Falsely Accused

Falsely Accused

On June 20, 1996, Kevin Lee Green left the Honorable Robert Fitzgerald’s courtroom—after 17 years confined in a California prison—finally a free man.

On September 30, 1979, Kevin Lee Green went out to get a hamburger, leaving his pregnant wife Dianna at home. When he returned around 20 minutes later, he found his wife had been attacked and beaten. Dianna was left in a coma for 1 month following the attack due to a blow to the middle of her forehead. She was 9 months pregnant with Kevin’s child, and their unborn daughter died in the womb. When Dianna awoke from the coma, she suffered from substantial memory loss and had “considerable brain damage” (Assembly Bill, 1999).

Kevin Green told police he left the apartment where the two lived to get a hamburger, and the employee at the hamburger stand testified that Green had been there. Police found that the food Green had in his possession was still warm when they arrived. These statements and evidence, however, did not prevent them from charging Green for the murder of his unborn child and the attempted murder of his wife.

On October 2, 1980, an Orange County Superior Court jury convicted Kevin Lee Green of one count of second degree murder, one count of attempted murder, and two counts of assault with a deadly weapon.

The prosecution’s main witness was Dianna Green herself. In fact, because there was a complete lack of corroborative evidence, the entire case rested on Dianna’s testimony. Although she had lost much of her memory and suffered incredible brain damage, Dianna testified that her husband had struck her in the head that night, serving as the only witness against Kevin Green. Psychiatrist Dr. Martin Brenner found Dianna a reliable witness, enabling her to take the stand. The defense’s request to have an independent psychiatrist evaluate her mental state was denied. While on the stand, Dianna found it difficult to spell her own last name.

Never did Kevin Green admit guilt, maintaining his innocence throughout the trial and the years he would spend in jail. He testified that upon his return home from the hamburger stand, he saw a man in a dark van quickly leaving the crime scene, but police did not consider this important enough to investigate.

On November 7, 1980, for allegedly attacking his wife and killing his unborn child, a judge sentenced Green to 15 years to life in prison. Although he knew that his chances for parole were higher if he expressed regret for his “crimes,” Green held to his assertion of innocence throughout the entire time he was in prison. His refusal to lie led to his being denied parole four separate times.

When Dianna was attacked, Kevin was a corporal in the United States Marine Corps, and he intended to make military service his career, as his father had done. The Marine Corps gave Green a less than honorable discharge, which further penalized him as it prevented him from serving in the military again or from receiving retirement and other military benefits.

Vaginal slides taken from Dianna Green after the attack showed the presence of spermatozoa. Kevin Green tried, while in prison, to raise enough money to take a DNA test to prove the evidence left in Dianna did not match his DNA. This would allow the case to be reopened. He was never able to afford the test, and although he had passed at least one polygraph test before the trial, investigators refused to reopen the case.

In 1982, an appeal in district court affirmed the conviction, so Green petitioned the State of California Supreme Court for a hearing.

When the DNA offender database was created in California, examiners discovered that the DNA profile in the spermatozoa found in Dianna Green was a match to another felon. Gerald Parker gave a full confession and admitted guilt to five other murders. Parker, also known as the serial killer called the “Bedroom Basher,” was responsible for the attack on Dianna Green and the death of the Greens’ unborn daughter.

Kevin Lee Green was granted habeas corpus and immediately released from prison on June 20, 1996, by the Honorable Robert Fitzgerald, Judge of the Superior Court for the County of Orange. The same day, “the Honorable Robert Fitzgerald further found and ordered that Kevin Lee Green was factually innocent of all charges and that all allegations against him relating to the September 30, 1979, attack on Dianna Green were untrue” (Assembly Bill, 1999).

Green had spent approximately 17 years in prison for crimes he did not commit. Kevin Lee Green entered prison at age 21, and was exonerated when he was 37. He was unable to attend the funerals of both his grandmothers and his grandfather because he was incarcerated at the times of their deaths. His sister and brother both married while Green was in prison.

In October 1999, California Governor Gray Davis awarded Green $620,000 as compensation for his time spent wrongfully imprisoned. Currently, Green lives in Jefferson City, Missouri, and is trying to rebuild his life.

References

California State Legislature. (1995, October 5). Assembly Bill No. 110. Retrieved March 21, 2007, from http://info.sen.ca.gov

Innocence Project. (n.d.) Kevin Green. Retrieved March 21, 2007, from http://www.innocenceproject.org/Content/162.php

Williams, M. (2001, February 22). Following other states’ lead, Missouri lawmakers consider funding post-conviction DNA testing. Retrieved March 21, 2007, from http://www.mdn.org/2001/STORIES/DNA.htm

Book Review: Trials and Tribulations

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Book Description

Medical malpractice has become a hot issue in our litigious society. The trial lawyers are locked in battle with the doctors, while the politicians and the patients look on. This is about one skirmish in that battle, told by one of the casualties.

Donald Austin, M.D., was a well-respected neurosurgeon, operating at the cutting edge of medical technology. He was justly regarded as an expert in the field, and as such gave testimony for the defense in many malpractice lawsuits. However, he was shocked by some instances of malpractice, and when he decided to testify for plaintiffs as well, he did not bargain for what ensued. As his testifying became known, both his professional colleagues and the medical societies carried out a smear campaign that ended his professional career.

About the Author

Donald Austin, M.D., is a third-generation doctor. A native of Indiana, he now lives in Michigan. He was chief of the neurosurgery section of the Hutzel Hospital in Detroit for many years and associate professor of neurosurgery at Wayne State University. He is married, with four grown children, and is now, reluctantly, retired.

There is no such thing as a small fire. Fire knows no boundaries and adheres to no restrictions. It is limited only by its supply of oxygen and the availability of a fuel source. Someone can set a small and insignificant fire, but fires only start small. They can fizzle out and die, but all too often they grow, vast and terrible. They destroy property. They take lives.

Sadly, the most persistent and dangerous incendiary fire-setters are the weakest and least responsible of us all: children. According to the New Jersey Division of Fire Safety, juveniles in the United States annually set 41,900 fires that result in 165 deaths, 1,900 injuries, and $272 million in property damage. Fifty-five percent of all arson arrests in the United States are children under the age of 18, nearly half of whom are under the age of 15, and 6.8% of whom are younger than 10 years old. Who are these children, and why do they set fires?

A 3-year-old innocently playing with a cigarette lighter left out by a careless parent might cause a conflagration in which his entire family dies. A 10-year-old might ignite his mattress in a desperate attempt to draw attention to an intolerable home situation. A high school student might throw a match into a wastebasket so that an alarm will go off and disrupt a dreaded test. One teenager might set fire to a car. Another might set fire to a rival’s home. Some have even been known to toss flammable liquids on derelicts because it amused them to watch the wretched souls flailing frantically at flames and screaming in pain. A successful actress I once knew told me that as a child, she had set fires for emotional relief. Children set fires out of boredom, anger, and rage. The motivations of youthful fire-setters run the gamut from curiosity to pathology, from innocence to evil.

Recently, I received a letter from a special education teacher, whom I will call Sarah Nelson, who works for the New York City school system. Her letter began:

Dear Shelly,

Gerald, who is repeating third grade, did so well that I was wondering WHY he had been placed in my class until, following a real fire evacuation at about 11 o’clock that morning (after someone had set the paper towel dispenser in the boys’ bathroom ablaze), I was called into the principal’s office.

There sat Gerald, two other boys, and his teacher.

“Mrs. Nelson,” asked the principal. “Was Gerald with you between 10:45 and 11:00 a.m. today?”

“Yes. He was taking the assessment test.”

“Did Gerald leave you at any time to use the bathroom?”

In the 47 seconds or so that Gerald had taken “to relieve himself,” he had pulled out a purloined lighter from his pocket and lit up the paper towels.

And this was not his first fire of the day!

A few hours before, Gerald, in the presence of the other two boys sitting in the principal’s office, had used matches to light up a toilet paper roll!

In the case of the paper towels, one of the male teachers had happened by, saw flames coming from the dispenser, rushed to the science room where there were two buckets filled with water, and attacked the fire. It was then that smoke had come pouring out of the bathroom and the alarm had been sounded.

Dismayed as I was to hear about these fires, it was not until I had read the next paragraph that I changed my mind about how I was going to approach this subject:

Of course, we did not DARE disturb the fire department to check our suppression efforts and/or “light” into the student body about fire safety. And our principal refuses to let us cover the incident in our student newspaper. It is for this reason I thought of you and wondered if you could give me some tips about juvenile fire-setters.

Needless to say, the small, unreported fires in Sarah’s school did not loom in my mind as small. I saw them as the deadly conflagrations that they might so easily have become. To alert my friend to the seriousness of her situation, I related some frightening statistics accumulated in the spring of 2004 by the Massachusetts Coalition for Kids in Danger. The Coalition’s purpose was to track media coverage of children who set fires or set off bombs.

In the first 201 days of the project, children burned over 57 vehicles, set fires that destroyed over 48,594 acres of forest, set 218 houses on fire, and destroyed 228 apartments, 30 businesses, and 13 churches. Additionally, they killed 80 people (26 of whom were children who perished in fires that they, themselves, had set) and injured 346 people, including 63 firefighters, police officers, and bomb technicians. Relative to institutions of learning, in its first 7 months of information gathering, the study found that 301 or 31% of the 901 fires set by children had targeted schools. These statistics, however, reflect only fires that were reported in the media. If we could add in fires like those described to me by Sarah Nelson—ones left unreported because principals do not want their schools to look bad—the statistics would become ominous indeed.

