Death’s Conviction

"Dr Grigson testified that whether Barefoot was in society at large or in a prison society there was a ‘one hundred percent and absolute’ chance that Barefoot would commit future acts of criminal violence that would constitute a continuing threat to society.”¹

- Testimony of Dr Grigson (aka “Dr Death”).
 Capital trial of Barefoot v. Estelle,

“[The forensic psychiatrist] must clearly distinguish between his own idiosyncratic views and that of the scientific community.”²

- Bernard Diamond, MD

I had lunch with Death. Some 12 or so years ago, as a chief resident in psychiatry, I sat eye-to-eye across the table from Death. One-on-one, over our faculty club lunches, he was a bit hard to converse with. In fact, the exact opposite of how he had been when presenting grand rounds just an hour before. In forensic circles, Dr James Grigson, now deceased, is arguably one of the most well recognized--albeit infamous--forensic psychiatrists in the United States. He is perhaps best known for his involvement in 2 Texas capital murder cases: Estelle v. Smith¹ and Barefoot v. Estelle.³

In Barefoot, the defendant had been convicted of the capital murder of a police officer. At the sentencing phase of the case, Texas law required the jury to find that the defendant was likely to commit future violent acts, even if incarcerated, to be able to impose the death penalty. Dr Grigson’s ability to convince juries that the defendant would kill again was unparalleled. Without even evaluating Mr Barefoot (relying only on hypothetical data presented by the prosecutor), Grigson convinced the jury to recommend the death penalty for Mr Barefoot. Texas defense attorneys literally feared “Dr Death,” as his testimony “colored in the eyes of an impressionable jury by the inevitable untouchability of a medical specialist's words, equates with death itself.”1  Thus the moniker – Dr Death. 

But as I sat that day at his grand rounds, I believe I began to comprehend why this ordinary looking psychiatrist possessed the extraordinary ability to convince juries “beyond a reasonable doubt” of something that the scientific literature clearly said was far from certain. The first thing I noticed was that Grigson was imminently aware of his outsider status (This was some 10 years after he had been ousted from the APA on ethical grounds for his testimony that there was a “one hundred percent and absolute” chance that Barefoot would commit future acts of criminal violence). 

Can you imagine taking the podium under such circumstances. . . with full knowledge that the majority of the audience held you in contempt? Many present were activists and human rights specialists, who sat poised like cobras ready to strike. The tension in the room was beyond palpable. It was a surreal type of corporeal. Nevertheless, Dr Grigson took the podium with a casual, dignified ease. As he began to speak, you could hear one of those really tiny pins drop –- the kind that you can never thread. He immediately began, in a very relaxed manner, to address the fact that he knew many in the audience saw him as a villain. “Interesting approach” I thought to myself – acknowledge the elephant in the room, thereby gaining a modicum of credibility. 

Well, I cannot here replicate his entire talk, but suffice it to say that about half way through his presentation, the tension was gone, yet you could still hear a pin drop.  This man, to my amazement, had taken a clearly hostile audience, turned the tables on them, and now had them in the palm of his hand. They laughed at his jokes. They gasped at his dramatic tales. They nodded when he spoke of the tragedy of a brutal murder. One highlight I recall was when he recounted a rape and execution style killing of a convenience store clerk. He put a resounding stone cap on this story, something to the effect of: “That was somebody’s beloved daughter. . . can their pain ever be measured? No matter what you think of the death penalty, we can all agree – that family’s pain can never be accounted for.” That did it. He had overcome all significant resistance in the room (except for a few die-hard liberals who were smart enough to simply sit there and keep quiet).

Immediately after his talk, I felt somewhat fortunate to attend the faculty club lunch with Dr Death and other forensic types from the department. I made sure I got a seat directly across from him. I had some questions I needed to ask him. . . questions about certainty, life, death, etc. I never got the chance to pose my questions to Death. In addition to the fact that he was besieged by other, more senior, faculty, when I did try to talk with him, the “magic,” strangely, seemed to be gone. It was as if he had been unplugged. No more animation, charisma, persuasion, or endless intriguing tales. 

He was actually demure, but with a reservation and look in his eye that told me he was not about to be opened up and read.  This was my last encounter with Death, or at least Dr Death.  I learned 4 or so years later that he had succumbed to cancer.  Nevertheless, his example lives on, most notably every year at the American Academy of Psychiatry and the Law Review Course, where videos of his testimony are shown to aspiring forensic psychiatrists to teach them about unethical practices. I’ve seen the videos. They are fascinating, but I hate to say that they don’t really do him justice. You had to see him live and spontaneous to get a true sense of his “skills.” I admit that I was fascinated by his skills. But it was the type of fascination one has for an exceptional confidence man whom you recognize will eventually be caught.

In the end, I suppose, some have a “gift” of verbal persuasion -– a special power if you will. As with any power, it can be used for good or for ill. During my career, I have seen many outstanding forensic psychiatrists with this special skill who have used it in a supremely objective way to educate the court. This is truly a beautiful thing to see. As one foremost scholar in the area has noted, “The forensic practitioner should strive to provide the court with the most legally useful information, and remain within the bounds of their expertise.”⁴ The problem is that the progress of psychiatric science results in an ever-shifting boundary between disease and deviance.⁵

Thus, the duty falls heavily on the forensic psychiatrist to strive not only for accuracy and objectivity, but also honesty about the limitations of the field. It would be foolish of me to argue that forensic psychiatrists do not make value judgments, either implicitly or explicitly.  However, the key principle to remember is that in drifting away from evidence-based science and objective reasoning, the line between fact and value becomes increasingly blurred.⁶  It is how the forensic psychiatrist conducts him or herself in precisely such situations that will demonstrate their integrity and commitment to the ethics of the field.

“The [forensic psychiatrist] tries to maintain an attitude of cool scientific inquiry – - neither judging nor condemning; simply asking why the criminal has behaved in this way…. It isn’t easy to maintain this ideal scientific objectivity, and a psychiatrist often fails in the effort.  He finds himself judging and condemning, loving and hating and pitying like everybody else. He is only human after all.”⁷

References:

1. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383 (1983).
2. Diamond B. The forensic psychiatrist: consultant verses activist in legal doctrine. Bull Am Acad Psychiatry Law. 1992;2:119-132.
3.Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866 (1981).
4.Morse S. The ethics of forensic practice: reclaiming the wasteland. J Am Acad Psychiatry Law, 2008:36:206-17.
5.Rosenberg, C. Contested boundaries: psychiatry, disease, and diagnosis. Perspect Biol Med.2006;49:407-424.
6.Stone A. The ethical boundaries of forensic psychiatry: a view from the ivory tower. Bull Am Acad Psychiatry Law, 1984;12:209-219.
7.Brussel J. Casebook of a Crime Psychiatrist. New York, NY: Grove Press, Inc, 1968.