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Trust in the midst of Death Penalty adjudication

Harold J. Bursztajn

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Dr. Harold J. Bursztajn, M.D.
Harvard Medical School

The “Houdini” of Alabama’s Death Row, Tommy Arthur, a convicted murder, 75 years of age, was just executed after escaping execution on the seven previous occasions that he was scheduled to die. Even now, questions linger about the about the fairness of the process. Death is never fair. Yet, the process by which an individual is judged to be deserving of the Death Penalty needs to be.

The notion that there is a fair process governing the decisions and process of judging any individual is mirrored in a recent US Supreme Court case. Thus Alabama will soon again be in the death penalty spotlight as the Supreme Court of the United States makes its decision regarding another convicted murderer currently on Death Row.

In McWilliams v. Dunn, the US Supreme Court heard an argument by the state of Alabama that raised the question of whether it is possible for one psychiatrist to be the single forensic mental health expert to assist both the prosecution and the defense in the same capital-sentencing case. The attorneys debated, and the justices discussed, the meaning of the Court’s decision in 1985 in Ake vs. Oklahoma.

That decision held that, in cases in which the defendant’s mental state is at issue, to be fair the state “must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense.” But can that psychiatrist be the same one as the one who assists the prosecution when the choice is between life and death and mistrust crescendos?

I have been retained to provide assistance during the penalty phase of capital litigation, in some cases by the prosecution and in others by the defense. Although I strive for honesty and objectivity in evaluation, I cannot imagine being able to provide expert assistance to both the prosecution and the defense in the same case. Nor do I know any colleagues who would claim to be able to do so.

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When forensic psychiatric experts testify, we are not, and should not appear to be, judges or juries deciding a case. Rather, we testify as to how a clinical and forensic understanding of an individual’s mental, emotional, or behavioral disorders and impairments may help to inform those who are tasked with deciding the case. When a psychiatrist is asked to assist both sides in the same case, the psychiatrist’s ostensibly unbiased opinion may inadvertently be elevated to the status of a finding of fact, thereby blurring the boundary between an expert’s function and that properly reserved for the judge or jury.

The same principle applies throughout the process of evaluation. What makes mental health evaluations especially challenging is the complexity involved in the assessment of mental impairment. Malingering, misattribution, and shame- or fear-motivated minimization of impairment need to be ruled out. The process of psychiatric evaluation involves conversation and exploration with the attorney and the defendant, neither of whom is likely to trust a psychiatrist who is seen to have dual loyalties.  Although the goals and methods of a forensic psychiatric examination are invariably different from those of treatment—a matter of striving for objectivity rather than relief of suffering—this magnification of mistrust is familiar to any clinician who, for example, has ever tried to treat each member of a divorcing couple individually, only to find soon enough that neither trusts the clinician.

In death penalty cases, where the stakes are life and death, mistrust is at its highest in our adversarial system of justice. It is paradoxical, yet in my experience often observed, that simply informing the defendant that one has been retained by the prosecution is as likely to increase trust, and with it the validity of the examination, as informing the defendant that one has been retained by their defense attorney. To the extent reducing mistrust in the fairness of the process is a social value, and matters especially to the objectivity and validity of forensic psychiatric examinations, appointing a single forensic mental health expert is especially inappropriate in death penalty evaluations.

The difficulties in seeking to assist both sides in the same case are as insurmountable during pretrial consultation as they are at trial. How can an attorney who wishes to protect the confidentiality of a forensic mental health consultation, not to mention that of his own legal strategy, trust an expert who is also assisting the opposing attorney? Without a confidential, interactive, ongoing conversation and exploration between attorney and expert as discovery unfolds, the expert cannot effectively help dispel the biases evoked by mental illness, in the aftermath of horrific acts such as to see the perpetrators as simply and invariably either “mad” or “bad.”

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What thus is at stake is the fundamental principle of fairness—to both prosecution and defense— in the application of the law during the capital-sentencing phase. Even when a single forensic psychiatric expert attempting to assist both sides strives in good faith for objectivity, that is no substitute for real objectivity. Authentic objectivity requires a fair process, especially when life and death are at stake and mistrust rules.

Harold J. Bursztajn, M.D., is Associate Professor of Psychiatry (Part-time) and Co-founder of the Program in Psychiatry and the Law at Harvard Medical School. He has testified as a forensic psychiatric expert in capital-sentencing litigation when retained either by prosecution or defense attorneys.

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Opinion | The enduring legacy of Margaret Thatcher

“In the winter of British discontent, Thatcher emerged to lead the minority Conservative Party into the majority.”

