Dueling experts: Farcical spectacle that should be abolished?

Dueling psychiatric experts are an appalling farce and "a travesty of the profession and the law," according to an op-ed in yesterday's Boston Globe.

The opinion piece comes in the wake of the high-profile sanity trial of Christian Karl Gerhartsreiter (GAYR'-hahrtz-ry-tur), a German con artist who used a string of fake identities (including "Clark Rockefeller") to establish himself in wealthy circles in New York, Boston and Los Angeles. Last month, a jury rejected the defense theory of insanity and convicted him in the kidnapping of his 7-year-old daughter. He was sentenced to four to five years in prison.

Psychiatrist Stephen Bergman (who writes fictional parodies of psychiatry under the pen name Samuel Shem) critiqued the various experts for, respectively:

• charging too much money (one expert got $10,000, which ain't a whole lot these days)
• giving opinions on TV ahead of the trial
• spending only 2.5 hours with Gerhartsreiter
• not having prior experience testifying in court

The prosecution's expert, psychiatrist James Chu, diagnosed narcissism and sociopathy. He testified that Gerhartsreiter exaggerated his symptoms and knew what he was doing was wrong.

Two defense experts, forensic psychologist Catherine T.J. Howe and forensic psychiatrist Keith Ablow, a Fox News commentator, both testified that Gerhartsreiter suffered from delusional disorder (grandiose type) and narcissistic personality disorder, and was insane when he fled to Baltimore with his daughter during a custody dispute.

Bergman saved most of his vitriol for the DSM diagnostic enterprise, which is so tainted by profiteering and bias that a "circus atmosphere" is almost inevitable when it is brought into court:

"The lucrative link between a diagnosis and a drug to treat it, when diagnosis itself is culture-bound and often subjective, pollutes the impartiality of the 'Diagnostic and Statistical Manual.' … If psychiatric diagnoses and treatments have an element of fuzziness, how could doctors paid by one side or the other not come up with a diagnosis wanted by their employer?"

His solution?

Do away with experts that are paid by either side. Instead, have a neutral panel whose opinions are binding.

Bergman makes some legitimate points, especially about how flaws in the system of psychiatric diagnosis impact forensic cases. (See my new article on this topic HERE.) And, some of his criticisms of these particular experts may be legitimate (although, ironically, he got their roles backwards*). Indeed, the defense appeal argues that the government's expert was unqualified and applied the wrong legal standard for criminal responsibility.

But, overall, Bergman misses the forest for the trees.

The adversarial system entitles each side to present its best case in court. To foreclose that option just because experts sometimes differ would be fundamentally unfair. After all, as a colleague of mine put it, disagreements are not unique to psychiatry: "Engineers routinely disagree in court over the cause of a collapsed bridge, just as chemists disagree in court over the nature of a substance."

And just because they disagree, that doesn't mean that the experts are dishonest or lack integrity, as Bergman implies.

Unfortunately, high-profile insanity trials like this one skew the perceptions of the public and pundits like Bergman. In reality, insanity (which varies by jurisdiction but generally requires that the defendant did not know the difference between right and wrong) is rarely invoked as a defense, and is even more rarely successful. One eight-state study found that the defense was used in less than 1% of cases, and was successful only about one-fourth of the time. In 90% of the successful cases, the offender had been psychiatrically diagnosed prior to the crime.

Even when the defense is invoked, the "dueling experts" phenomenon is rarer than people think. The vast majority of insanity cases are resolved behind the scenes because the experts for both sides are in substantial agreement. In such cases, a trial -- with its attendant publicity -- never takes place. (See Before and After Hinckley: Evaluating Insanity Defense Reform.)

Another public misconception is that successful use of the insanity defense allows people to "get off" for the crime. In reality, most insanity acquittees are sent to locked state hospitals that look very much like prisons. They often spend more time locked up than if they had been convicted of their crime.

Bottom line: A defendant's right to the best possible defense should not be foreclosed just because of errors or hype in the rare celebrity case.

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* Bergman wrote: “For the prosecution: one psychiatrist, famous from Fox TV and psychiatric thrillers, was paid $10,000 for his expertise as part of an 'insanity defense,' testimony that was challenged by his offering opinions about Rockefeller on TV in advance of the trial; a prosecution psychologist agreed with his diagnosis, basically of a narcissistic character who was 'delusional' -- that is, insane. For the defense: a psychiatrist who had seen the accused once for 2 1/2 hours and had never before testified in court came up with the diagnosis of narcissism and sociopathy -- that is, not insane." In reality, the two experts he said were prosecution witnesses were actually defense-retained, and the expert he labeled as "for the defense" was actually the prosecution's.

Tuesday, July 14, 2009