WASHINGTON -- In the hands of Margaret Hagen, an anecdote can be a deadly weapon. Here is an example from her new book, "Whores of the Court":
"David Willard Phipps Jr., a Gulf War veteran, was convicted of first-degree murder . . . for killing his wife's lover, Michael Presson. Phipps did not deny killing Presson. . . . He claimed that he was unable to formulate the mens rea [intent] for first-degree murder because he was suffering from depression and post-traumatic stress disorder.
"Judge Julian Guinn of Tennessee apparently thought this claim did not hold water and instructed the jury, 'I charge you that post-traumatic stress disorder and major depression are not defenses to a criminal charge.' " The judge was reversed on appeal for being, according to Ms. Hagen, "unduly wary of expert psychological opinion."
The anecdote illustrates what a rare, free-thinking jurist Judge Guinn is. Too many American judges and juries have turned over the weighing of facts to psychological experts in matters from disability claims and child custody to murder.
Ms. Hagen would argue that except in extremely limited circumstances, the very notion of "expert psychological opinion" is a farce.
An experimental psychologist herself, she believes that her profession is qualified only to measure very limited things about the brain -- perception, language, learning, cognition and memory. The rest she dismisses as "witch doctoring."
Psychotherapists, she passionately argues, have no special wisdom about the human soul. They have no tools to see what ordinary people miss. There is no science to labeling people "depressed" or "phobic" or suffering from "post-traumatic stress disorder." It's all intuition, and while that doesn't make it worthless, it doesn't make it science, either.
You don't have to buy Ms. Hagen's blanket indictment of clinical psychology (I don't) to see that her case for removing psychologists from America's courtrooms is strong.
In 1990, George Franklin was convicted of a murder committed 20 years before (the conviction was later reversed). The only witnesses against him were his estranged daughter and her therapist.
The therapist explained that Eileen Franklin Lipsker suffered from post-traumatic stress disorder and had repressed the memory of seeing her father commit this crime against her friend for 20 years. She testified that children often "repress" memories of traumatic incidents for many years, recalling them to consciousness only many years later. At trial, Ms. Lipsker provided only details that had appeared in the press.
There is no science, Ms. Hagen says, underlying the concept of "recovered-memory syndrome." Yet, the word of one expert was sufficient to get a man convicted of murder. Is it wise to call such intuitions "expert testimony"?
Designed to exculpate
Psychologists and their lawyer partners have been quite creative in devising more and more diagnoses designed to exculpate. There is "urban psychosis," "battered-woman syndrome" and "black rage," to name just three.
Through an ever-expanding list of "diminished-capacity" defenses to criminal charges, and through the admission of expert testimony on matters like "flashbacks" and "brief psychotic disorder," the misuse of psychological testimony is undermining the foundation of our justice system -- the concept that people are responsible for their own conduct.
In the civil courts, things are, if anything, worse. Psychologists and other therapists routinely bolster the claims of those who say they cannot work because they are too mentally or emotionally damaged -- or so emotionally scarred from sexual harassment or being fired, or whatever, that they require millions in compensation.
In the psychologized American courts of today, they're often getting what they request. A woman in Washington state was awarded $900,000 after being fired from a job at a radio station. Her employer said she was abrasive and obnoxious. She said that she had informed her employer of her manic depression two months before the firing. The jury found that her dismissal constituted unlawful discrimination against the mentally handicapped.
Ms. Hagen's indictment of clinical psychology may be overwrought, but her advice that we repudiate psychological testimony is sound. When people seek to reform themselves, psychology has a valuable role to play, as it does in treating mental illness. But when it comes to judging lies or truth, intent accident, and good or evil in a court of law, ordinary common sense is a better guide than psychology.
Mona Charen is a syndicated columnist.
Pub Date: 4/02/97