Will Sellers

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Margaret Thatcher was Britain's longest-serving prime minister. (WIKIMEDIA COMMONS)

Thirty years ago, this week, the longest-serving British prime minister of the 20th century resigned. Margaret Thatcher, having governed since 1979, saw her leadership challenged, but rather than continue to fight, she was gaslighted into believing she was losing her grip on her party and would lose her office in an embarrassing vote.

None of that was true.

In fact, the very men who rode to leadership positions on her coattails and hid behind her skirts during controversy allowed their greed for power to debase their loyalty to the Iron Lady. Dejected, she resigned and thus, quietly exited British politics.

Prior to Thatcher’s leadership, Britain was in decline and, by all economic measures, sliding into second rate status. Rather than control its financial destiny, the International Monetary Fund was needed to help the Empire shore up her accounts. Socialism dominated with anti-capitalist trade unions and nationalized industries weighing down any real economic growth.

But in the winter of British discontent, Thatcher emerged to lead the minority Conservative Party into the majority. For more than a decade thereafter, she was the face of the party, and even when she left the scene, the imprint of “Thatcherism” would remain a dominate political ideology.

Thatcher’s political program relied upon a simple appeal to the British sensibilities. She believed in limited government, liberty of the individual, and the rule of law. But rather than relying solely on rhetoric, she acted on her beliefs and ushered in a golden age that changed not only Britain, but the entire world. Indeed, the world she inherited in 1979 stood in stark contrast to the world in 1990. She caused the contrast.

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Unlike many political leaders who espouse high minded principles, she pursued hers with what some considered reckless abandon. Thatcher took significant steps to push back the suffocating hand of state control and return the economy to a true free market. Government intervention was replaced with individual responsibility and human action.

There are five significant events revealing what Thatcher believed by how she acted. And the impact of her actions had ramifications that still affect both British and international politics.

Thatcher organized her government to firmly oppose state-sponsored terrorism and declined to allow the cloak of diplomatic immunity to cover subversive activities. When the Libyan Embassy in London was used to harbor snipers to shoot protestors and ended up killing British policewoman Yvonne Fletcher, the prime minister terminated diplomatic relations and used special forces to clear the embassy and send the terrorists masquerading as diplomats packing.

She would similarly send a large contingent of Russians home when it was clear their embassy was a cover for supporting domestic terrorists and spying on military and industrial targets. These actions rankled some in the diplomatic community who wanted her to be more deferential, but by sending a message of British resolve, she earned the respect of the world community.

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Perhaps the one thing cementing Britain‘s return to power was the Falkland Island campaign. While it was only a small British outpost near Argentina, Thatcher recognized that the Argentine invasion was not simply a threat to the islanders but also a challenge to international British interests. Unwilling to concede anything, she ordered the unequivocal liberation of the islands and effectively threw down a marker that she would defend and protect British subjects and interests anywhere at any cost.

Accepting the Argentine invasion would have been the easy course, but while some in Britain were embarrassed at her saber-rattling and projection of military power, the vast majority saw her actions as patriotic and a reminder of the former greatness of the empire. After the Falkland’s victory, Thatcher’s popularity soared, and when a general election was called, she achieved a landslide victory establishing a conservative majority that lasted until 1997.

On the domestic front, Thatcher knew from the beginning of her administration that she had a dead reckoning with trade unionism, whose power had grown so strong and influential that strikes could paralyze the country. But rather than take them on directly, the wily strategist first worked to pass laws that prevented union corruption and inappropriate strikes.

Once those laws were in place, she realized that the first challenge would be with the coal miners’ union. At that time, coal miners in Britain were a larger part of a socialist network that had grown in influence because coal was so critical to energy and the economy. But a minority of the unions were not part of this network and Thatcher allied herself with them, stockpiling coal to outlast the socialists.

So, when the coal miners decided to strike, she was prepared. First with lawsuits that prevented sympathy strikes from other unions by exacting fines and then with resources to close unprofitable mines and wait until the unions were unable to hold out. The coal miners were the first step, but gradually she reduced the unions’ economic stranglehold and began to privatize state-owned industries, which made the British economy more dynamic and competitive.

With an established Church, the parameters for separation of church and state are not debated in Parliament. In fact, the prime minister was involved in approving ecclesiastical promotion. Unlike other politicians who rarely addressed religious issues directly, Thatcher had no such reticence. When she became alarmed at the liberal bent of the established Church, she found an opportunity to explain to the professional clergy exactly how she viewed their role in society.

Addressing the General Assembly of Scotland, she boldly stated, “Christianity is about spiritual redemption, not social reform.” She chastised church leaders for failing to appreciate capitalism and the spiritual benefits it provided. It is hard to imagine a political leader who would have the intestinal fortitude to attend a denominational gathering, articulate a theology and take ministers to task for in essence failing in their mission.

