It’s certainly fair for a criminal defense lawyer to use anything at his disposal to help his client. Not just fair, in fact, but obligatory (within the bounds of the law, of course). But when the same can be accomplished without wreaking havoc on those who have enough problems to deal with, can’t we show just the tiniest bit of thought and sensitivity?
From Leslie Packer, PhD, at the TS+ Blog :
Brian Bowling has a news report in the Pittsburgh Tribune-Review about a legal defense strategy that concerns me. As background: a man pleaded guilty to possession, receipt and transportation of child pornography. When the defense presented a forensic psychologist to argue for leniency in sentencing, the psychologist told the court that the defendant became attracted to underage girls and collected child pornography because (in part) Tourette’s Syndrome and his isolated childhood derailed the development of normal relationships with women. Having created the mis-impression that Tourette’s Syndrome might contribute to pedophilia, the defense compounded the problem even more by lumping hoarding or obsessive-compulsive behaviors with Tourette’s Syndrome:
Hardy amassed thousands of images and videos of child pornography, videotaped neighborhood children playing and stole girls’ panties from homes he visited, according to court documents. In online chats with other child pornography collectors, Hardy said “he would most like to rape 8-year-old girls but would rape any girls from 2 to 15 years of age,” court records show.
[The forensic psychologist] said Tourette syndrome causes people to obsessively collect or “hoard” things. That helps explains the 60 hard drives and other digital media police found when they searched Hardy’s home, she said.
“He collected more pornography than anyone could ever look at,” she said.
Is it any wonder people may be fearful of revealing their TS diagnosis when a court is being told by a psychologist that Tourette’s Syndrome caused or contributed to compulsive hoarding of pornography or pedophilia?
Because people who suffer from Tourette’s Syndrome don’t have enough to deal with. No longer are they just social pariahs for the risk of their shouting out curses, but now they’re going to rape toddlers as well. Is there any room left on the island with the lepers?
Hearing the defense, AUSA Craig Haller comes up with this brainstorm in response:
If anything, the combination of Tourette syndrome and pedophilia makes Hardy more of a risk to society because it means he has less control over his impulses, Haller argued.
Haller must be referring to that lack of impulse control the Tourette’s Syndrome sufferers have over their desire to rape little girls. Except for the fact that this doesn’t exist, it’s a great argument to lock people with TS away forever.
The irony of this misuse of TS as a viable explanation for the defendant’s conduct is that a potential root could be the social isolation and stigma endured because the defendant suffered from TS, not because he had TS per se. Rather than explain the root cause accurately, the defense contributes to the misunderstanding of Tourette’s and the likelihood of further isolation and stigmatization by adding pedophilia to the list of really bad things one can expect from someone suffering from TS.
It’s sheer nonsense, and by no stretch of the imagination does Tourette’s cause someone to be a pedophile, but we all know how much we hate peds and how fearful we are of people who do weird stuff, like TS sufferers, so why not mash them all together and make life for people with TS as miserable as humanly possible.
No one, including Dr. Packer, argues against the use of whatever is available to serve the needs of a criminal defendant, whether in defense to the charge or sentence. But it doesn’t further the interests of criminal defendants to falsely and needlessly impugn people who already have to endure too much. Let’s not contribute to the stupidity of society and the suffering of those who did nothing to deserve it in the name of defending a client. We can make our point without doing harm to others, and those who suffer from Tourette’s Syndrome clearly don’t need to be further smeared because of careless and sloppy defense work.
Make the effort. Do no harm.
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Strangely, if you stood on your head and crossed your eyes, this almost sounds like a real scientific theory that started floating around a few years ago. Tourette’s syndrome is part of a whole collection of disorders, the boundaries of which are a bit fuzzy. Other symptoms are things like unnecessary coughing or sniffing, or facial twitches such as intense blinking.
Tourette’s is usually considered a motor problem, but some neuroscientists think that the mechanism that leads to Tourette’s tics can occur in other parts of the brain, where it leads to other uncontrolled behavior. If it occurs in the hunger control center, it leads to fat people; if it occurs in the sexual centers, it leads to nymphomaniacs or pedophiles or whatever. Maybe this is what the AUSA was thinking about.