My involvement with juvenile fire-setters began when a polygraph expert contacted my late husband and me. He had been hired by a drug rehabilitation facility that I will call Kid City (my version of Boys Town) to determine which of the young people on the premises was responsible for setting a series of fires. Because there were hundreds of suspects and the polygraphist could not possibly test them all, he suggested that Kid City hire us. Our company, Charles G. King Associates, investigates the origin and cause of fires (origin: where a fire started; cause: what or who initiated the blaze).

At that time, most of the high school-aged children in Kid City had either been remanded there by the courts or had been placed there by family members or guardians for drug rehabilitation. The greatest percentage of those in the facility were criminals, and some were hardened criminals. All were underage. Their ages were relevant because Kid City was mandated by law to maintain the absolute confidentiality of their juvenile population. This meant that, although the local fire department could be called in to fight a fire, after extinguishment, they were required to leave. Nor would a city, county, or state fire marshal be permitted to enter the building to analyze the fire scene, search for hidden stashes of matches, or interview the residents.

This left Kid City in a terrible bind because at least one of their residents had set a series of fires, but, unlike the public school system situation related to me by Sarah Nelson, Kid City was completely committed to the continued safety of the young people in its charge. This is why they brought us in to investigate the fires. First, Charlie and I were asked to sign documents protecting the confidentiality of the residents (all of the names and places in this article have been changed); then we were briefed.

Kid City was located about 2 hours north of a big eastern city. The four-story structure was slightly larger than a county hospital, and it was surrounded by acres of beautiful farmland where residents were encouraged to grow crops and take nature walks. Other than some pleasant administrative offices on the ground floor and an elegant wood-paneled religious sanctuary, the building itself was institutional and utilitarian: cinderblock classrooms, cinderblock dormitory, communal dining rooms, and so on.

During our briefing by the director of Kid City, we were told that over the past seven months, three fires had occurred:

1. February 28 –Someone had taken a bunch of papers, piled them in a bin in the basement of Kid City, and ignited them. The fire was set at 8:20 a.m.
2. July 13 –Someone had shoved a wad of toilet paper between the arm and cushion of a sofa and set it on fire. This fire had not occurred at Kid City proper, but at its induction facility over 50 miles south. The fire had been discovered a little after midnight.
3. August 14 – This fire was set between two mattresses stored in the cinderblock closet of an empty room on the fourth floor of Kid City where the kids used to “coop,” or hang out. The fire occurred at 6:57 p.m.

We were called in after the third fire. Initially, the task of discovering who had set these fires was daunting, in no small part because our pool of suspects was upward of 150 residents. We then had to multiply this pool by three (once for each fire). In order to cut the list down to a manageable size, we asked the administrators to go through their files and give us only the names of those residents who had been at Kid City for at least the last two and optimally for all three of the fires. This reduced our pool to a little over one hundred suspects. To whittle the list down further, we drafted an affidavit and had copies distributed to the 100 plus residents on the list, as well as to all of the counselors, teachers, and administrators in Kid City.

The affidavit asked the individual to write his or her name and to answer four questions about each of the three fires. The questions were carefully worded to make the respondents feel that they were only reporting their observations, and not being tattletales or informants. It was not their job to identify the fire setter, it was ours. The four questions were

1. Where were you at the time of the fire?
2. What were you doing?
3. Who did you see?
4. Who saw you?

After the forms had been filled out, they were returned to us. Once we had a chance to look them over, we realized, somewhat to our surprise, that not only had the residents been willing to answer our questions, they had done so eagerly. We also noticed that fear of injury or death superseded peer group loyalty. The teenagers in the facility had a firm grasp of how dangerous a fire could be. Most of the students had been in residence only for the fires that had occurred in Kid City and made no mention of the fire at the induction facility. Many gave detailed observations that specified locations, recalled times, and named names. What follows is a sampling of typical responses:

Richard C.

During the first fire I was with my clan leader Evelyn V. talking about my problems. Then I went to seminar at 1:00 o’clock.

During the second fire I was in the rec room relating with Margaret C. Rene D., Dave H., Todd M., Marty E., and Jerome L.

Ken B.

First Fire – I was eating lunch until approx. 12:45. Then I went down to the auditorium for seminar. I do not remember who I was with at the time. Evelyn V. was going to give the seminar. I was reading until the fire began. At approx. 1:05 the alarm went off and I went outside.

Second Fire – I was in the recreation room, listening to music with Donald A., Joe Z., Joe B., and one other person. At approx. 9:30 I went upstairs to my room, and was still there when the alarm went off. When I was leaving the floor during the alarm, Bill D., saw me on the floor.

From these responses, we extrapolated where people were, when they were there, what they were doing, whom they saw, and who saw them. Then we tediously cross-referenced times, places, and residents. If Donna wrote that she had seen Thomas, Iris, and Edwin in the basement, we wanted to know if Thomas, Iris, and Edwin had also seen Donna. Our ultimate goal was to identify who had been in the area of the various fire scenes at the times of the fire and who had not.

The work was time-consuming and required meticulous attention to detail, but it produced results. Once we had completed and studied our charts, we were able to eliminate all but four suspects: Chris Ramirez, Fred Pozniak, Tyrell Washington, and Randy Scarp.

Chris Ramiriz

• Chris Ramirez had been seen on the fourth floor immediately before the fire.
• When the alarm went off, he was overheard saying that there were mattresses in room 411 that would be easy to set on fire.
• He was seen smoking a cigarette on the fourth floor immediately prior to the fire.
• He had set two fires before he was 6 years old. One in his grandfather’s garbage and one in his father’s grocery store. Coincidentally, the pizza store next door to his father’s grocery store had also burned down.

Fred Pozniak

• Fred Pozniak was seen on the fourth floor shortly before the fire.
• He was moody, quiet, and used to hang out on the mattresses in the “fire room.”
• He was a bed wetter and claimed to have been an abused child.
• He was a loner and was picked on and teased for being unattractive.
• He was very grim and depressed on the day of the fire.

Tyrell Washington

• Tyrell Washington had told two other boys at Kid City that he had a prior arrest for arson that was not in his records.
• He was present for all three fires.
• He had a hostile attitude and was overheard threatening to blow up the building.

Randy Scarp

• Randy Scarp wanted to leave Kid City and hated the place.
• He was reported to have a sadistic streak and laughed when other people were in pain.
• He seemed to have no control over his emotions.
• He was heard stating that “people are going to start dropping” at Kid City.
• Many of the other residents thought that he was not really a drug addict, but that he was crazy.

Once our list had become manageable, we moved to the next phase of our investigation. This was to interview each suspect individually and ask him what he had seen, when and where he had seen it, and who he thought had set the fires. Our interview strategy was low-key. Each youngster would be brought into a private room, asked questions, and invited to respond at length. None of the interviews were tape-recorded. Nobody from the staff was present. Charlie and I took turns asking questions, and I took all the notes.

After we had finished our interviews, we created four final charts, one for each suspect. Each consisted of three columns. The first column was headed “Witness” and listed the names of the residents who had seen one of the four main suspects at the time of a fire. The Second column was headed “What clears him” and delineated what the witness had seen that seemed to exculpate the suspect. The third column, headed “What makes him look suspicious,” did the same for what made him look guilty.

The following might be a typical entry for Tyrell Washington:

• Witness—Bill Hix
• What clears him— Bill saw Tyrell in the courtyard after dinner.
• What makes him look suspicious—Tyrell was present for all three fires and is known to have a hostile attitude. He told Bill and at least two other kids that he had been arrested for arson prior to coming to Kid City. Bill also overheard Tyrell threatening to blow up a building.

Our analysis of the entries on these four charts made it evident that only Randy Scarp had been sighted by multiple witnesses in the areas of all three fires. The “conclusion” column on his chart read:

Randy Scarp is the only suspect who was confirmed to be on the fourth floor at the time of the fire and who admits to being there. He denies setting the fire, but cannot explain why he did not see who did, because he was in the hall at the time the fire was set. There is also a problem with his disposal of a cigarette he was smoking at the time, as he said that he tossed it out a window, but that window is covered with a screen.

At the interview, he presented himself as compassionate and good-natured. He said he did not resent being accused of setting the fire, that he was not angry, and that he had not been out to get anybody lately.

The most suspicious thing about Randy, other than his proximity to both fires, is the benign way in which he presented himself. This benevolence is in complete contrast to the way others describe him. Also, unlike the others who were interviewed, at the end of his interview, we felt that Randy gave an audible sigh of relief that it was over.

After we had finished our interviews, our charts, and our analyses, we told the Kid City director that we had eliminated three of our four prime suspects and that we believed Randy Scarp, alone, had set all three fires. He responded that they were going to polygraph all four boys.

Subsequently, the polygraphist told us that Randy Scarp was, and I quote from my notes, “heavy duty guilty.”

