discounted tickets (as part of its Law & Order Night) to all TDCAA members, family, and friends for the Dec. 11 matchup against the San Angelo Saints. Faceoff is at 7:35 p.m., and the game is followed by a free concert. Reserve your seats today by contacting Sara Matthys by phone at 512/ or by at smatthys@icebats.com. Texas Juvenile Law Book now available Texas Juvenile Law (6th edition) by Dr. Robert O. Dawson is a complete reference source for Texas juvenile justice personnel. It is now available for $50 from the Texas Juvenile Probation Commission; an order form is available on our web site at in the Forms, Briefs, Et Al section. Just search for juvenile law book. Continued on page 10 PAGE 5

6 THE TEXAS PROSECUTOR Photo courtesy of NDAA the Executive Director s Report On September 20th I was privileged to attend the dedication of the Prosecutors Memorial at the Earnest F. Hollings National Advocacy Center on the University of South Carolina campus (see the photo, below). The new memorial was commissioned to honor prosecutors who have lost their lives in the line of duty. It was constructed with significant support from the various prosecutor associations around the country, including TDCAA. Among the first seven prosecutors to be memorialized was C. Chris Marshall, a powerful advocate for the State with the Tarrant County Criminal District Attorney s Office who was murdered in court in We still miss Chris we could sure use his brilliant guidance on hearsay in the wake of the Crawford decision! As we went to press, we learned that By Rob Kepple TDCAA Executive Director In honor of fallen prosecutors a second Texas prosecutor will be added to the memorial. Many of you recall the untimely death of Gil Epstein, an assistant district attorney in Fort Bend County. Gil was killed in a robbery after the gunman spotted his badge. The first in his family to achieve a post-graduate degree, Gil had been an ADA for only a year and a half. His family and his coworkers saw the promise of greatness in this young prosecutor, and it is fitting the NDAA has announced that Gil will be honored at the Prosecutors Memorial. Next time you are at the NAC, be sure to pay your respects. Annual Conference in review We had another great Annual Conference. Four years ago the TDCAA Long Range Planning Committee wanted us to really focus on creating tracks of intensive instruction in key areas, and by the reviews you provided, we ve been successful. We added an eighth track this year (TDFPS) and had overwhelmingly positive evaluations on them all. Thanks to the TDCAA Training Committee and our entire staff led by Lindsey Roberts for putting on a great function. Only a couple of rough spots, both involving sitting too much. One was having to sit on buses for the ride to and from the Convention Center. The downside of growing as an association is that the Convention Center is the only place on Padre Island that will accommodate our numbers. But even with that ride, y all have told us loud and clear that you prefer going to Padre over other venues, so we ll have to put up with shuttle buses for the time-being. The second involved a couple of missed (but scheduled) breaks during the Trial Track. Sometimes our speakers just get so into their topic, they forget to adjourn for some leg-stretching, coffee-refilling, and bathroom-visiting. In the future we will enforce those breaks, we promise. And look at it this way: You got some great exercise carrying around that monster of a seminar binder (which we will also slim down next year). From the sublime to the ridiculous We all know that in the last couple years the ACLU has made a lot of hay over the Tulia drug cases. And give the devil his due: Putting aside the issues of accuracy and fairness, it has done a masterful job of trashing that town s name to focus on an issue close to their hearts: drug laws. Lots of meaty issues there. I m wondering if the ACLU will have the same success with its next lofty project: getting flat-screen televisions for death row inmates. No kidding that appears to be a big issue for those folks. You may have read about their efforts, but the scuttlebutt is that regular TVs are too dangerous: Stuff can be hidden inside them and the internal parts can be turned into weapons. But apparently a good plasma screen could minimize the risk to the guards. Good luck with that. PAGE 6