There are two problems with using this theory in court. First, it is highly, highly speculative, and there’s no way to test for any of it. Second, the theory is only suggesting that Tourette’s and these other problems are the result of a common failure mode, probably in brain development, not that they are related. Even if a Tourette’s-like mechanism does cause obesity, people with Tourette’s are not especially fat. Or likely to be pedophiles. Even if the theory is correct, to make the argument the AUSA did is like seeing someone with a painfully swollen lower arm, diagnosing it as a broken bone, and therefore concluding that their leg must be painfully swollen too because it also has a bone in it.
When it comes to something about which I know little, like TS, I tend to defer to the substantive expertise of someone like Dr. Parker rather than try to gain Wikipedia-level knowledge. But the AUSA’s misbegotten argument was an effort to counter the defense’s expert, who opined that the defendant’s pedophilia was a product of his Tourette’s. I can’t blame the prosecutor for trying, given the nature of the defense claim.
Had the defense shown a little greater care in its presentation, there would have been neither opportunity nor need to inject TS with the pedophilia overlay.
Still, I’m a little taken aback by your attempt here to proffer a neurophychological basis for connecting TS to pedophilia, given that your neither a neuropsycholigist nor, as far as I’m aware, an expert in Tourette’s Syndrome. Unless there’s a medical degree in your background that I’m unaware of, why would you even attempt (albeit erroneously) to “explain” the TS as pedophile position?
Jeez, was the defense psychologist a student of Dr. Laura?
I’m not trying to explain or justify the TS as pedophilia position, but I am curious about how pseudoscience like this gets into people’s heads. Did the AUSA just pull the idea that impulse control problems are similar to TS out of thin air? Or did he, like me, hear about the theory in some popular science press piece and think it was usable science? You know the saying that history may not repeat it self but it does rhyme? Junk science often rhymes with real science — it uses similar words and is expressed in a similar form — and I think that makes it hard for people, judges and juries included, to tell which is which.
(Sorry this has turned into something of a thread jack — it didn’t start out that way when I started writing it — I tried to bring it back around a bit at the end.)
Great. How long before we have a bunch of states that set up Tourette’s Registries?
Hello, Scott, and thank you for addressing this issue here.
I am somewhat apoplectic that the psychologist’s statement ever got admitted. There is simply no direct causal relationship between Tourette’s and hoarding pornography or TS and pedophilia. The rate of these behaviors in people who have Tourette’s without any other disorders is no different than in the general population.
If the defendant had a dysfunctional childhood because he had TS and was mistreated or rejected, make that case, but don’t blame the criminal behavior on the TS. That makes as much sense to me as saying that if an adult had an untreated cleft lip as a child and was socially isolated and reared in a dysfunctional family, that the cleft lip caused pedophilia or pornography hoarding.
As you correctly pointed out, Scott, people living with TS face enough challenges on a daily basis. It has taken almost 30 years to start getting the public to have a more accurate understanding about what TS is and what it is not. This type of case just sets us all back in public perceptions.
On a broader level, I wish that defense attorneys would think twice about trying to use mental health diagnoses to mitigate responsibility or sentencing and be more selective in using that approach. Yes, I know that people with mental health problems are represented disproportionately in prisons, but it seems that every case I read these days, some defense attorney is trying to use a diagnosis to try to reduce sentencing, such as the increasing use of an Asperger’s defense for hackers. Don’t defense attorneys realize that they are turning people with mental health issues into second class citizens in the public’s mind by suggesting that they can’t control themselves? There has to be a more responsible way to advocate for clients than by potentially stigmatizing all people with a particular diagnosis.
It’s important to be careful when trying to “explain” a baseless position that you don’t appear to offer false explanations or rationalizations. Someone may read nonsensical explanations, think you know what you’re talking about and believe that you may have something. It’s a dangerous and problematic game to play, and could lead to doing further harm. Please don’t contribute to pointless harm because you’re “curious”.
I think the answer is that we focus on the problem at hand without taking into consideration the longer term problem to which we’re contributing. I don’t think CDLs mean to do so, but it just doesn’t make it on our radar.
Thank you for pointing out how this could have been handled without doing needless harm to people with TS, and how we need to be more aware of the impact of our connecting any and every mental illness with crime, as if there’s a causal connection. While there are no doubt times when there is, at least in part, a causal connection, but that we need to stop contributing to the problem by suggesting that inside every mentall ill individual is a dangerous criminal trying to get out.