Nevertheless, all four boys were kicked out. Charlie and I may have cleared Chris Ramirez, Fred Pozniak, and Tyrell Washington of involvement in those specific incendiary incidents, but Kid City was not going to take any chances. Fire is too dangerous, and too many lives were at stake. They knew, as we do, that children who set fires are a fact of reality, an unfortunate fact brought home to me when my friend, Sarah Nelson, contacted me again—this time on a cell phone from her classroom. After a minute or two, I had calmed her down enough to learn that two more fires had been set that morning in her school. As before, school officials had themselves extinguished the fires and had not contacted the fire department. Unlike the administrators at Kid City, they had not learned the most important lesson about fire, one I believe should be engraved in giant letters for all to see:

THERE IS NO SUCH THING AS A SMALL FIRE. THERE ARE ONLY FIRES THAT HAVE NOT GOTTEN BIG—YET.

Shelly Reuben King is the author of Tabula Rasa, Origin & Cause, Spent Matches, the Edgar-nominated Julian Solo, and Weeping. She is a licensed private detective and a certified fire investigator who has been investigating fires and arson for more than 20 years. King is a Diplomate of the American Board of Forensic Examiners and has been a member of the American College of Forensic Examiners since 1996.

He Made Mute Evidence Speak: Edward O. Heinrich

He Made Mute Evidence Speak: Edward O. Heinrich

he crowded Number 13 train was on its usual route as it headed into Tunnel 13 through the Siskiyou Mountains in Oregon, just north of the California border. It was October 11, 1923, and the train was bound for San Francisco. Nothing that day appeared to be out of the ordinary, so engineer Sidney Bates was oblivious to what awaited him on the other side of the half-mile tunnel. As the train emerged from the dark into daylight again, two masked men with guns jumped out and demanded that Bates stop the train. When he complied, a third man appeared, shoved a bundle through the door of the mail car, and ran. A second later, a blast shook the train, triggering a fire. Shots were fired in the ensuing confusion that left three trainmen, including Bates, dead. The clerk trapped in the mail car burned to death and the three bandits-turned-killers fled without the money they had come to grab. Some of the horrified passengers managed to alert authorities.

THE FORENSIC EXAMINER Fall 2007

By Katherine Ramsland, PhD, CMI-V

Daniel O’Connell, chief of the Southern Pacific police force, was the first investigating officer to arrive. Near the damaged train he found a battery linked to a detonating device, a pair of gunny-sack shoe covers, a revolver, and a pair of greasy denim overalls. Although teams equipped with dogs had caught the killers’ trail, they did not track them down. The discovered battery led officials to a mechanic in a nearby town and, noticing that his overalls were greasy, arrested him. He claimed he had never seen the battery before, but when the overalls taken from the scene fit him, he was detained. Authorities were unable to connect him to the crime, but, having no other leads, they were not about to let go of this rather sensational investigation.

Someone had heard of a chemist down in Berkeley, California, with a reputation for tackling tough cases. His name was Edward O. Heinrich, and, reportedly, he used science to solve crime. While not everyone trusted his techniques in an era when science was not yet common practice for investigators, he had often surprised people with solutions that stood up in court. Using objects such as hair, threads, dust particles, and bullet fragments, he could coax otherwise mute evidence into telling a story. Some people called him the “Edison of crime detection.”

Although the Oregon investigators saw nothing on the overalls that could possibly offer any leads, they sent them on to Heinrich, along with the shoe covers, the revolver, a summary of the facts, and a description of their jailed suspect. He accepted the case, and thanks to a chemical analysis, a microscope, and careful observation, he spotted a lot.

“You have the wrong man,” he told them, adding that the overalls had been worn by a left-handed, twenty-something-year-old Caucasian lumberjack who worked in the Pacific Northwest. The wearer of the overalls, according to Heinrich, stood no taller than 5’10 and weighed about 165 pounds. He also had small feet for his size, light brown hair, and a fastidious habit. The mechanic, who did not resemble this description, was freed.

Heinrich pointed out that stains on the overalls were not car grease, but pitch from fir trees; their size, with the shoe covers, had provided the suspect’s height and approximate weight. Tiny wood chips in the right pocket indicated the position the man took when cutting a tree, and because the overalls buttoned on the left and there was more wear on the left-hand pocket than the right, it stood to reason that the person who wore them was left-handed. Hair shafts caught on an overall button indicated his race, age, and hair color, while fingernail clippings in one pocket affirmed his tendency toward neatness. More interesting was a receipt for registered mail overlooked by other investigators: it was burrowed deep inside the narrow bib pocket, and magnification had offered a number.

This evidence led to the three D’Autremont brothers, missing since the incident, one of whom was a left-handed lumberjack of the right size and age. Evidence from the brothers’ personal effects matched evidence on the overalls, and strands of hair and fibers from items in their homes were consistent with evidence from the scene. A knapsack found days later near the train tunnel yielded minute grains of dust like that on pine needles taken from the overall pocket. In fact, the knapsack had been mended in the same manner and with the same type of thread as a worn area on the overalls.

Heinrich also turned his skill to the revolver, which the investigators had deemed worthless for clues because only part of the serial number was legible. He found a hidden serial number that led to a sales slip that had been signed with an alias; however, the handwriting, according to his expert analysis, was that of Roy D’Autremont. After a tedious manhunt that spanned several years, the youngest brother was finally caught, creating press coverage that led to the apprehension of the other two. They all confessed and were given life in prison (Thorwald, 1966).

This case earned Heinrich another nickname: the American Sherlock Holmes, which he disliked. He claimed that Holmes acted on hunches rather than calculating methodically with solid science. “Hunches play no part in my crime laboratory,” Heinrich told reporter Eugene Block, explaining further that all criminals left clues that decreased the pool of suspect possibilities. His procedure was to reconstruct the crime “by visualizing the habits and actions of the criminal.” He started with the manner in which the crime had been committed and applied the relevant area of science to the debris left behind (Block, 1958). Hunches had no place.

The forensic arena during the 1920s was in a state of chaos, as charlatans touted themselves as “experts” and no one held them accountable. Heinrich was aware of this and wanted to improve the situation, at least in his corner of the world, so he went to work learning everything he could about forensic chemistry, handwriting analysis, ballistics, and trace evidence investigation. He excelled in all of these areas. He was among the first investigators to use strings to compute bullet trajectories. Despite having a wife and two sons, Heinrich despised vacations and was most happy when he could immerse fully in a project that exercised his intellectual skills.

He became one of the greatest forensic scientists of the early twentieth century, a living encyclopedia of the natural sciences, and his reputation spread across the country and abroad. His formula relied on answering five questions: what, when, where, why, and who, and his specialty lay in ferreting out more key minutiae at a crime scene than anyone else—including the bad guys. “The smaller the detail,” he would say, “the more likely it is that the criminal has overlooked it” (Block, 1958).

In the course of one case, Heinrich actually learned several Hindu dialects. It was during World War I in 1916, and British military intelligence sought information about a conspiracy of revolutionaries who threatened to weaken the country’s resources. The authorities had papers in different dialects, which they could translate, but they were unable to identify the authorship. When Heinrich consulted, the only solution he could see was to translate the papers himself, so that he could discern between analogous styles; this would mean learning all the dialects. Tutors were employed and the task took months. The process that eventually solved the puzzle included a chemical analysis of the inks used and a complete examination of several confiscated typewriters. Finally, however, Heinrich provided the information necessary to connect the papers with specific people. The conspiracy was larger and more complex than anyone had realized, and, ultimately, 31 participants were arrested and convicted. For Heinrich, the triumph belonged to science.

As a teenager growing up in Tacoma, Washington, he had acquired part-time employment in a pharmacy. He used the opportunity to learn everything he could about the trade, and he would later comment, “A drugstore is a veritable laboratory in behavioristic psychology. I learned what people do in secret” (Block, 1958). Without the benefit of formal schooling in the subject, at only 18 years of age, he passed the state pharmacy exam. A pharmaceutical career was not to be his destiny, but was just one step along the way.

Heinrich received a chemistry degree from the University of California at Berkeley. He went to work for the city of Tacoma, but his knack for solving crimes put him in demand as an investigative consultant. By 1916, he had become the chief of police in Alameda, California, where he trained his investigators in scientific procedures; 3 years later, he accepted a post in San Francisco as a hand-writing expert. He also taught courses at his alma mater.

Journalist Eugene Block collected Heinrich’s most “insoluble” cases into a book and called Heinrich the “Wizard of Berkeley” to convey a sense of his extraordinary intuitive powers, though Heinrich himself believed his deductions were merely a matter of the proper application of scientific methods. In Heinrich’s mind, science was never wrong.

On the night of August 2, 1921, a man arrived at the home of Father Patrick Heslin in Colma, California, in urgent need of a priest: a friend of his was dying. Father Heslin accompanied this stranger, but failed to return. Soon, an anonymous and disjointed letter arrived from San Francisco demanding a ransom of $6,500 for the priest. The correspondent indicated that Heslin had been beaten unconscious and described an elaborate arrangement that involved releasing chemicals to kill him. The kidnapper promised another letter, but it failed to arrive. Unable to develop leads and fearing the worst, local police contacted Heinrich.

Heinrich had worked, by this time, with August Vollmer, the police chief in Berkeley who had encouraged Sergeant John Larson to devise a machine that could measure deception via elevated heart rhythms and systolic blood pressure. Now, they would have cause to put the device to the test.

Heinrich arrived in Colma and studied the ransom letter. He could not tell them much, but of one thing he was certain: the correspondent was a baker. The police were skeptical, but Heinrich was firm that the lettering was the style taught to cake bakers. How he knew this he did not say, but after the manner of Doyle’s Sherlock Holmes, he trained himself daily in gathering information about a diverse range of subjects. Still, this identification did not offer much in the way of leads, so authorities offered a reward.