7 Student loan forgiveness stymied in Congress? It is a little hard to figure out what has happened at this point, but word from the National District Attorneys Association is that student loan forgiveness for prosecutors and public defenders is not faring too well. Supporters have tried to attach the measure to some crime legislation moving though Congress, but we are getting the impression that there isn t a lot of enthusiasm for it on Capitol Hill, at least right now. But in the true spirit of prosecutorial creativity, our friends in Oklahoma are advancing a new idea: Make the repayment of the principal on student loans an above-the-line federal income tax deduction (a deduction currently exists for student loan interest). OK, it isn t everything we could hope for, but as Pappy Kepple was fond of saying, it s better than a sharp stick in the eye. We will keep you informed. Passing of a judicial powerhouse By the time you get this Prosecutor, you will likely have learned of the passing of Judge Sam Houston Clinton, a former judge on the Court of Criminal Appeals. Judge Clinton was an intellectual powerhouse and prolific writer. We all respected his consistency and judicial temperament. And we must never forget that he provided us with some of the most memorable moments in appellate writing. Forget the recent butt crack case. In the notorious penis parade case, Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990), our Texas Court of Criminal Appeals discussed at length the admissibility of extraneous offenses; in this case the extraneous bad conduct was the defendant marching around in front of his children with the flag flying, as it were. But the everthoughtful Judge Clinton, carefully thinking through the legal admissibility of the defendant s display, had these insightful remarks: Many in our society would condemn appellant for his conduct whether they believed it showed sexual arousal directed at his children, an undifferentiated sexual arousal imprudently displayed, or simply an incidental erection coupled with a damnable nonchalance. Good on ya, Judge. That s kind of writing that turned our law books into real page-turners! TDCAA leadership report At our Annual Business Meeting held in conjunction with our conference in Padre, some new folks were elected to leadership positions. Those who will take office in January 2005 are: Tim Cole, DA Montague, President Elect; David Williams, CA San Saba, Secretary/Treasurer; Jim Kuboviak, CA Bryan, County Attorney at Large; Doug Lowe, CDA Palestine, Criminal District Attorney at Large; Scott Brumley, CA-Elect Amarillo, Region 1 Director; Jesse Gonzales, CA Pecos, Region 2 Director; Dan Heard, CDA Port Lavaca, Region 4 Director; and Mike Fouts, DA Haskell, Region 7 Director. Congratulations to those folks, and thanks for stepping up. As always, come January the new president will form committees for the next year, so if you have an interest in training, publications, technical assistance, and all the other things we do, just let us know. Miranda in the King s English Apparently, the Miranda warnings mandated by our Supreme Court aren t all that unique. Senior District Judge Larry Gist of Beaumont shared with us the warnings required of the London NOVEMBER/DECEMBER 2004 Metropolitan Police: You do not have to say anything. But it may harm your defense if you do not mention when questioned, something which you later rely on in court. Anything you do say may be given in evidence. Say it in your best lame Sean Connery/007 accent, and it sounds pretty good. Time-honored gambling in Texas? The huge popularity of television poker shows has rekindled interest in all sorts of gambling. In this Prosecutor you will see an article about Texas Hold Em tournaments written by our research attorney Markus Kypreos, which will serve as a polite reminder that this stuff is still illegal in Texas. (See page 41 for the whole scoop.) But we continue to get lots of calls about the subject, and our user forum at recently was the home of a very interesting discussion of another time-honored Texas gambling game, cow patty bingo. Log on and get up to speed on how to properly hold a charitable event of tremendous popularity! DWI training on the horizon You will read a lot more about this soon, but I want to be the first to welcome a new TDCAA staff member, Clay Abbott, formerly of the Lubbock County Criminal District Attorney s Office and most recently with the Texas Municipal Courts Education Center. Clay is here on a three-year grant from TxDOT and the National Highway Traffic Safety Administration. His sole purpose: to bring first-class training to Texas prosecutors and police officers on driving while intoxicated. Watch for some great new training opportunities coming your way from TDCAA in the very near future. PAGE 7

8 THE TEXAS PROSECUTOR Annual Criminal & Civil Law Update photos More than 990 people attended our biggest conference of the year on South Padre Island. Here are a few memories of the week. PAGE 8

9 NOVEMBER/DECEMBER 2004 Bill Turner is the State Bar Prosecutor of the Year Bill Turner is joined by his wife, Jana, and daughters Becky and Katie at the Annual, where he received the Prosecutor of the Year award. Bill Turner, the 85th Judicial District Attorney serving Brazos County, was honored as the 2004 State Bar Prosecutor of the Year at TDCAA s Annual Criminal & Civil Law Update.Turner, who has served as Brazos County s elected district attorney since 1983, is highly esteemed by fellow prosecutors both in his office and across the state for scrupulously abiding by his duty under the law not to convict, but to see that justice is done. Barry Macha, the Criminal District Attorney in Wichita County who won the award last year, nominated Turner and speaks highly of his colleague. Bill deserves this award because he is a proven leader of Texas prosecutors, Macha says. Not only is he one of the finest trial prosecutors Texas has ever seen, but he is also a fearless and ethical advocate for the citizens and victims of his community. Margaret Lalk, who has worked with Turner for more than 20 years, looks to him as a mentor and teacher, both in the courtroom and in life. Working with Bill has been a constant education, she says. Bill never shoots from the hip; he is methodically prepared when he walks into court. He teaches that listening is more important than talking, that compassion and respect are basic to justice, and that you must seek others viewpoints without deviating from your own moral compass. I have never met another prosecutor who has put as much effort and thought into what it takes to be an effective and ethical prosecutor than Bill Turner, says Turner s first assistant DA Shane Phelps. He sets the bar very high and is a wonderful role model for prosecutors across Texas. It is an overwhelming feeling to be honored by people you have so much respect for, Turner says of receiving the award. I have always believed that doing the right thing in each case is what is expected of Texas prosecutors. It s what we do. PAGE 9

