Thursday, July 5, 2007

BEHAVIOR: Do YOU need a Psychological?

There is a book on the bookstore shelves entitled "The Lucifer Effect: Understanding How Good People Turn Evil". This book documents several experiments of human beings in different situations and while appearing to be normal and/or typical people, are nonetheless prone to nasty and sometimes sadistic behavior given a particular situation. For example, the book documents the notorious behavior of 50 male students in a 1971 Stanford University experiment where 25 were randomly selected to be guards and the others prisoners. With what began as a two week experiment ended in a week because of the sadistic behavior of the "guards" and the breaking of some of the "prisoners". We see current verification of this theory more recently in the Abu Ghraib prison controversy.

Does this theory apply to our Travis County Criminal Justice system? Maybe. But whatever the effects of this theory on our everyday existence in the Blackwell-Thurman Justice Center, I doubt they will be as noticeable as a pile of naked Iraqi prisoners. But consider this: Everyday in our courthouse, felony probationers are subjected to an extensive pre-sentence investigation where references are interviewed, mental health is examined, substance abuse factors are considered, family and employment history scrutinized, and a host of other factors that attempt to predict the success of a term of probation. Why is it then that no comparable tool exist to predict the success or failure of the key players who actually implement the system and hold most of the cards?

Let's take the prosecution. It is not uncommon for a new Assistant County Attorney candidate to arrive fresh out of law school or from another area of law. These folks usually take part in the standard interview process, have references checked, and proceed to be thrust into intake and the right of passage to the trial court. Is that enough? Shouldn't a closer examination of their pyschological makeup be warranted? Are we to trust the future of people's lives to someone who may have the same underlying issues as the people they judge? Worst yet, is it helpful to have a prosecutor with such built-in hostility that their personal relief is gained by taking it out on the accused? What if their hostility is a bit more personal and is directed towards the defense attorney? I do remember a prosecutor not too long ago that prosecuted family violence cases while being featured in the Metro Section as a sexual assault victim. It's hard to believe her experiences did not taint her judgment. Therefore, I propose this: I believe that all incoming and new prosecutors (less than two years is new) receive a psychological evaluation. This would not be the cursory competency exam, but a full-blown examination of all of the axis' that would somewhat predict both good and bad behavior. In this way, maybe some problems can be avoided or remedied. Of course I don't mention the District Attorney's Office because they can detect these problems earlier based on the previous experience of the applicant and another interview.

Defense attorneys don't get completely off the hook. With the occasional incoherent ranting which often pops up on the listserve, is't it a wonder that more of our colleagues aren't enrolled in anger management seminars or stress clinics? How does it affect their practice? Here the solution is not so easy. As private attorneys, we are under no mandate to seek psychological help except voluntarily or as required as part of a disciplinary order (after something has already happened). But what about that defense lawyer that has his own agenda, has a poor relationship with the prosecution (or judge), or, worst yet, doesn't like or care about his clients? Does it really help your clients to antagonize a judge? Are these examples not a subversion of purpose and an undermining of the representation? Is this something psychological that can be detected and predicted ahead of time? I don't know. A limited remedy might be if we passed a psycholocical review prior to being put on a court-appointment list. However, this is unlikely to be implemented and it raises certain legal issues which may be discussed at a later date. Nevertheless, in my opinion, defense attorneys are just as likely to commit bad acts given the particular situation and combination of factors. The acts are a bit more subtle, the effects can be devastating.

Judges to me are least likely to commit bad acts because they are directly accountable to the public. If, for example, they send a crippled old woman to TDC for several years, if this does not match the community norms they invite an opponent and possible defeat. If, on the other hand, they sentence within the community norms, they're job is generally secure (that's assuming the convicted picks the judge for punishment). Other, more subtle acts may be evidentiary rulings, but most defense and prosecution lawyers have a fairly good radar on this and adjust accordingly. And while the lawyers may accuse the judges of being a bit obsessive with their dockets, none of the behavior rises to the level of bad acts created by the circumstances unless it leads the lawyers to commit bad acts themselves.

In sum, the issue revolves around power and how we use it. Yes, the lawyers involved in plea bargaing and trials on both sides usually mean well. But they mean well in different worlds influenced by many different factors and experiences. Some experiences influence the reasoning, approaches, personalities, styles, and perspectives. However, some of these experiences and influences undermine the ethical underpinninings of our system. Is justice achieved? I hope it is. But more importantly, what happens when the accused bears the consequences when it's because of the bad acts of those who should know better?

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