A week passed and a Texan named William Hightower entered the Archbishop’s office. He told an elaborate yarn that included how he had heard that Father Heslin was dead and buried. In fact, while digging for bootleg liquor he had found what he believed must be the spot, because the dirt was loose. He had seen the offer of a reward and he wanted to claim it. So Hightower led detectives to the suspected burial spot, indicating the location of the grave’s foot end, and some digging soon unearthed the corpse; Heslin had been beaten over the head and shot twice. The police then took Hightower, who was a baker, in for further questioning. They thought he knew the burial site just a little too well, but he stuck by his original story.

Larson brought in his lie detector, and as Hightower answered questions, it was clear from changes in his blood pressure that he was lying. Larson concluded that Hightower had murdered the priest, but it remained for the evidence analysis to prove it (Wilson, 2003).

Further searching of the burial place produced a tent peg wrapped with white cord. In Hightower’s room they found a canvas tent imprinted with the word Tuberculosis. Heinrich’s inspection of a jackknife removed from Hightower’s pocket showed microscopic shreds of white cotton like that of the cord on both the tent peg and the tent. Sand in the knife’s hilt was identical to that at both the burial site and in the tent seams. Heinrich also compared the handwriting on the tent to that in the ransom note and in poems penned by Hightower, affirming that they all originated from the same source. Also, a typed section of the note had been produced on a typewriter traced to Hightower.

From this stack of evidence, Heinrich surmised that Hightower had slain the priest at the burial site, wrapped the body in the tent to await burial the following night, and used the disease label to prevent the curious from looking inside. Hightower was convicted of murder and given a life sentence.

In another case, Heinrich introduced a new type of evidence into the courtroom. John McCarthy, foreman for the Vallejo Street Department, entered his home on December 19, 1925, and was shot in the chest. As he was dying, McCarthy stated again and again, “I fired Colwell.” The police believed he was referring to Martin Colwell, 59, a local ruffian with a criminal record for assault. McCarthy had dismissed Colwell from a street labor gang and Colwell had, on drunken binges, threatened revenge.

A .38-caliber bullet was recovered from McCarthy’s body, and when police arrested Colwell, they found a .38 revolver in his pocket with one chamber empty. He had three more bullets on his person, and a box of ammunition from his home showed four bullets gone. Colwell could not account for the missing bullet, protesting he had been drunk at the time of the incident. He remembered nothing.

The gun and bullets went right to Heinrich. Having versed himself in the emerging science of ballistics, he used the gun to test-fire one bullet retrieved from Colwell’s pocket, several from his ammunition box, and others from an unrelated batch similar in caliber. Examining the bullets under a stereoscopic microscope, along with the recovered bullet that had killed McCarthy, Heinrich found convincing similarities that led him to believe that Colwell’s revolver had fired the fatal bullet.

However, as the January trial approached, the prosecutor was concerned that the ballistics analysis would prove insufficient, so Heinrich strove to produce photographs that would show the tiny rifling scratches on the bullets in a side-by-side comparison, as a single three-dimensional image. He experimented over and over until he was able to successfully click his two cameras simultaneously over the dual microscope lenses. No court officer had ever before seen such an image, where the photographs of two different bullets seemed to perfectly merge, and they thought it was impressive. As Heinrich made his presentation to the jury, with photographs, he called the marks the weapon left on the spent bullets a “bullet fingerprint,” setting a precedent in an American court. Another ballistics expert confirmed Heinrich’s work, but the defense had a witness as well who contradicted them both, so the jury hung.

The case went back to trial. This time jury members asked to look into the microscope to see for themselves what Heinrich had observed. Heinrich took advantage of the unique opportunity to teach laypeople the methods of science and arranged for a demonstration, allowing each jury member to look through the lenses. But they wanted more. They asked Heinrich to re-shoot the photographs in front of them. He accepted the challenge and then took the negatives to a nearby darkroom, accompanied by the bailiff. Under these difficult conditions, he replicated his laboratory feat and the jury was finally convinced. Despite the defense’s attempt to introduce new alibi witnesses, after only an hour of deliberation, the jury sent Colwell to prison. Heinrich’s approach inspired refinement of the equipment so that future scientists could more efficiently offer results.

Throughout his long career, Heinrich continued to expand his knowledge into other fields, including even the authentication of works of art and the restoration of burned papers to the point of legibility. He kept working past the typical retirement age, but on September 28, 1953, the world lost a brilliant forensic scientist when the Wizard of Berkeley, at age 72, suffered a stroke and died. He would have enjoyed seeing the procedures he developed or refined nearly a century ago still being used today to make mute evidence speak.

Works Consulted

Block, E. The wizard of Berkeley. New York: Coward-McCann, 1958.

Evans, C. The second casebook of forensic detection. Hoboken, NJ: John Wiley and Sons, 2004.

Thorwald, J. Crime and science. New York: Harcourt, Brace & World, 1966.

Wilson, C., & Wilson, D. Written in blood: A history of forensic detection. New York: Carroll and Graf Publishers, 2003.

About the Author

Katherine Ramsland, PhD, CMI-V, has published 29 books, including The CSI Effect and Beating the Devil’s Game: A History of Forensic Science and Criminal Investigation. Dr. Ramsland is an assistant professor of forensic psychology at DeSales University in Pennsylvania, is a Certified Medical Investigator (CMI-V), and has been a member of the American College of Forensic Examiners since 1998.

Fall 2007 THE FORENSIC EXAMINER

Redefining Mental Retardation in Capital Murder

Redefining Mental Retardation in Capital Murder

Of Unsound Mind

According to court records, Jorge Junior Vidal was born in Delano, California, on October 23, 1969 [See: People v. Superior Court (Vidal), 07 S.O.S. 1781; People v. Superior Court (Vidal), Ct. App. 5 F045226 (2004); People v. Vidal, Tulare County Super. Ct. No. 69782-C]. On January 24, 2001, Vidal was one of seven men who invited Eric Jones to enter a private garage to join them in “getting high.” Once inside the garage, instead of partying, Jones was bound, hands and feet, with an extension cord and beaten severely. Vidal reportedly stripped an electrical cord, attached the exposed ends to Jones’ fingers, poured water on the garage floor where Jones lay, repeatedly inserted and removed the plug from a wall outlet, and as Jones was being shocked, asked, “Are you feeling energized?” At some point, Jones’ clothes were cut off, and while he was being brutally sodomized, stabbed with a screwdriver, and jolted with a stun gun, music blasting from a car radio was used to drown out his screams. Eventually, Jones was thrown into the trunk of a car and driven to a field in southern Tulare County, where he was shot nine times at close range in the back and through his cheek. Left naked in the field, Eric Sean Jones, who was 17 years old at the time, bled to death within a few minutes, after having been tortured for nearly 2 hours. All this was apparently done in response to or in retribution for Jones’ earlier alleged attempt to steal Vidal’s car.

Three days after Jones was killed, Vidal and two others were arrested and charged with Jones’ “torture killing.” Of the seven men involved in the crime, two, Juan Dedios Soto and his younger brother Gerardo Soto, have yet to be apprehended and are believed to have fled to Mexico. Gerardo Zavala was convicted of second-degree murder and sentenced to 16 years to life. Keith John Seriales and Daniel Portugal were each convicted and sentenced to life in prison, without the possibility of parole. Tyrone Ebaniz’s conviction (for 1st degree murder, torture, and kidnapping) and sentence (36 years to life) has been overturned twice on appeal (because of error in jury instructions), with his third trial pending. Ebaniz was 16 years old at the time and, reportedly, Jones’ best friend.

Vidal was charged with murder (with special circumstances and enhancement), torture, forcible sexual penetration, sexual assault in concert, unlawful sexual penetration of person under age 18, kidnapping, false imprisonment, multiple counts of unlawful weapon possession, and other lesser charges. The prosecution filed the case as a capital offense; the defense responded by filing a motion to preclude the imposition of the death penalty under Atkins, as implemented in California law [See: Atkins v. Virginia, 536 U.S. 304 (2002) and California Penal Code Section 1376]. California law allows defendants a choice in this matter: to have the issue decided by a judge in a pretrial hearing or by a jury after the guilt phase of trial. Opting for the former, in October 2003 and March 2004, Vidal’s motion was heard during an evidentiary hearing.

Proving Mental Retardation

As might be expected, psychological experts for the defense (who has the burden of proof) and the prosecution disagreed as to whether Vidal met the legal standard for mental retardation. Consistent with the clinical diagnosis of mental retardation or intellectual disability of both the American Association on Intellectual and Developmental Disabilities [AAIDD; known as the American Association on Mental Retardation (AAMR) prior to 01/01/07] and the American Psychiatric Association (APA), the legal definition of mental retardation set forth in both Atkins and the California Penal Code involves a three-pronged test: significantly sub-average general intellectual functioning, which must exist concurrently with deficits in adaptive behavior, and which must have a manifest onset before the age of 18 (AAMR, 2002; West, 2007; APA, 2000; Atkins v. Virginia, 2002).

In assessing the first prong of mental retardation—Vidal’s general intellectual functioning—the psychologists were able to review several standardized intelligence tests administered to Vidal through the public school system as early as 1980 (when he was 11), as well as one administered by a defense expert in 2003. Across administrations, Vidal consistently scored in the mentally retarded range in terms of his Verbal Intelligence Quotient (VIQ), while his Performance Intelligence Quotient (PIQ) ranged from average to high average (See Table 1). Vidal’s Full Scale Intelligence Quotient (FSIQ) ranged from borderline mental retardation to average intelligence. With each administration, there was a strikingly significant split between his VIQ and PIQ.