Her speech, known derisively as “The Epistle to the Caledonians” is readily available on the internet. Some Sunday when virtual church is off, watch Thatcher explain her version of Christianity and see her sense of faith boldly defended and publicly exhibited.

Perhaps the one thing that both defined Thatcher and also led to her resignation was her idea of Britain’s place in the European community. Her view of Europe was with an eye toward free trade and removing regulations and restrictions on the free flow of goods and services. She saw Europe not as a melting pot where states and people lose their currency and cultural identity, but, rather, as a mosaic where nations and people maintained their unique culture within a framework of collaboration centered on trade.

As the idea of a united Europe moved toward a common currency, democratic socialism and a heightened regulatory environment, Thatcher stood her ground and refused to participate. Her speech to the College of Europe at Bruges explained succinctly her concerns and her vision of developing a strong capitalist Europe. Like her speech to the Church of Scotland, this speech, too, is worth a listen as it is prescient considering the current status of Europe, Brexit and NATO.

Lady Thatcher’s political demise was ushered in by disloyal cabinet members who were willing to subjugate British hegemony to an amalgamated Europe. Nothing they would say or do could detract from her legacy. In her retirement, as she traveled to the former Warsaw Pact countries, throngs of people venerated her as the force that helped liberate them from Soviet domination.

If Thatcher was not honored in her own country, the voices of the children freed from totalitarianism offered honor enough to the Iron Lady who held to her principles, saved her country from irrelevance, and ushered in a new world order based on liberty of the individual and the rule of law.

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Opinion | Giving thanks and staying safe

“As we’ve learned to adjust our daily routines and activities throughout the course of this pandemic, we know this Thanksgiving will not look like those of the past.”

Martha Roby

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(APR GRAPHIC)

Thanksgiving is a special holiday because it provides us an entire day each year to pause and give thanks for the many blessings we have received. Particularly amid a global pandemic, the stress and craziness of life often make it easy to lose sight of just how much we have to be thankful for.

Although this holiday season will look different for us all due to the current health pandemic, we must remember the countless ways in which we are blessed.

Whether you are gathering with loved ones or remaining in the comfort of your own home, I hope we all take time to celebrate gratitude — something we may not do enough of these days.

This year, it is especially important we remember those who have been impacted by the coronavirus. This horrific virus we continue to battle has stolen the lives of over 250,000 Americans and 3,400 Alabamians.

During this season of Thanksgiving, I hope you will join me in prayerfully remembering those who have lost a loved one to this virus as well as those who are suffering from it. My prayers are with those who are missing a family member or friend this holiday season.

As we’ve learned to adjust our daily routines and activities throughout the course of this pandemic, we know this Thanksgiving will not look like those of the past. Please be mindful of any safety measures and precautions that have been put in place to help protect your family and those around you.

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The Alabama Department of Public Health released guidance that includes a list of low, moderate and high-risk activities in order to help Alabamians have a safer holiday season. ADPH suggests a few lower-risk activities such as having a small dinner with members of your household, preparing and safely delivering meals to family and neighbors who are at high-risk or hosting a virtual dinner with friends.

The Centers for Disease Control and Prevention recommends hosting an outdoor gathering and limiting the number of guests.

While the road to recovery is not always easy, I am confident that we will get through this health crisis together, and we will be better because of it. The American people are resilient, and we will not let this virus knock us down.

In the spirit of the holiday, I want to take this opportunity to tell you that I am thankful for the responsibility to serve our state and country in the United States Congress.

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I am honored to be in a position to make a difference on behalf of Alabama’s 2nd District, so thank you for allowing me to serve you. From the Roby family to yours, we hope you have a happy and healthy Thanksgiving.

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Opinion | 400 years later, the Pilgrim story is more relevant than ever

“I think that giving thanks for the land that we call home is especially important this year.”

Robert Aderholt

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(APR GRAPHIC)

This Thanksgiving will be different from any other we have had in our lifetimes.  This past year has been a struggle, as every single one of us has had their normal lives disrupted.  Many of us have also lost friends and family as the Coronavirus has swept through our communities. To say 2020 has been a trying time would be an understatement.

This year has not been unlike that first year the Pilgrims spent after landing at Plymouth Rock; their crossing of the Atlantic, their year of loss and struggle and their ultimate triumph.

Four hundred years ago, a group of 102 passengers set sail from England on a ship known as the Mayflower. They left their homeland with eyes set on the New World, where hopes of religious freedom and entrepreneurial opportunities awaited. Today, four centuries later, the New World that these pilgrims found is now the greatest country in the world, the United States of America.

