| (March Newsletter 2003 - 2) The Court stated that in Crane, the Supreme Court explained the Kansas Supreme Court had interpreted Hendricks in �an overtly restrictive manner,� Carne, 122 S. Ct. at 868, for Hendricks �set forth no requirement of total or complete lack of control,� id. at 870, and purposefully avoided any �bright line� rule. Id. at 871. Since Hendricks was the clearly established law the Minnesota Supreme Court was bound to apply in Linehan IV, it is to that case that we look in analyzing whether the federal law was reasonably applied. Crane nevertheless has value in the process to the extent its discussion can sharpen understanding out of the Hend-ricks rule. See id. at 870-871. The Court concluded that the Minnesota Supreme Court did not unreasonably apply the clearly established federal law to Linehan. The Court stated that it was not unreasonable for the court to conclude that there was enough evidence in the trial record to establish that Linehan lacked adequate control over his impulses and that he suffered from a form of APD that warranted civil commitment under constitutional standards. Linehan�s claim that his indeterminate commitment under the SDP Act was unconstitutional must therefore fail. The Court further stated that the Minnesota Supreme Court reasonably applied clearly established federal law in narrowing the SDP Act in Linehan�s case to meet the substantive due process requirements set by Hendricks. Although Hendricks does not require proof of a complete lack of control, it does require impair-ment of the ability to control one�s behavior. In Linehan IV, the Minnesota Supreme Court defined the SDP Act�s lack of adequate control standard in a way that was not an unreasonable application of the law set by the United States Supreme Court since it requires a finding of volitional impairment in connection with a mental disorder or dysfunction which serves to distinguish a sexually dangerous person from a typical recidivist crim-inal. The Minnesota Supreme Court also reasonably applied clearly established federal law to the facts of peti-tioner�s case in concluding that the record showed he demonstrated a disorder making it difficult, if not impos-sible, for him to control his dangerous impulses and was constitutionally committed as a sexually dangerous person. We, therefore, affirm the denial of the petition for a writ of habeas corpus. Using Psychological & Psychiatric Testimony as an Advocate By Warren Maas, attorney Because the possibility exists for future jury trials for those currently being detained under Minnesota�s Sex Offender Civil Commitment Act, Citizens for Reform prints this article in hopes of preparing those that may be subjected to a drawn out jury trial in the future. We believe the article is appro-priate and timely in light of Dr. James Robinson Poole v. Michael O�Keefe, etc., Eighth Circuit Court of Appeals No. 02-2629M, now under review. Warren Maas is currently the head of the Hennepin County Civil Commitment Defense Project and writes as follows: Sex offender litigation is inextricably linked to psychological and psychiatric testimony. Whether as prose-cutor or defender, sooner or later an advocate will confront an expert witness that he or she will wish to dis-credit. Finding an expert who supports a particular point of view is less difficult than discrediting the opposi-tion�s theory while sustaining your theory. Therefore, it is necessary to understand that field in order to effici-ently cross-examine an expert. This article seeks to give basic information necessary to understand psychological methodology and suggests starting points for theories of a case, or at least theories for any given cross examination. It also seeks to raise questions about the legal system�s reliance on a field of science that is remarkably imprecise. Advocate�s Use of Psychological Testimony Since courts have broad discretionary power in admitting evidence for a jury, or broad discretion in accepting facts when acting as the finder of fact, the advocate must accomplish the following two objectives. 1. The scientific theory must be compelling so that the finder of fact is likely to accept the theory of the case the advocate is presenting. 2. The advocate must be rigorous when laying down a record. If an adverse ruling occurs, it will not be overturned unless the scientific evidence is clearly in the advocate�s favor. Book questions value of testimony Some writers suggest that psychological and psychiatric testimony is so soft that it should never be admit-ted into a legal proceeding at all. Jay Ziskin, a lawyer and psych-ologist, authored a set of books designed to discredit all psychological and psychiatric testimony in the courts. (Jay Ziskin and David Faust, Coping With Psychiatric and Psychological Testimony (4th ed. 1988).) Ziskin points out that courts have historically been dubious of psychological testimony. Ziskin�s work is heavily researched and has caused much anxiety in the forensic psychology and psychiatry fields over the years. For that reason alone, there is good reason to be familiar with his work. Forensic experts have in turn developed techniques to �survive� a �Ziskin� cross-examination. One misses the point, however, if one merely views Ziskin as a �how to� manual. Ziskin�s first and most enduring point is that the state-of-the-art behavioral sciences are lacking the precision that ought to be present in the forensic field. Case law changing Nevertheless, an over-reliance on Ziskin as either a �how to� manual or as a general theorist is not warran-ted. Legally, the scene has changed since the publication of his book. New cases have altered the case law on which Ziskin relied. (Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).) Further, continuing research has made forensic psychology more precise. Additionally, a practicing attorney sooner or later will need to produce a behavioral expert of his own and relying on Ziskin�s scorched-to-earth method will inherently weaken or discredit any psychiatric or psycholog-ical evidence an advocate wishes to offer to support their case. Accuracy of Psychological Testing In a recent article, it was argued that actuarial evaluations should be employed in place of clinical evalua-tions, as actuarial methods (i.e., methods based on statistical and demographic studies) are more accurate than clinical. (Dennis M. Doren, �Employing Actuarial Systems in Sex Offender Recidivism Risk Assessments: A More Scientific and Accurate Method,� 1 (1) SLR 3 (2000). |
|