In addition to administering the Wechsler Abbreviated Scale of Intelligence to Vidal in 2003, the defense expert, psychologist Eugene Couture, also administered the Peabody Picture Vocabulary Test, which is designed to assess the respondent’s ability to understand spoken language. As Vidal’s first language was Spanish, the Peabody was given in both English and Spanish, with Vidal scoring in the lowest percentile on both versions (as he had on prior administrations in 1980 and 1989).

According to family members, it was clear early on that Vidal was “not very smart.” His older sister noted his ability to read and write was not the same as his peers and that, even with help, he was unable to understand and complete homework assignments. As early as kindergarten, Vidal’s academic records identified him as having language problems. He was held back in the 4th grade, and while his communication skills had improved somewhat by the 9th grade, Vidal was never completely fluent in Spanish or English (he was never able to read or write anything beyond the simplest of words) and had difficulty understanding both languages. Throughout his school years, Vidal took approximately seven achievement tests, never performing at grade level (with the exception of scoring at the 12th-grade level on a letter identification subtest when in 8th grade) and never showing improvement between administrations. Several individualized educational plans were constructed (and unsuccessfully implemented) for Vidal and he received the support of special education services or a resource specialist throughout his education. While he reached the 12th grade, Vidal did not graduate and never functioned beyond a 2nd- or 3rd-grade level academically.

To address the second prong of mental retardation, “deficits in adaptive functioning,” Couture administered the Vineland Adaptive Behavior Scales, using Vidal’s sisters and ex-wife as informants. Vidal’s scores were below 70 on “daily living,” “communication,” and “social” across informants, while Vidal rated himself as below 70 on only two of the three subscales. In addition to standardized test results, lay witnesses described Vidal’s historical difficulties with routine tasks and with remembering chores and household rules. Thirty-two years old at the time of Jones’ murder, Vidal never lived independently, only leaving his mother’s home when he married. The father of several children, Vidal was described as a loving father who occasionally provided his children with a degree of care. Over the years, Vidal had worked as a seasonal field laborer.

After hearing all the evidence, in mid-March 2004, the Superior Court judge ruled that Vidal had met his burden of proof. The judge reasoned that Vidal’s VIQ (combined with clear deficits in adaptive functioning) was sufficient to establish a severe lack of verbal ability that went to the issues of “premeditation, deliberation, appreciation of concepts of wrongful conduct, ability to think and weigh reasons for and not for doing things and logic [and] foresight,” as proscribed by Atkins. A finding that Vidal was, in fact, mentally retarded was issued, thereby blocking the prosecution from seeking the death penalty.

The prosecution appealed the decision in the 5th District Court of Appeals on several grounds. Most relevant to this discussion was the People’s contention that the trial court “exceeded its jurisdiction” by basing its decision on the defendant’s VIQ score—rather then the FSIQ score—combined with adaptive behavior scores. The People argued that Vidal’s behavior in the instant offense calls into question the nature and degree of any manifest adaptive deficits and that while his VIQ had been consistently low, his PIQ and FSIQ argued against mental retardation. In May 2005, the lower court’s ruling was reversed when, in a split decision, the Appeals Court held that the FSIQ is (or should be) the primary determinant of intellectual functioning and mental retardation.

Intellectual Error

Since 1976, when the death penalty was reinstated, approximately 44 persons with mental retardation have been executed, with others pending (Keyes, Edwards, & Perske, 2002). In Virginia, a mentally retarded man sat on death row for 10 years before being exonerated by DNA evidence (Elgie, 2001). In Texas, a man is awaiting execution whose IQ scores (on three different administrations), as entered into evidence, were 65, 68, and 74 (Clark v. Dretke, 2004). Before the U.S. Supreme Court decided Atkins in 2002, 18 states and the federal government had existing laws that banned the execution of persons identified as mentally retarded. Of those 19 jurisdictions, nine specified a FSIQ score of 70 or below (on a standardized assessment procedure) as the cut-off for classification.

However, when the Supreme Court published its opinion in Atkins, it did not operationally define, delimit, or quantify “subaverage general intellectual functioning” or “deficits in adaptive functioning.” The Court intentionally did not provide a specific cut-off score for mental retardation or identify a particular measure (or measures) to be employed in that determination. The Court’s intention was that the best measure of intellectual functioning remains a matter of fact to be resolved on the trial court level, based on the evidence unique to each given case.

Despite this, of the eight states that passed new legislation to be in compliance with Atkins, two opted to institute a cut-off FSIQ of 70 and one, a FSIQ of 75. Like Atkins, the remaining states’ statutes had no fixed IQ score, thereby allowing trial courts greater flexibility in determining the degree of weight given to different categories of evidence. In those states, which include California, the trier of fact is bound to treat each defendant individually when determining whether the death penalty is an appropriate sentencing option.

Given this, on April 2007, the California Supreme Court unanimously overturned the Fifth District Court of Appeals ruling in Vidal. In writing the opinion, Justice Werdegar noted that the District Court erred in presuming that the best measure of intellectual functioning is a matter of law when in actuality, it is a factual question to be determined or decided in each case by the trier of fact. In turn, the Supreme Court concluded that the trial court judge did not exceed his authority or use an incorrect standard when finding Vidal was mentally retarded. In other words, although Vidal’s FSIQ scores were generally within the standard average range of intellectual functioning, as a matter of law that fact alone does not preclude a finding of mental retardation. Because Atkins does not incorporate the set requirement of a specific test score, the Supreme Court did not find error in the trial court giving greater weight to one piece of evidence (Vidal’s VIQ) over another (his FSIQ), even when the evidence comes from the same source or test.

Between Black and White

There are issues in the domain of forensic psychology where clinical definitions are not a clean match to legal definitions, nor do they directly inform the factual question at hand. The definition and determination of mental retardation appears to be one such issue. In terms of clinical diagnosis, the purported purpose of which is to direct treatment interventions, the APA has established three criteria for a diagnosis of mental retardation: “significantly subaverage intellectual functioning”; concurrent “deficits or impairments in adaptive functioning”; and onset of these indicators before age 18 (APA, 2000).

To be diagnosed with “mild mental retardation,” the APA requires an approximate IQ score of 70 or below (on an individually administered test). The more impaired subcategories of mental retardation (i.e., moderate, profound, and severe) do not have a set range of scores, but allows for a “give-or-take” of 5 to 10 points. The APA’s adaptive functioning criterion is defined as “the person’s effectiveness in meeting the standards expected for his or her age by his or her cultural group.” To meet this criteria, the individual must demonstrate deficits or impairments in at least two areas specified by the APA. These include communication, social/interpersonal skills, self-care, health, safety, home living, use of community resources, self-direction, functional academic skills, work, and leisure.

The Social Security Administration (SSA) uses comparatively flexible eligibility requirements (in terms of qualifying criteria, domains, cut-off scores, and age) when classifying individuals as mentally retarded for the purpose of assigning financial benefits (SSA, 2003). The AAIDD, which influences the definition of mental retardation used by other agencies and service providers (such as the Department of Education), is expected to issue a new definition of mental retardation or intellectual disability in 2009 or 2010. As with the APA, the AAIDD’s existing definition requires “subaverage intellectual functioning,” “deficits or impairments in adaptive functioning,” and onset/manifestation by the age of 18 years (this is to rule out brain/neurological damage in a previously non-retarded adult) (AAMR, 2002). In order to account for measurement error, the AAIDD’s ceiling for “subaverage intellectual functioning” is an IQ score of 75, or a score representing at least two standard deviations above the mean on a standardized test.

The AAIDD currently defines adaptive behavior as “the collection of conceptual, social, and practical skills that people have learned so they can function in their everyday lives.” According to the AAIDD, significant limitations in adaptive functioning “impact a persons’ daily life and affect the [individual’s] ability to respond to a particular situation or to the environment.” When standardized tests are used to assess “deficits or impairments in adaptive functioning,” the AAIDD requires a score of at least two standard deviations below the mean on a measure of one or more of the three domains. While adaptive functioning can be assessed by standardized measures, it is often determined by subjective impressions, reported observations, integrated documentation, and/or clinical assessment.

How mental retardation is defined has bearing on several legal issues, such as determining juvenile fitness and adult competence, proving certain elements of murder, and whether the death penalty is an appropriate sentence in a given case. In the context of capital murder by defendants who are mentally retarded, the Atkins Court found that, “Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.”

Redefining Mental Retardation

In 2005, the California Supreme Court chose not to adopt an IQ score of 70 as the upper limit for making a “prima facie” showing of mental retardation (Hawthorne, 2005). Rather than base the finding on a single test score (measuring either intellectual or adaptive functioning), the Court concluded that making a finding of mental retardation requires “an assessment of the individual’s overall capacity, based on a consideration of all the relevant evidence.” In 2007, with Vidal, the Court went further, holding that even with a FSIQ score that would preclude clinical diagnosis, a defendant may be found mentally retarded based on subscores of the same test (provided the other two prongs of mental retardation have been proved).