10 THE TEXAS PROSECUTOR DWI Corner TDCAA is happy to announce its receipt of a federal grant through the Texas Department of Transportation (TxDOT) grant for local prosecutor and police training and assistance in DWI and intoxication offenses. The grant has three major elements: the creation of a DWI resource prosecutor position at TDCAA; complementary distribution of Richard Alpert s excellent publication, DWI Investigation and Prosecution, to every Texas prosecutor; and prosecutor-police DWI training at the local level. A good number of you may already know me from TDCAA and TMCEC seminars, the Texas Tech School of Law where I served as an adjunct professor for a decade, or the Lubbock County Criminal District Attorney s Office. I am pleased to combine the skills I ve learned both as a prosecutor and as a legal educator in my new position as TDCAA s DWI resource prosecutor. It is my pleasure to return to my By W. Clay Abbott TDCAA DWI Resource Prosecutor Introducing Clay Abbott roots. I have always had a special place in my heart for DWI prosecutions, offenses often mislabeled as victimless. While the events of September 11, 2001, and the conflict in Iraq rank more highly in our political debate, community dialogue, thoughts, and prayers, we prosecutors know that intoxication offenses, if left unchecked, will eventually touch many more victims. The number of lives lost to intoxicated drivers, while declining, still take a greater toll on Americans than terrorism and war combined. According to the National Traffic Safety Administration s Analysis Reporting System (Fars) 2003 Report, 1,709 people died in alcohol-related crashes in Texas in 2003 alone, ranking us first nationally in alcohol related fatalities and seventh in percentage of traffic fatalities that are alcohol-related. Prosecutors are the driving force behind holding these offenders account- able. Not surprisingly, then, we are often blamed for perceived failures in DWI prosecution. Threee common criticisms include abundant plea bargaining, misplaced priorities, and a lack of training. There is simply no choice but to plead the majority of these cases, usually with offers made to move backlog rather than reflect the charges seriousness. Our priorities are attacked because misdemeanors including DWI are delegated to the greenest attorneys on staff. Yet few cases are as complicated as a DWI or intoxicated manslaughter or assault. Not only do constitutional issues abound, but prosecutors often go up against capable, experienced, and well-prepared defense counsel representing otherwise upstanding and socially connected defendants. Seldom does the prosecutor s ability, preparedness, and education have as great a potential impact on the chance of conviction. Yet I remember, as a young misdemeanor prosecutor so many years ago I never had enough places to go with questions. My first day in the office was my first day in court, and I m sure things still operate similarly. With this grant and my new position at TDCAA, we hope to address the third criticism by providing technical assistance and joint police and prosecutor training on intoxication offenses. Each group must be trained in how to best perform its own role, but both will benefit from exposure to the challenges facing the other. An advantage of such side-by-side learning will be greater PAGE 10

11 NOVEMBER/DECEMBER 2004 understanding, dialogue, and coordination between prosecutors and police. In addition, we will put on regional training on whatever intoxicationrelated topics you want. In what areas do you need the most help? Are you willing to host a training and get the word out to your cops? We hope to begin scheduling and conducting oneday seminars all over the state soon. I also look forward to working on the association s excellent existing projects, such as answering legal calls, speaking at the Trial Skills seminars, conducting an intoxicated manslaughter course, writing a regular column in this newsletter, and updating DWI caselaw in The Prosecutors Report. I will also coordinate with education and advocacy groups including TxDOT, TMPA, MADD, DPS, and numerous other TxDOT/NHTSA grantees so I can be your resource for information and assistance, even on topics I don t carry in my head. Finally, look for new and consolidated DWI resources at One unfair criticism of prosecutors is that they don t care about DWI offenses. My observation and experience tells me this is simply not true: Dedication abounds, but resources do not. While I do not claim to have all the answers, I am available by phone (512/ ) or (abbott@ tdcaa.com) to field questions or offer suggestions on DWI issues. Contact me if I can help. Seized vehicle causes stir in South Padre Attendees of our Annual Criminal & Civil Law Update in South Padre chuckled heartily at this Chevrolet Yukon, which was parked in the Convention Center s lot. Mark Yarborough, Lamb County and District Attorney, explained how the county gained ownership of the truck: When trooper Brent Collins pulled Trooper Brent Collins, who initially stopped the vehicle; Lamb County and District Attorney Mark Yarborough; Assistant County & District Attorney Scott Say, and Lamb County Sheriff Gary Maddox pose by the forfeited Yukon, right. Above, the words that get thumbs-up and honks from passing motorists. the vehicle over this year, the driver, 25- year-old Adam Rivera, had a small amount of cocaine, some marijuana, approximately $4,000 in cash, and a 9- mm pistol. We forfeited all of it. The Yukon had about 33,000 miles on it, and the defendant s father had just paid off the note as a graduation gift for his son. The stereo system is topof-the-line. The receiver is actually a hard drive and can record CDs. We deleted most of the 50 or so Rivera had on the hard drive, but we left a few, including the Bad Boys soundtrack. The defendant had more problems than in just Lamb County; he also delivered cocaine in Hale County. When he agreed to be punished in Hale, he also agreed to our forfeiture of the Yukon, cash, and gun. After the case was disposed, we wanted to make a statement to dealers in Lamb County. That s when we thought of the Mastercard-type saying for the back windshield. Every time we drive the vehicle, we get thumbs up, claps, and honking horns from other drivers. At the Annual Update, we tried to park up front as much as possible to show it off. I can t tell you the number of positive comments we received. We also plan on using the Yukon in parades and with our county D.A.R.E. program. PAGE 11