As we look forward to celebrating Thanksgiving in a few days with our loved ones, (as best we can under the current situation) I think that giving thanks for the land that we call home is especially important this year. With the 400th anniversary of the Mayflower landing, we can look back and admire those brave men and women who embarked on a dangerous journey across the Atlantic Ocean. Many of the passengers aboard that ship sought religious freedom that would only be possible here in the New World. That religious freedom they risked their lives for remains a value we treasure and must continue to defend today.  Sadly, it’s a freedom we too often take for granted each and every day.

And when rough weather forced the Mayflower to land in Massachusetts rather than Virginia, the seeds of democracy were sewn. It was the Mayflower Compact that gave way to the Pilgrims establishing a colony that created its own laws and abided by them. This incredible feat of getting consensus among a diverse group is what led to the first self-governing document in the New World. The Mayflower Compact established something that had never been done before but was soon to be replicated on a larger scale when the nation’s Founding Father’s put pen to parchment and drafted the Constitution. 

It was the brave passengers of the Mayflower who started the tradition of a day of giving thanks in the year 1621. That first year, especially the winter of 1620-21 was harsh and deadly.  Of the 102 original passengers, 45 died the first year. Many died from exposure to the cold, from diseases and from malnutrition. Four entire Mayflower families also died that first winter in Massachusetts.

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But those who survived persevered.  While it wasn’t called Thanksgiving back then, it was a joyous celebration of the Pilgrims’ first corn harvest that they invited nearby Native Americans to join. Some two hundred and forty years later, President Abraham Lincoln established Thanksgiving as a national holiday to be observed on the final Thursday of each November. 

While we are still struggling through the season of COVID, we can look to those 102 brave souls from four centuries ago who also struggled.  But they trusted that brighter days and the prospect of freedom were on the horizon.   Not only that, but they looked to God for their guidance and thank him for bringing them to the place we are today.  

So, on this Thanksgiving, while we still struggle, we can take comfort from those who came before us.  We owe so much to the Pilgrims, as God put it in their hearts to travel to the New World.  Furthermore, they set before us a spirit of Thanksgiving to the all-knowing God.  And that is an example for us today, perhaps even more so than ever.

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Opinion | Record voter turnout in Alabama shows need for voting legislation

“When Alabamians had reasonable and secure options to access the ballot, they exercised their right to vote in the highest numbers in state history.”

JaTaune Bosby

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(STOCK PHOTO)

More than 140 million voters took part in the historic 2020 election. Alabamians cast 2.3 million ballots, and cast absentee ballots in record numbers. More than 300,000 absentee votes were requested in-person or by mail.

Headlines have lauded the level of participation; however, we must be careful in allowing a narrative to capture a moment while erasing the history and evolution of voter suppression in this state and across the Deep South.

That is why now more than ever, we must expand voting in Alabama.

The full enfranchisement of voters based on race has only been in place for 55 years since the passing of the Voting Rights Act, but that has since been undermined with the Supreme Court’s Shelby v. Holder decision, which removed federal oversight from state voting regulations and allowed for burdensome requirements like voter ID to become the standard.

Alabama, the very battleground for voting rights in this country, once again backslid and since then has remained even behind many of our neighbors as far as options for voting.

However, this year, when Alabama emerged as a hotspot for COVID-19, state leaders ensured voters would have more choices when casting their ballot this year by permitting use of the absentee and in-person absentee voting for all registered voters.

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This opportunity energized voters, as we saw long lines outside of courthouses across Alabama, from Mobile and Montgomery to Birmingham and Tuscaloosa. Voter turnout exceeded 66 percent nationwide and 61 percent in the state.

When Alabamians had reasonable and secure options to access the ballot, they exercised their right to vote in the highest numbers in state history.

These numbers show that Alabama voters want more voting options prior to Election Day, and it is now up to lawmakers in this state to take a stance for the citizens of Alabama. In the upcoming legislative session, the Alabama legislature must ensure we make voting expansion a priority.

The right to the ballot box should not depend on signatory requirements or excuses to be able to vote safely by mail, as millions of Americans did this past election. Passing legislation can give working parents, caregivers, people with disabilities, and all voters more choices so that voting is made simple and accessible for all Alabamians.

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This historic fight of Civil Rights activists in this very state sent a message to not only the rest of the U.S., but to the world, that democracy and the right to vote is one of our most powerful tools to make our voices heard.

This year, our collective voices have been resounding, and despite our circumstances — a global pandemic, an international social movement, and major political shifts that have impacted our families and our communities for decades to come — we ensured that our voices were heard at the ballot box.

Today, we must aim to be a shining example once again of democracy’s promise and demonstrate that free, fair and accessible elections drive civic engagement at every level and give the people of Alabama the voice in our government that we deserve.

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