Many states (and expert witnesses) have held to a definitive IQ score cut-off despite the clear intention of Atkins. Using a cut-off score obviously makes the decision of whether a defendant is mentally retarded a simple one; it is not, however, sufficient to make the decision one that is definitively accurate or just. Our understanding of intelligence is constantly evolving, with no universally accepted definition of the construct itself. Likewise, our understanding of how to best measure “intelligence” is evolving. While re-norming standardized intelligence tests may help offset the Flynn Effect, defendants tested at either end are at risk of being misdiagnosed, especially if experts do not determine exactly when each test was administered in the given test’s life-cycle.

To ensure that neither proceedings nor the punishment of a capital crime of those with mental retardation is cruel, unusual, or excessive, the trier of fact must be given more information than is necessary for making a clinical diagnosis. As was the case for Vidal, a defendant may have a FSIQ that precludes a diagnosis of mental retardation, but may manifest significant deficits in components of intelligence that have great legal relevance, such as in the ability to process information. Another defendant may have IQ scores that indicate retardation, yet possess the capacity to create intent and to kill with premeditation by “lying in wait.” As noted in Atkins, “there are many persons who have been diagnosed as mentally retarded who know the difference between right and wrong and are competent to stand trial, but, by definition, they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others’ reactions. Their deficiencies do not warrant an exemption from criminal sanctions, but diminish their personal culpability.”

A thorough forensic evaluation of intellectual and adaptive functioning must address each and every aspect of intelligence as provided in the legal definition of mental retardation. For example, beyond the initial question of whether the defendant knows right from wrong in both a social and cultural context, comes the matter of how complex a moral question the defendant can answer. Beyond that, how capable is the defendant of controlling his or her impulses, and in the context of what degree and nature of internal and external pressures? Ultimately, the expert witness must provide information for the trier of fact to use in deciding whether the defendant meets the legal definition of mental retardation, a definition that determines moral culpability.

References

American Association on Mental Retardation (AAMR). (2002). Mental retardation: Definition, classification, and systems of supports (10th ed.) Annapolis, MD: Author.

American Psychiatric Association (APA). (2000). Diagnostic and statistical manual of mental disorders, 4th edition – test revision (DSM IV-TR). Arlington, VA: Author.

Atkins v. Virginia, 536 U.S. 304 (2002).

Clark v. Dretke, No. 5:04-cv-00124-DF (2004).

Elgie T. (2001, July 10). The death penalty in Virginia: Attempts at legislative reform. The Richmond Journal of Law and the Public Interest. Retrieved June 18, 2007, from http://law.richmond.edu/rjolpi/Issues_Archived/2001_Spring_Issue/Elgie.html

Keyes, D., Edwards, W., & Perske, R. (2002). People with mental retardation are dying—legally: At least 44 have been executed. Mental Retardation, 3, 243–244.

Penry I (Penry v. Lynaugh, 492 U.S. 302 (1989).

Penry II (Penry v. Johnson, 532 U.S. 782 (2001) (Penry II).

People v. Hawthorne, 35 Cal.4th 40 (2005).

People v. Superior Court (Vidal), 07 S.O.S. 1781.

People v. Superior Court (Vidal), Ct.App. 5 F045226 (2004).

People v. Vidal, Tulare County Super. Ct. No. 69782-C.

Social Security Administration (SSA), Office of Disability Programs. (2003). Disability evaluation under social security. [SSA Pub. No. 64-039]. Washington, DC: U.S. Government Printing Office.

West. (2007). California penal code section 1376. Retreived June 18, 2007, from http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=01001-02000&file=1367-1376

About the Author

Bruce Gross, PhD, JD, MBA, is a Fellow of the American College of Forensic Examiners and is an Executive Advisory Board member of the American Board of Forensic Examiners. Dr. Gross is also a Diplomate of the American Board of Forensic Examiners and the American Board Psychological Specialties. He has been an ACFEI member since 1996 and is also a Diplomate of the American Psychotherapy Association.

In two separate but related decisions, in 1989 and 2001, the United States Supreme Court held that mental retardation is a mitigating factor to be considered by capital juries during sentencing, that the class of individuals diagnosed as “mentally retarded” is not homogeneous in terms of their capacity for legal and moral culpability, and that capital punishment of mentally retarded persons is not a universal or per se violation of the Eighth Amendment’s protection against “cruel and unusual punishment” (Penry I, 1989; Penry II, 2001). One year later, in deciding the 2002 case of Atkins v. Virginia, the Court noted the shift in social thought and practice regarding the execution of mentally retarded defendants, reversed its position in Penry, and made the mentally retarded a class exempt from the death penalty. In April 2007, a ruling by the California Supreme Court gave trial court judges broader discretion in determining if a defendant is mentally retarded and, therefore, exempt from the death penalty. Not only in California, but throughout the United States, this ruling has the potential to affect those persons on death row and currently facing capital charges whose intellectual functioning borders on the classification of mentally retarded.

Fall 2007 THE FORENSIC EXAMINER

By Bruce Gross, PhD, JD, MBA, FACFEI, DABFE, DABPS, DABFM, DAPA

The American College of Forensic Examiners

Antidepressant Withdrawal Syndrome and DUI Evaluation

Antidepressant Withdrawal Syndrome and DUI Evaluation

By Henry Spiller, MS, DABAT, FACFEI, DABFE, and Tama S. Sawyer, PharmD, CSPI

Key Words: withdrawal syndrome, DUI, selective serotonin reuptake inhibitor

Abstract

Millions of Americans annually receive selective serotonin reuptake inhibitor antidepressants and dual-action antidepressants for their symptoms of depression. These patients are at risk for a well-documented withdrawal syndrome if they abruptly stop their medication. This withdrawal syndrome may produce significant effects that may impair a person’s ability to drive, putting at risk both the driver and others on the road. In a situation of the antidepressant withdrawal syndrome, the impairment is due to the absence of drugs in the patient, producing the paradox of a potentially impaired driver because of an absence of the influence of a drug. This article reviews the antidepressant withdrawal syndrome and describes the effects on cognition, memory, vision, and motor performance and reviews how these clinical effects might be misinterpreted using standardized field sobriety tests suggesting the patient is intoxicated in the absence of other drugs or alcohol.

THE FORENSIC EXAMINER Fall 2007

This article is approved by the following for continuing education credit:

(ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates.

(CFC) The American College of Forensic Examiners International provides this continuing education credit for Certified Forensic Consultants.

The American College of Forensic Examiners International is accredited by the Accreditation Council for Continuing Medical Education to provide continuing medical education for physicians. This activity has been planned and implemented in accordance with the Essential Areas and Policies of the Accreditation Council for Continuing Medical Education (ACCME). The American College of Forensic Examiners International designates this educational activity for a maximum of 1 hour AMA PRA Category 1 Credits™.. Physicians should only claim credit commensurate with the extent of their participation in the activity.

Introduction

Worldwide use of antidepressants has increased dramatically in the past decade (Berndt, Bhattacharjya, Mishol, Arcelus, & Lasky, 2002; Ciuna et al., 2004; Helgason, Tomasson, & Zoega, 2004; Hemels, Koren, & Einarson, 2002). Use of antidepressants may range from 26 to 72 defined daily doses per 1000 people, depending on the country (Ciuna et al.; Helgason et al.; Hemels et al.). The estimated range of Americans using antidepressants is from 7 to 18 million patients annually. Of the various classes of antidepressants available, the Selective Serotonin Reuptake Inhibitors (SSRI) and Dual Action Antidepressants (DAA), involving serotonin and norepinephrine reuptake inhibition, make up more than 75% of the prescriptions filled for antidepressants (Berndt et al.; Hemels et al.). Additionally, use of SSRIs and DAAs has increased more than 600% in the last 10 years (Ciuna et al.). While the drugs in these two classes have proven to be generally safe and effective, studies have documented a problem with the effects of withdrawal (Stahl et al., 1997).

Though symptoms from withdrawal are diverse, all include effects on cognition (impaired concentration and/or confusion) and motor performance (impaired coordination, loss of balance). (See Table 2 for a complete list of the clinical effects reported with withdrawal syndrome associated with the SSRI and DAA drugs.) These withdrawal effects may put patients at risk of impaired driving in the absence of other drugs or alcohol. While this is a potentially serious problem for both the patient/driver and others on the road, it has not been previously explored in the literature. This article describes the withdrawal syndrome associated with the SSRI and DAA drugs including clinical effects, with a focus on the potential effects these drugs may have on driving. Additionally, this article includes a discussion on the impact antidepressant withdrawal syndrome might have on field evaluation of a driver with tests such as the standard field sobriety test.
Antidepressant Withdrawal syndrome

Several groups of antidepressants, including the tricyclic antidepressants, the tetracyclic antidepressants, the SSRIs, the DAAs, and newer antidepressants such as mirtazapine (Remeron), may produce a withdrawal syndrome (Benazzi, 1998a; Coupland, Bell, & Potokar, 1996; Dilsaver, Kronfol, Sackellares, & Greden, 1983; Hindmarch, Kimber, & Cockle, 2000; Rosenbaum, Fava, Hoog, Ascroft, & Krebs, 1998). However, the withdrawal syndrome produced by the SSRIs and the DAAs is clinically different from that produced by the classic tricyclic antidepressants (Lejoyeux, Ades, Mourad, Solomon, & Dilsaver, 1996; Stahl et al., 1997). The withdrawal syndrome from the tricyclic and tetracyclic antidepressants is primarily a cholinergic syndrome with symptoms such as nausea, vomiting, anorexia, diarrhea, rhinorrhea (runny nose), diaphoresis (excessive sweating), myalgias (muscle pain), increased anxiety, agitation, and sleep disturbances (Dilsaver, 1994; Dilsaver et al.). In contrast, the withdrawal syndrome from the SSRIs and DAAs is primarily a serotonergic syndrome, with symptoms such as dizziness, lethargy, impaired concentration, electric-like shock sensations, impaired coordination, blurred vision, and sleep disturbances (see Table 2). This article discusses the impact of the serotonin-related antidepressants. The SSRI and DAA drugs that may produce a withdrawal syndrome are listed in Table 1. The syndrome may be seen in a substantial minority of patients taking these drugs—up to 25% (Coupland et al.; Michelson et al., 2000; Rosenbaum et al., 1998).