12 THE TEXAS PROSECUTOR Continued from the front cover Prosecuting the Passion Confession Killer (cont d) advised his fellow parishioners that he was going on a journey, that he likely would be gone a long time, and that he had sinned; he asked the congregation to pray for him. A short time later, his parents summoned the minister and the church elders to their home, where Leach informed them that he had strangled a girl whom he had gotten pregnant and staged it to look like a suicide. After urging him to contact an attorney, some of the elders and his parents accompanied him to the sheriff s office, where after he was duly advised of his rights, the defendant exercised his right to counsel, opted not to give a statement, and was allowed to leave. Two days later, the defendant again appeared at the sheriff s office with his parents. After waiving all of his rights in writing and on video, he confessed in great detail in a nearly two-hour video regarding the murder of Ashley Wilson. The defendant said his motive was that he was embarrassed that others would know he had been with the victim, a person he considered inferior to himself. In his video confession, the defendant s affect was flat and matter-of-fact, with absolutely no show of emotion. It was of such a frank and blasé delivery that when played at trial it was universally characterized by the media as chilling. In his non-custodial statement, the defendant said he had been like a robot with a program, cold and calculated, PAGE 12 and that he had sociopathically detached himself from any feelings for the victim as a person to murder her. Prior to strangling her, he had convinced Ashley to pen a note detailing the bad things and the good things in her life, as he knew he would need physical evidence to make her murder look like suicide. Of great interest to me was the In his video confession, the defendant s affect was flat and matter-of-fact, with absolutely no show of emotion. It was of such a frank and blasé delivery that when played at trial it was universally characterized by the media as chilling. defendant s taped admission of thoughts of killing others, including his former Air Force commander, which he had planned in some detail. Of great initial interest to both the media and several Right to Life groups that contacted me was whether the case would be prosecuted as a capital case under the new Texas Penal Code provisions classifying a fetus as an individual. This situation was resolved when the Harris County ME s office found no indication of pregnancy or a fetus during the autopsy. Because the victim s body had been cremated before the defendant s confession, there was no opportunity to conduct further investigation in this regard, and we proceeded with a non-capital murder case. Pre-trial investigation Once the story broke internationally, I received a call from Lt. Col. Dan Whitten of the U.S. Air Force, who had been the defendant s commanding officer. The previous year Lt. Col. Whitten had spearheaded a court martial against the defendant for house burglary, failure to obey the orders of a superior, and the negligent discharge of a firearm, which resulted in Leach s five-month incarceration and his subsequent discharge from the service. Whitten had heard the story of Ashley s murder and offered his and the Air Force s assistance in Leach s prosecution; in his opinion, the defendant was an extremely dangerous individual. Within days, I had a complete transcript and record of the court martial proceedings and a copy of the defendant s investigation file of the Air Force Security Police, including witness statements. Further, the USAF JAG corps and security police at Tyndall AFB in Florida happily performed some followup work. They assisted on tracking witnesses, serving subpoenas, and taking at least three statements from Air Force witnesses regarding other extraneous matters. Through this information I secured the cooperation of the lieutenat colonel to appear and testify and also located Leach s ex-girlfriend, whom the defen-

13 NOVEMBER/DECEMBER 2004 dant had terrorized, and another airman who had overheard the defendant threaten to kill yet another serviceman during his stint in the Air Force. The exgirlfriend could testify that not only had the defendant told her he thought he was capable of killing another, but also that during their relationship Leach was greatly interested in and read books on forensic science, handwriting analysis, and psychiatry, none of which had any relation to his military duties. Of course, these were all subject areas the defendant utilized less than a year later in Ashley s murder and his cover-up of her death. It is important to note that District Attorney John Healey was a daily presence in my office during the first several months of post-indictment research and investigation. He gave me not only his knowledgeable experience but also his strong support and allowed me to investigate and try this case the way I wanted to. The Passion of the Christ After examining all of the evidence and statements by the defendant and witnesses, Mr. Felcman and I independently reached the same conclusion about The Passion of the Christ s power over the defendant s decision to confess: It was of some but not overwhelming influence in forming the defendant s desire to confess to this murder. In his confession, the defendant said that to repent and redeem his eternal soul to God, he had to confess his sin and submit himself to the lawful authorities on earth for punishment. The defendant joined his church at age 4, and along with his family, had been an extremely active member of their local Church of Christ. He often attended services three times a week. In his initial confession and ensuing news conference, the defendant cited his reborn faith, a recent Bible study session with an old family friend, and a particularly moving sermon on March 7, 2004, as the main reasons motivating him to testify. At best, the movie, which he said he saw twice, pricked my heart and became one of several reasons he confessed. Will Mel Gibson attend the trial? Due to widespread pre-trial media interest, Judge Brady Elliott of the 268th District Court retained, at no cost to the county, a media consultant who normally works for the local CBS affiliate and who had coordinated numerous other high-profile Texas trials. Further, Judge Elliott entered a Media Coordination Order, a very wise idea in a publicityintense case of this nature. A media room was set up in a nearby courtroom with an audio feed from our courtroom. Judge Elliott decided not to allow cameras to film testimony but only opening and closing arguments. The reporters conduct was most respectful to our witnesses, the victim s family, and the prosecutors. Unlike the defense attorneys, who gave press conferences during nearly every break in the trial and at the beginning and end of each day, Fred Felcman and I adhered to our usual policy, which is not to make comments to the media until a verdict is rendered. Of course, when all the major networks have a camera crew on scene, during slow moments of the day almost any event will draw media attention, including the attorneys and witnesses arriving at the courthouse each day or going to lunch. Guilty or not guilty? One aspect of drama that I think the defendant felt he controlled was advising his attorneys what his plea would be. In fact, the venire panel was questioned on issues for both phases of the trial, but until the defendant stood and made his unusual guilty plea in the case, neither the court nor the State knew how the defendant would plead. Obviously, this was of great consternation to the victim s family, whom the defendant had told during his news conference that he would plead guilty to murder. Fred and I prepared our case as if we would try guilt/innocence and punishment and had the necessary witnesses present on the first day of trial to proceed in either event. I had two opening statements sitting on counsel table in front of me that morning, one for guilt/innocence and one for punishment. Hedging our bets that he would plead guilty, we had already flown in our military witnesses from Germany and Florida. Continued on page 14 PAGE 13