A brief understanding of the mechanism(s) of action of these drugs will improve the understanding of the withdrawal syndrome. The selective serotonin reuptake inhibitor class includes 6 drugs that are widely available. (See Table 1 for a list of drugs in this class with associated pharmacokinetic information.) These drugs inhibit the human serotonin transporter, inhibiting re-uptake of serotonin into presynaptic neurons (Schmidt, Fuller, & Wond, 1988). This allows for persistence of serotonin in the neuronal synapse and increased serotonergic neuron transmission. In effect, it increases activity on the pathways of the brain that use serotonin as the neurotransmitter. Chronic use has been shown to cause reduced serotonin transporter density, maintenance of normal cell-firing rates, and increased activation of post-synaptic firing.

The SSRIs produce little or no clinically significant activity on dopamine, norepinephrine, histamine, or acetylcholine receptors, or re-uptake transporters. The DAAs inhibit both the human serotonin transporter and the human norepinephrine transporter, inhibiting re-uptake of both serotonin and norepinephrine. The end result of the actions of both these classes of drugs is increased nerve transmission in select areas of the brain because of prolonged duration of neurotransmitters in the synapse. The sudden withdrawal of these drugs produces a sudden decrease in serotonin transmission due to reduced persistence of the neurotransmitter in the synaptic cleft (Zajecka, Tracey, & Mitchell, 1997). In effect, it produces a reduction of activity in some areas of the brain controlled by serotonin in the case of SSRIs and by serotonin and norepinephrine in the case of the DAAs.

It is this sudden decrease in activity that is responsible for the effects seen in these patients. If the decrease is of sufficient magnitude, an antidepressant withdrawal syndrome will occur. The dosage range of these drugs varies, with as much as a five-fold difference in some of the drugs between the lower and upper range of the therapeutic dose. (See table 1.) Any decrease that significantly effects serotonin transmission may produce a withdrawal syndrome. The withdrawal syndrome is transitory but may persist for days to weeks as the brain adjusts to new levels of activity on these neuronal pathways. Additionally, the syndrome may be reversed by restarting the antidepressant therapy. The true incidence of the withdrawal syndrome is unclear, with reports suggesting that 3%–30% of patients experience some form of the syndrome (Coupland et al., 1996; Oehrberg et al., 1995; Stahl et al., 1997).

The most frequently reported symptoms from the serotonin antidepressant withdrawal syndrome are dizziness, altered balance, lethargy, parathesias (numbness, tingling feeling, electric shock-like sensations), nausea, behavioral changes, and sleep disturbances. The clinical effects that can occur with the antidepressant withdrawal syndrome are diverse, and a broader list is provided in Table 2. It should be noted that the syndrome is varied from patient to patient—from mild to severe—and not all symptoms will be seen in every patient.

Criteria for diagnosis of antidepressant withdrawal syndrome vary, but generally include sudden discontinuance or reduction of dosage of an SSRI or DAA after a period of at least 1 month of use, two or more symptoms from Table 2, and symptoms not triggered by a general medical condition or other recognized cause (Black, Shea, Dursun, & Kutcher, 2000; Ditto, 2003). The onset of symptoms may be interpreted as a return of psychiatric symptoms (Benazzi, 1998b). Additionally, it may be interpreted by the patient as the onset of a flu-like syndrome (nausea, fatigue/lethargy, dizziness) along with return of depression (behavioral changes and sleep disturbances). The symptoms may be sufficiently severe to interrupt activities of daily living, such as going to work or driving a car, and patients should be warned about the dangers of operating a motor vehicle if they begin experiencing moderate to severe withdrawal symptoms. In some cases, the symptoms may be severe enough for the patients to recognize they should not drive (Campagne, 2005). However, in other cases, the patients may not recognize the degree of impairment and attempt to continue with their daily lives including commitments to work, school, or other outside commitments.

Patients may have an interruption in their medication for a number of reasons. They might miss one or several days of therapy due to non-compliance (“drug holiday”) (Hylan, Dunn, Tepner, & Meurgey, 1998) or there may be an interruption in the patients’ medication supply due to travel, lack of access to a pharmacy, or inability to pay (Campagne, 2005). In some cases, the patient will suddenly stop taking the medication due to perceived problems with the side effects of the medication itself (Leiter, Nierenberg, Sanders, & Stern, 1995).

Symptoms of the SSRI and DDA withdrawal syndrome may occur from as early as 12 hours after a missed dose and up to 3 weeks after discontinuance, although the average time of onset of symptoms is 1 to 3 days (Campagne, 2005; Zajecka et al., 1997). One factor impacting the onset of symptoms is the half-life of the drug involved, which can vary significantly depending on the drug involved (Michelson et al., 2000) (See Table 1).

Withdrawal Syndrome and Driving

Generally speaking, impaired driving (driving while intoxicated) is considered secondary to the effects of drugs or alcohol while these substances are in the patient and producing a direct effect on cognition, attention, motor control, and reaction time. However, in the situation of the antidepressant withdrawal syndrome, the impairment is due to the absence of drugs in the patient. This produces the paradox of a potentially impaired driver that is not under the influence of any drugs or alcohol. While there may be significant impairment, the term driving under the influence may be an inappropriate term for these cases.

There are a number of symptoms of the withdrawal syndrome that could potentially cause a patient to operate a motor vehicle in a manner that might be interpreted as operating under the influence of alcohol or drugs. These symptoms include visual disturbances, dizziness/vertigo, impaired coordination, tremors, confusion, impaired concentration, and jerking eye movements that cause difficulty with tracking and memory impairment. These clinical effects might produce an altered driving pattern, including weaving, erratic speed and erratic lane changes, which might be interpreted as driving while intoxicated. Additionally, if the vehicle were stopped for possible impaired driving and the patient evaluated, there are a number of symptoms that might be interpreted as the patient being under the influence of drugs or alcohol. These symptoms include confusion, agitated behavior, distracted affect if the patient is experiencing repeated sensations of electric shocks, an unsteady gait, and inattention to questions because of inability to hear on account of tinnitus.

Withdrawal Syndrome and the Standard Field Sobriety Test

When a police officer stops a driver for suspicion of impaired driving, the most common procedure is to have the driver perform a field sobriety test. The National Highway Traffic and Safety Administration (NHTSA) has validated three tests that have become generally recognized as the Standardized Field Sobriety Test (Tharp, Burns, & Moskowitz, 1981). These three tests are the Walk and Turn (WAT), Horizontal Gaze Nystagmus (HGN), and One Leg Stand (OLS). However, other tests may be performed at the discretion of the police officer or local jurisdiction such as asking the driver to count backwards from a certain number and to stop at a certain number (e.g. count down from 55 to 18) or to recite the alphabet beginning at a particular letter and ending at a particular letter (e.g., beginning at F and ending at R). These latter tests have not been validated by NHTSA.

In the course of administering the WAT, the subject is given oral instructions to take nine steps heel-to-toe along a straight line. After taking nine steps the subject must execute a one-foot turn and return in the same manner in the opposite direction. There are 7 indicators of impairment for which the police officer is instructed to watch to indicate successful completion or failure of the test: 1) subject cannot maintain balance while listening to instructions, 2) subject begins test before instructions are complete, 3) subject stops to regain balance while walking, 4) subject does not touch heel-to-toe, 5) subject uses arms to maintain balance, 6) subject loses balance during turn, and 7) subject takes incorrect number of steps. In a patient experiencing antidepressant withdrawal syndrome, there are a number of symptoms that would cause them to fail the WAT test, even in the absence of intoxicants. The most important of these are gait instability, dizziness/vertigo, lack of coordination, and loss of balance. Additionally, such symptoms as confusion, impaired concentration, and short-term memory impairment might cause the patient to fail by beginning too soon, failing to take the correct number of steps, or failing to walk heel-to-toe on the return walk.

In the course of administering the HGN, the subject is instructed to focus on an object 12 to 15 inches in front of his or her face as the object is moved horizontally to the left and right. The police officer is instructed to watch for smooth pursuit, nystagmus before onset of 45 degrees, distinct nystagmus at maximal deviation, and head movements and/or jerks. A patient experiencing antidepressant withdrawal syndrome might fail the HGN because of misinterpretation of already existing jerking eye movements and blurred vision.

In the course of administering the OLS, the subject is instructed to stand with one foot held approximately 6 inches off the ground and to count by thousands (e.g. one thousand one, one thousand two, etc.) until told to put the foot down. The subject is timed for 30 seconds. There are 4 indicators of impairment that the police officer is instructed to watch for to indicate successful completion or failure of the test: 1) swaying while balancing; 2) using arms to balance; 3) hopping to maintain balance; and 4) putting the raised foot down. There are numerous symptoms that could cause a patient experiencing antidepressant withdrawal syndrome to fail the OLS test, even in the absence of intoxicants. The most important of these are dizziness/vertigo, lack of coordination, and loss of balance.