14 THE TEXAS PROSECUTOR Continued from page 13 The other aspect of drama the defendant felt he controlled was advising the court as to whether he would testify. After the State rested on the second day of testimony, the defense team told the judge that the defendant would advise the court the following day whether he would testify. Although this generated great suspense in the media, I was sure Leach would have to testify to try to soften the scary image created by his confession and news conference, as well as by the State s witnesses. The media witness I had planned to introduce the sevenminute recorded interview given to the media shortly after the defendant s arrest as evidence not only of his guilt but also for his statements praising law enforcement for their fair and extremely courteous treatment during his confession. It was also noteworthy that although the defendant expressed his concerns for his eternal soul as the prime motivator for his confession, not once did he mention concern for the victim s soul. This interview was also important evidence of his extremely blasé demeanor in his delivery of opinions and statements regarding his predicament, and it suggested that he was actually enjoying the interview and the attention. I subpoenaed the radio reporter who had initiated the interview, as well as the young reporter from a local newspaper who accompanied him. I felt that the stronger personality of the radio reporter would make a better presentation of the evidence than the shy, introverted newspaper reporter, but I was PAGE 14 soon contacted by an Austin civil attorney from a well-known firm who represented the radio station and reporter. The station never filed a motion to quash the radio reporter s subpoena, but the reporter s attorney insisted that I schedule his appearance through her. I saw no reason to make a control issue out of this, so I agreed that they could appear at noon instead of at 8:30 a.m. so the attorney could drop her children at daycare before traveling to Houston. On the day the trial began, my secretary and proverbial right hand, Carolyn Childers, had at least one conversation with the attorney, who informed her they were on their way and would appear at the agreed time. Shortly after their no-show at noon, I received a tersely worded dictum via fax advising me that because the defendant had pleaded guilty and the attorney knew there was a newspaper reporter who could testify to the same facts as her client, her client would not appear. Carolyn s attempts to reach the radio station s attorney and dissuade this course of action fell on deaf ears. Ultimately I was able to contact another attorney in Dallas (the Austin attorney s supervisor), who had a little more realistic grasp on what compliance with a criminal subpoena entailed. The Dallas lawyer initially attempted to negotiate, unsuccessfully of course, over what questions I would ask the reporter as well as what questions the defense would ask of him! I urged her to contact the wellknown Houston criminal defense attorney for whom she had once interned to ask him about my reputation as a practitioner and what procedural and criminal laws of the State of Texas were germane to this situation. Finally, I advised her that Judge Brady Elliott had been appraised of the situation and was ready to grant the as-yet-unfiled writ of attachment that I held in my hand. Although I did not mention that the writ, once filed, would be public record for the numerous television and newspaper reporters in attendance and thus fodder for the evening news, I suspect she was able to grasp this on her own. Shortly thereafter, the Dallas attorney called me back and advised that their fully cooperative witness would appear momentarily with yet another attorney, this one from their firm s Houston office, who would facilitate full compliance with the subpoena s legal requirements. The importance of our victim-witness coordinator The other member of our team in this case was Wanda Greenwald, veteran victim witness coordinator of our office. She, along with Carolyn Childers, worked with the victims and witnesses and facilitated contact between them and myself. In addition to scheduling their appearance and answering myriad questions attendant to cases like this, their calm, friendly, and easygoing demeanors kept the witnesses in good spirits despite their understandable nervousness. Truly, co-workers like Wanda and Carolyn are the third and fourth chairs that insure success in the courtroom.

15 NOVEMBER/DECEMBER 2004 The defendant s character witnesses I would hesitate to characterize the defendant s fellow church members as zealots, yet one could accurately say that they were steadfast in their support and unflagging positive opinion of him. It made our job much easier when one fellow church member testified as to the defendant s innate goodness and refused to believe that the defendant actually murdered Ashley, despite the detailed and highly corroborated confession. Likewise, our job was made easier by several church members who said that they had no problem with the defendant associating with their children, unsupervised at any time, despite his deeds. Nearly every eyebrow on the jury rose when the defendant s minister said that Leach merely stumbled on the path to God in choking the very life from Ashley. Images It was important to me in this case, as in any murder case, to personalize the victim as much as possible while avoiding a comparison of the characters of defendant and victim. Ashley was a vulnerable young lady, not only in an emotional sense but also in the way of a pregnant teenager who wanted to marry the defendant. I called her long-time psychiatrist who had seen her mere days before her death. He testified that she was not suicidal, had never been suicidal, and was basically a good kid. Dr. Ferdinand Plavidal, Ashley s obstetrician, who saw her less than 10 days before her death, was her longtime physician and in fact had delivered Ashley. He is chief of staff in his specialty for more than 20 years at one of Houston s finest hospitals, and his compassionate demeanor told the jury that he had accurately performed the sonogram, seen the fetus, and heard the fetal heartbeat. He presented an ultrasound Assistant DA Greg Gilleland shows the jury a photo of the victim, Ashley Wilson. Photo courtesy of the Houston Chronicle. picture of the fetus and testified that these observations were consistent with Ashley s pregnancy blood test hormone levels. He did not think the pregnancy had been terminated by abortion or miscarriage but declined to speculate why the medical examiner found no evidence of pregnancy. As a pre-emptive strike against anticipated defensive theories, I felt both of these areas of evidence important in establishing that the victim had not been scamming the defendant about a pregnancy and that she did not take her own life or request the defendant to help her do so. My hunch was right: The defense questioned medical witnesses regarding these possibilities, as well as others, such as auto-erotic strangulation. I also wanted the jury to have a clear image of the dangerousness of this defendant beyond his bizarre behavior during the confession or radio interview. Based on the evidence, there were several mental images of Leach I wanted the jury to contemplate. One was of him, as he stated in his confession, with his body and legs wrapped around Ashley to prevent any struggle on her part, as he held the ligature tight against her neck for 10 minutes after he felt her lungs stop moving, just to make sure she was really dead. Another image of the defendant s dark and bizarre personality was painted by his ex-girlfriend s testimony. Leach, clad only in his underwear, head newly shaved, stood in the darkness at midnight on Easter Sunday over her bed in her on-post housing. Her two young daughters were in the next room, and he eerily clicked the light on a fish tank off and on after he had been given numerous verbal and written orders by his military superiors to avoid contact with the ex-girlfriend and her family. A third image was of the defendant sitting in his car in the dark, trying to relax, while parked in front of his exgirlfriend s home. There he was, methodically loading and unloading a 45-caliber pistol as he contemplated the events of his life after a lengthy discus- Continued on page 16 PAGE 15