Finally, the patient may be agitated and experiencing significant anxiety. The patient’s behavior may initially be interpreted by the police officer as a refusal to obey commands during the initial evaluation or during one of the SFSTs. In either case, refusal may be interpreted as reason to suspect intoxication.

It should be noted that the primary role of field sobriety tests is to give the police officer a reasonably accurate tool to determine if intoxication might be suspected and if further verifiable documentation such as an alcohol breathalyzer test or blood alcohol test should be administered. The tests themselves should not be sufficient evidence of intoxication without clinical evidence such as a breathalyzer test or blood alcohol test. In the case of drug intoxication, field sobriety tests again are not sufficient evidence of intoxication without supporting evidence of a blood concentration of the suspected drug. Because of situations such as the antidepressant withdrawal syndrome, the field sobriety tests may provide misleading indications of intoxication when no intoxication has occurred.

Conclusion

Millions of Americans annually receive SSRIs and DAAs for their symptoms of depression. These patients are at risk for a well-documented withdrawal syndrome if they abruptly stop their medication. The antidepressant withdrawal syndrome may produce significant effects on cognition and motor performance. Further, these effects might be misinterpreted in the use of standardized field sobriety tests to suggest the patient is intoxicated in the absence of other drugs or alcohol.

References

Benazzi, F. (1998a). Mirtazapine withdrawal symptoms. Canadian Journal of Psychiatry, 43(5), 525.

Benazzi, F. (1998b). Sertraline discontinuation syndrome presenting with severe depression and compulsions. Biological Psychiatry, 43(12), 929–930.

Berndt, E. R., Bhattacharjya, A., Mishol, D. N., Arcelus, A., & Lasky, T. (2002). An analysis of the diffusion of new antidepressants: Variety, quality, and marketing efforts. Journal of Mental Health Policy and Economics, 5(1), 3–19.

Black, K., Shea, C., Dursun, S., & Kutcher, S. (2000). Selective serotonin reuptake inhibitor discontinuation syndrome: proposed diagnostic criteria. Journal of Psychiatry and Neuroscience, 25(3), 255–261.

Campagne, D. M. (2005). Venlafaxine and serious withdrawal symptoms: Warning to drivers. Medscape General Medicine, 7(3), 22.

Ciuna, A., Andretta, M., Corbari, L., Levi, D., Mirandola, M., Sorio, A., et al. (2004). Are we going to increase the use of antidepressants up to that of benzodiazepines? European Journal of Clinical Pharmacology, 60(9), 629–634.

Coupland, N. J., Bell, C. J., & Potokar, J. P. (1996). Serotonin reuptake inhibitor withdrawal. Journal of Clinical Psychopharmacology, 16(5), 356–62.

Dilsaver, S. C. (1994). Withdrawal phenomena associated with antidepressant and antipsychotic agents. Drug Safety, 10(2), 103–114.

Dilsaver, S. C., Kronfol, Z., Sackellares, J. C., & Greden, J. F. (1983). Antidepressant withdrawal syndromes: Evidence supporting the cholinergic overdrive hypothesis. Journal of Clinical Psychopharmacology, 3(3), 157–164.

Ditto, K .E. (2003). SSRI discontinuance syndrome: Awareness as an approach to prevention. Postgrad Medicine, 114(2), 79–84.

Helgason, T., Tomasson, H., & Zoega, T. (2004). Antidepressants and public health in Iceland. Time series analysis of national data. British Journal of Psychiatry, 184(2), 157–162.

Hemels, M. E., Koren, G., & Einarson, T. R. (2002). Increased use of antidepressants in Canada 1991–2000. Annals of Pharmacotherapy, 36(9), 1375–1379.

Hindmarch, I., Kimber, S., & Cockle, S. M. (2000). Abrupt and brief discontinuation of antidepressant treatment: Effects on cognitive function and psychomotor performance. International Clinical Psychopharmacology, 15(6), 305–318.

Hylan, T. R., Dunn, R. L., Tepner, R. G., & Meurgey, F. (1998). Gaps in antidepressant prescribing in primary care in the United Kingdom. International Clinical Psychopharmacology, 13(6), 235–243.

Leiter, F. L., Nierenberg, A. A., Sanders, K. M., & Stern, T. A. (1995). Discontinuation reactions following sertraline. Biological Psychiatry, 38(10), 694–695.

Lejoyeux, M., Ades, J., Mourad, I., Solomon, J., & Dilsaver, S. (1996). Antidepressant withdrawal syndrome. Recognition, prevention and management. CNS Drugs, 5(4), 278–292.

Michelson, D., Fava, M., Amsterdam, J., Apter, J., Londborg, P., Tamura, R., et al. (2000). Interruption of selective serotonin reuptake inhibitor treatment: Double-blind placebo-controlled trial. British Journal of Psychiatry, 176(4), 363–368.

Oehrberg, S., Christiansen, P. E., Behnke, K., Borup, A. L., Severin, B., Soegaard, J., et al. (1995). Paroxetine in the treatment of panic disorder. British Journal of Psychiatry, 167(3), 374–397.

Rosenbaum, J. F., Fava, M., Hoog, S. L., Ascroft, R. C., & Krebs, W. B. (1998). Selective serotonin reuptake inhibitor discontinuation syndrome: A randomized clinical trial. Biological Psychiatry, 44(2), 77–87.

Schmidt, M. J., Fuller, R. W., & Wond, D. T. (1988). Fluoxetine, a highly selective serotonin reuptake inhibitor: A review of preclinical studies. British Journal of Psychiatry, 153(3), 40–46.

Stahl, M. M. S., Lindquist, M., Pettersson, M., Edwards, I. R., Sanderson, J. H., Taylor, N. F. A., et al. (1997). Withdrawal reactions with selective serotonin re-uptake inhibitors as reported to the WHO system. European Journal of Clinical Pharmacology, 53(3–4), 163–169.

Tharp, V., Burns, M., & Moskowitz, H. (1981). Development and field test of psychophysical tests for DWI arrest. (DOT HS 805–864). Washington, DC: U.S. Department of Transportation, NHTSA.

Young, A., & Haddad, P. (2000). Discontinuation symptoms and psychotropic drugs. Lancet, 355(9210), 1184.

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Henry A. Spiller, MS, DABAT, DABFE, FACFEI, is board certified in Toxicology and the Director of a certified regional poison center, with more than 20 years clinical experience. He has authored more than 180 toxicology related publications, including peer-reviewed medical/scientific journals, comprehensive toxicology textbooks, and scientific abstracts. He has more than a decade of experience in training toxicologists and specialists in poison information and has directed, as principal investigator, more than 35 multi-center national studies in toxicology. He has made toxicology-related presentations at scientific meetings in North America, South America, and Europe and has presented evidence as an expert in numerous state and federal courts on toxicology related subjects.

Tama Sawyer, PharmD, is a Certified Specialist in Poison Information with more than 20 years clinical experience at a regional poison center.

Fall 2007 THE FORENSIC EXAMINER

THE FORENSIC EXAMINER Fall 2007

Table 1: SSRI and DAA Medications

Generic Drug Name Brand Name Drug Class Elimination Half-life Starting Dose Dosing Range

Escitalopram

Citalopram

Fluoxetine

Fluvoxamine

Paroxetine

Sertraline

Duloxetine

Venalfaxine

Lexapro

Celexa

Prozac

Luvox

Paxil

Zoloft

Cymbalta

Effexor

SSRI

SSRI

SSRI

SSRI

SSRI

SSRI

DAA

DAA

22–32 hours

33–37 hours

70 hours

17–23 hours

15–22 hours

24–27 hours

11–16 hours

5 hours

10mg

20mg

20mg

50mg

10mg

50mg

20mg

75mg

10–20mg

20–60mg

20–60mg

50–300mg

10–50mg

50–200mg

20–60mg

75–375mg

Cognitive Impairment Effects

• Agitation
• Anxiety
• Confusion
• Depersonalization/detachment
• Electric shock-like sensations
• Impaired concentration
• Irritability
• Short-term memory impairment

(Table complied from references: Black, Shea, Durson, & Kutcher, 2000; Campagne, 2005; Coupland, Bell, & Potokar, 1996; Leiter, Nierenberg, Sanders, & Stern, 1995; Michelson et al., 2000; Rosenbaum, Fava, Hoog, Ascroft, & Krebs, 1998; Stahl et al., 1997; Young & Haddad, 2000; Zajecka, Tracey, & Mitchell, 1997)

Table 2: Clinical Effects Reported with Antidepressant Withdrawal Syndrome

Motor Impairment Effects

• Blurred vision
• Dizziness/lightheaded/vertigo
• Gait instability
• Incoordination or impaired coordination
• Jerking eye movements
• Loss of balance
• Tremor
• Visual disturbances

Other Effects

• Diarrhea
• Chills
• Headache
• Insomnia
• Myalgia
• Nausea/vomiting
• Parathesias
• Sleep disturbances
• Suicide thoughts or behavior
• Sweating
• Tinnitus (ringing in the ears)
• Vivid dreams or nightmares

Fall 2007 THE FORENSIC EXAMINER

THE FORENSIC EXAMINER Fall 2007 - published by Dr. Robert OBlock