16 THE TEXAS PROSECUTOR In memoriam Anna Maria Quinones The Polk County Criminal District Attorney s Office in Livingston is sad to announce the death of their friend and coworker, Anna Quinones, the office s crime victim advocate. Anna and her 19-year-old daughter, Dana, were killed in a automobile accident June 5 while returning home from a minivacation in Arkansas. Kaycee Jones, assistant DA, says, Anna was devoted to helping victims of crime. Despite the long hours and sad stories she had to hear, she never complained. In fact, she would call law enforcement if she heard about a crime after it happened and fuss that they had not called her at 3 in the morning to comfort the victim. She did not mind having to give up anything to help a victim. Our office has lost a truly great victim s advocate and a wonderful friend. Shannon Ross Shannon Ross died suddenly at her home in Rowlett Sept. 11. She was the criminal chief of the U.S.Attorney s Office for the Northern District of Texas and also worked for 10 years as a Dallas County assistant DA, where she focused on drug and organized crime prosecutions. A one-time winner of TDCAA s C. Chris Marshall Distinguished Faculty Award, Ross was greatly respected and beloved by those with whom she worked. Judge Sam Houston Clinton Sam Houston Clinton passed away Oct. 5. A former judge on the Court of Criminal Appeals, he served three consecutive sixyear terms as a Democrat. Clinton was a constitutional scholar and avid historian and acted as general counsel to the Texas AFL/CIO and the Texas Civil Liberties Union and was a member of numerous committes serving the State Bar of Texas. PAGE 16 Continued from page 15 sion with the ex-girlfriend about their relationship and its problems. The gun accidentally discharged in the car shortly thereafter. The arguments The defense s posture was that Leach should somehow be rewarded for his confession to this crime because absent his confession, the case would have remained classified as a suicide. Our conviction was that the defendant was a dangerous killer with an admitted ability to depersonalize himself and go into a robot-like mode, able to kill without compunction. Fortunately, the jury agreed with us and sentenced the defendant to 75 years and a $10,000 fine. I especially enjoyed the final portion of Fred s argument, where he sat on the edge of the State s table and in a subdued manner explained to the jury that it was most important for us as a society to know where this defendant is at all times. He continued, saying that by incarcerating Leach for life, we would be providing for all of his wants and needs: food, shelter, clothing, and medical care, and that in return we would not have to worry about the defendant killing again. Of course, our greatest satisfaction from Sex Offender Registration by Suzy Morton and Traffic Stops by Diane Burch Beckham are now for sale from TDCAA. Both are shorter and less expensive than many of our other publications. (See page 50 for a Traffic Stops excerpt.). this case was the relief to Ashley s parents, Renee Coulter and Dan Wilson, and to their family and friends, in seeking justice for Ashley. They were pleased with the jury s punishment verdict, and Renee felt vindicated she had been a strong voice contesting the original suicide determination. There is no equal to the heartfelt thanks of Ashley s family. The personal aspect A week before the start of trial, my father passed away. A former Harris County prosecutor and longtime noted Houston criminal defense attorney, he would have wanted me to go ahead with the trial. He had followed the case from its inception, and as late as two days before he died, he was offering astute advice on strategy and evidence. He, like I, felt that the defendant was an extremely dangerous man who needed a lengthy sentence to protect the public. Fred Felcman and John Healey were invaluable to me after that: Fred picked up the slack in voir dire, cross-examination, and the pretrial motion to suppress, and John allowed me to go ahead with as much or as little of the trial as I wanted to under the circumstances. Many thanks for their help and support. New titles from TDCAA now available An updated Prosecutor Trial Notebook by Diane Beckham and Matthew Paul is also available. To order these books or any others, visit or fill out the order form on page 2 of this newsletter and fax it to 512/

17 NOVEMBER/DECEMBER 2004 CRIMINAL LAW By Steve Rubenzer, Ph.D. Clinical and forensic psychologist in Houston Malingering incompetence to stand trial, insanity, and mental retardation Many defendants try to fake mental illness before or at trial. Here is how forensic psychologists determine their malingering. Defendants who successfully feign mental impairment take advantage of society s compassion for the mentally ill and create skepticism towards those who are truly incompetent or insane. They create substantial additional costs for the court system for transportation, psychiatric care, and attorneys and court fees. Witnesses may become unavailable and the chances for a successful feigned insanity defense or other favorable outcome may improve after confinement in a mental hospital. But malingering may constitute obstruction of justice and has been upheld as a basis for a sentencing enhancement by the Fifth Circuit. 1 Lastly, malingerers may create management problems for psychiatric staff at treatment facilities. They may be career criminals who, when placed in a supportive but dull psychiatric environment, disrupt the ward routine and take advantage of legitimate psychiatric patients. Good public policy demands that they not be allowed to disrupt justice administration and impose the aforementioned costs on society when competent assessment at the pretrial stage can prevent it. This article will review the issues pertaining to malingering, discuss the best validated and useful tests and techniques available, and examine the three contexts where prosecutors may face psychiatric malingering: competency to stand trial, sanity at the time of the offense, and mental retardation in the context of a death penalty case. Who malinger? Surveys of psychiatrists and psychologists in forensic settings report that malingering (faking or exaggeration to avoid negative consequences) occurs in percent of persons who present as significantly impaired. 2 This is almost certainly an underestimation because successful malingers would not be counted, and there is little evidence that clinicians unaided by specialized tests can reliably distinguish malingerers from persons actually suffering from a mental disease or defect. One recent study found that psychiatrists working in a state forensic facility, relying on interviews and file data, failed to identify 50 percent of malingerers detected through specialized testing. 3 The misidentification rate among clinicians in non-forensic settings who provide treatment (as opposed to assessment) is likely to be much higher. The American Psychiatric Association s Diagnostic and Statistical Manual clearly states, Malingering should be ruled out in those situations in which financial remuneration, benefit eligibility, and forensic determinations play a role. 4 However, clinicians may not know that the patient has such motivations, often do not suspect the possibility of malingering and typically lack the training or tools to assess for malingering even if they suspect it. Not surprisingly, they rarely find it. In contrast, forensic psychologists consider malingering assessment a crucial element of their craft and routinely test for it. Because this potentially places the Continued on page 18 PAGE 17

18 THE TEXAS PROSECUTOR Continued from page 17 examiner in opposition to the examinee s interests, evaluation in forensic settings is viewed as a professional specialty incompatible with providing treatment. 5 Other differences between forensic evaluators and the treating clinicians are summarized in Table 1, below. 6 Assessment There are several types of malingering. Less sophisticated persons may present as globally impaired, with both severe cognitive deficits and psychiatric symptoms. More sophisticated feigners may be more specific. For example, they may TABLE 1 Therapists Forensic examiners Who is the client? patient attorney or the court Goals Data Emphasis Trust Accountability Privilege Knowledge of legal issues Attitude provide treatment and support accept what the client says treatment, helping assume basic honesty anticipate little challenge to conclusions, diagnoses governed by therapistclient privilege may be unaware of legal standards, rules of evidence avoid court appearances objectively evaluate defendant or claimant corroborate examinee s statements with collateral information assessment of psycholegal issue at stake assess for malingering or attempts to create a positive impression anticipate crossexamination; consider alternative hypotheses, explanations governed by attorneyclient privilege, if any familiar with caselaw governing the issue to addressed, Daubert, and other rules of evidence accept legal proceedings as part of their work; develop testimony skills present as psychotic but cognitively intact or vice versa. Some may present with only a very specific deficit, such as amnesia, incompetence to stand trial, or hallucinations. Often, the more general the malingering, the easier it is to identify and substantiate, both through testing and collateral sources. However, techniques to assess malingering of specific disorders and symptoms are still developing. Skepticism is an essential quality of a forensic examiner, but it should never be a substitute for data. Many treating professionals lack a critical mindset; in contrast, some forensic examiners become overzealous. People with real psychiatric conditions may exaggerate. And the presence of feigning or poor effort cannot automatically be assumed to be malingering because motivations other than material gain may, rarely, be present. For example, in factitious disorders, persons adopt a sick role not for monetary benefits but because it results in caretaking and nurture from medical personnel or family members: They like the way others treat them when people think they are sick. Three sources of information are important in determining the possibility of feigning: 1) semi-structured interviews that cover various aspects of the evaluatee s life, along with the examiner s observations of manner, both during and outside the interview; 2) specialized psychological testing; and 3) collateral information from family members, treatment providers, jail personnel, and police. PAGE 18

19 NOVEMBER/DECEMBER 2004 Interviews and observations Interviews are important to identify collateral sources and to obtain a measure of the defendant s consistency in reporting information. Not uncommonly, a defendant may tell the forensic examiner he left school in the sixth grade after telling jail medical or administrative staff that he completed high school. Credibility issues may also arise in how information is relayed. Psychologists are increasingly identifying behavioral indications of deceit, and it appears possible to train people as reasonably good lie detectors. 7 Some of the best evidence of malingering occurs when the examinee s demeanor changes when he knows he is under observation. At the Harris County Jail, defendants can often be seen talking in an animated manner with peers in their jail tank before they re called for the assessment. When they meet the examiner at the door, they may cross their eyes and walk past the examiner as if blind. As in the previous example, many malingerers badly overplay the part, giving themselves away quickly to a seasoned evaluator. Often, malingerers are unfriendly or subtly uncooperative. They may give very brief, unelaborated answers and be reluctant to volunteer information. Sometimes they refuse to sign information release forms so medical records can be obtained or say they don t know phone numbers of family members. Before standardized tests were widely available, practitioners improvised a number of approaches to help detect malingerers. For example, they might ask very easy questions that virtually anyone, whether mentally ill, brain damaged, or mentally retarded, should know (e.g., what are the colors in the American flag?). Psychiatrist Phillip Resnick has written extensively on how persons fake psychosis, detailing the ways in which reports of malingered hallucinations are likely to differ from legitimate ones. 8 Often, malingerers will report that they have experienced hallucinations all my life and experience them all the time. This is highly atypical for actual psychiatric patients. There are many ways, some subtle, in which a dishonest defendant may become apparent while discussing psychiatric problems if the examiner is attuned to the possibility of faking. Psychological testing Formal, specialized testing is increasingly recognized as important in cases involving claimed psychiatric or cognitive impairment for two reasons: effectiveness and accountability. As indicated earlier, there are reasons to doubt the ability of most clinicians to separate false from legitimate psychiatric complaints. Further, it is unclear if clinical judgment and unstandardized tests are sufficiently reliable or acceptable under the rules of evidence and Daubert/Kelly. Almost by definition, neither a clinician s judgment nor unstandarized test results will be subject to peer review, and rates of error will be unknown. All tests of ability, including IQ tests and neuropsychological measures, require a test-taker s best effort to be valid. In a death penalty case, however, a defendant has little reason to perform well. For this reason, IQ scores from school years are likely to be more informative than testing conducted for a criminal case. Test scores obtained after the subject s arrest should be given little weight unless the defendant s effort has been formally assessed, and even then, caution is warranted: None of the major IQ tests have indices designed to detect inadequate effort. Thus, an examiner must use separate tests to assess the testtaker s motivation. It would be possible for a defendant to try hard on one and not the other, and it would also be possible for an attorney to coach a client to recognize the difference between the tests. At least among personal injury attorneys, this appears an accepted practice. 9 In the early days of neuropsychological testing, it was believed impossible to produce a credible profile on the numerous tests that make up a typical neuropsychological assessment battery. However, this belief was shattered in 1978 when a classic study found neuropsychologists unable to identify malingerers at a level that much exceeded chance. 10 A subsequent study found not one in 42 neuropsychologists identified profiles of children instructed to malinger and that the clinicians expressed high confidence in their erroneous findings. 11 Since these embarrassments, neuropsychology has developed many procedures to detect cognitive malingering. Nonetheless, clinicians may not use them regularly, particularly if they lack training in testing. Two recent tests represent the state of the art in assessing poor effort on cognitive tasks. Both are ostensibly meas- Continued on page 20 PAGE 19

20 THE TEXAS PROSECUTOR Continued from page 19 ures of memory, but in fact are very easy. The Test of Memory Malingering (TOMM) is widely respected 12 and appears to be unaffected by depression or other psychiatric conditions. However, two limitations have become apparent: The usual cut score is too high for persons with dementia, and some will be falsely identified as feigning. Secondly, the TOMM may be substantially less sensitive (able to detect malingerers) than its rival, the Word Memory Test (WMT). A recent study found the WMT identified 37 percent of a population involved in litigation as feigning, while the TOMM identified only 12 percent. 13 Collateral sources Collateral sources are crucial in assessing both malingering and the defendant s actual level of functioning or impairment. Traditionally, clinicians have relied primarily on the patient s report, as objective truth was of less concern than the patient s view of the situation. However, such sources are essential for forensic psychological assessment. 14 These may include medical, school, financial, and employment records; family members; supervisors; friends; employers or co-workers; and observations outside of the examination room. Information from law enforcement on the details of the offense is close to essential; it will contain reports from thirdparty eyewitnesses about the defendant s conduct. The more impairment a malingerer displays during the evaluation, the greater the burden to keep up the act over time and in different settings. There will be strong temptation to drop the act when the person believes he is not under observation or when an attractive staff member of the opposite sex wants to talk. Although generally more reliable than the defendants themselves, collateral sources cannot be taken at face value. Family members may lie to assist the defendant s malingering. Treatment providers may be manipulated to provide credible, sincere, but false testimony about the extent of the defendant s mental impairment. Jail personnel may be invested in seeing defendants punished. Records can be incomplete and even wrong. In forensic assessment, virtually no source of information should be assumed reliable. Malingering of incompetence to stand trial Defendants who malinger incompetence often do not distinguish mental illness from mental retardation and present as both psychotic and ignorant. They may say they don t know what they are charged with or what the role of their attorney or the judge is. These answers are implausible in anyone without a documented history of moderate mental retardation, serious head injury, or dementia. All the aforementioned methods may be employed, as such person will often keep up the act only as long as the examination lasts. Quite often, an examiner can document evidence of malingering from multiple perspectives, including statements of collaterals ( He just plays crazy when he gets in trouble ), discrepancy in presentation during Defendants may say they don t know what they are charged with or what their attorney s or the judge s role is. These answers are implausible in anyone without a documented history of moderate mental retardation, serious head injury, or dementia. the interview compared to interaction with medical staff or while in one s jail cell, and failing scores on measures of both psychiatric and cognitive malingering. Occasionally, a savvy defendant will fake a specific deficit directly related to competency to stand trial. To be competent, a defendant must have a rational and factual understanding of the proceedings and be able to assist his attorney with a reasonable degree of rational understanding. If the defendant cannot remember the offense, his ability to assist in his defense could be seriously questioned. 15 Of course, the issue is easily claimed and hard to disprove. However, psychologists have developed some techniques to target malingering in specific areas. Feigned amnesia can be detected by creating a forced choice PAGE 20