Will T.J. Lane Be Tried As An Adult?

This week, the prosecutors in the T.J. Lane case filed charges against him in juvenile court. But, it is still possible for them to request that the judge transfer his case to an adult court, which would make it possible for him to face significantly harsher penalties if he is found guilty in the Chadron, OH school shooting.

I have worked on several of these "transfer" cases in Colorado, where prosecutors argued to the court that the public would be better served if the juvenile in question were tried as an adult.

Each state has its own requirements for determining when a transfer from juvenile to adult court is appropriate. In Colorado, the judge must consider 14 different aspects of the case. Those aspects are listed in C.R.S. 19-2-518(4)(b) I - XIV. If Mr. Lane were to face a question of transferring his case in Colorado, these are the issues the court would need to consider (those highlighted in yellow are issues where a forensic psychologist may have some input):

(I) The seriousness of the offense and whether the protection of the community requires isolation of the juvenile beyond that afforded by juvenile facilities;

		(II) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;

		(III) Whether the alleged offense was against persons or property, greater weight being given to offenses against persons;

		(IV) The maturity of the juvenile as determined by considerations of the juvenile's home, environment, emotional attitude, and pattern of living;

		(V) The record and previous history of the juvenile;

		(VI) The likelihood of rehabilitation of the juvenile by use of facilities available to the juvenile court;

		(VII) The interest of the community in the imposition of a punishment commensurate with the gravity of the offense;

		(VIII) The impact of the offense on the victim;

		(IX) That the juvenile was twice previously adjudicated a delinquent juvenile for delinquent acts that constitute felonies;

		(X) That the juvenile was previously adjudicated a juvenile delinquent for a delinquent act that constitutes a crime of violence, as defined in section 18-1.3-406, C.R.S.;

		(XI) That the juvenile was previously committed to the department of human services following an adjudication for a delinquent act that constitutes a felony;

		(XII) That the juvenile is sixteen years of age or older at the time of the offense and the present act constitutes a crime of violence, as defined in section 18-1.3-406, C.R.S.;

		(XIII) That the juvenile is sixteen years of age or older at the time of the offense and has been twice previously adjudicated a juvenile delinquent for delinquent acts against property that constitute felonies; and

		(XIV) That the juvenile used, or possessed and threatened the use of, a deadly weapon in the commission of a delinquent act. -------- Note that the court needs to take into account the maturity and background history of the individual. Often, defense attorneys in transfer cases will argue that the defendant is not mature enough to face an adult sentence and his/her background is tragic and traumatic enough that trying the defendant as an adult is inappropriate. Although the court must take the juvenile's personal factors into account, they are not the only aspects of a transfer that the court must consider. As is outlined above, there are a number of other legal factors the court must weigh, some of them potentially overriding any "good" or "bad" information regarding the juvenile's maturity and personal history. Thanks for reading-- Max Wachtel, Ph.D. www.CherryCreekPsychology.com Like me on Facebook: Dr. Maximillian Wachtel Follow me on Twitter: @mwachtel

Don't Talk to a Forensic Psychologist!

Wait...but I am a forensic psychologist. Why would I ever argue that you shouldn't talk with me? Isn't that bad for my business?

Let me explain.

Every now and then I get voicemails or e-mails from desperate people. These people are usually involved in a legal matter with high stakes: felony criminal charges, prison time, custody battles, civil lawsuits, etc. They explain their entire case to me, including their version of the facts of the case, what "actually happened," their mental state, their opponent's vendetta against them, and their legal strategy.

I never return these calls or e-mails.

I am not an attorney, and I cannot give legal advice. But, I can say that a cursory understanding of the American system of justice tells me that no one should be sharing information about a legal case with anyone when the communication is not confidential. When I am hired by an attorney to work on a case, the information I collect is typically confidential. Without a court order or permission from the client, I usually cannot share information with the court or with opposing counsel. If an attorney has not retained my services, I have not established a professional relationship with the client/litigant/defendant, and any information revealed to me can be shared with opposing counsel. I can be called to testify against the person, and my e-mails or voicemails can be reviewed by the opposing attorneys.

So, that is what I mean when I say you should not talk to a forensic psychologist (or anyone, for that matter) about your case. You might find my name and e-mail address online in the middle of the night and think it is a good idea to send me a detailed summary of your case in the hope that I might help. That is a bad idea! Talk to your attorney first--if he/she thinks it could be helpful, your attorney can contact me, and we can discuss the case in an appropriate manner prior to my being hired to work with you. You are paying your attorney a lot of money. Let him/her do the job he/she was hired to do. And, stop telling people about your case!

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
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My Interview on Fox 31 News

I was interviewed on Fox 31 News (KDVR) on Sunday, May 8 about the Osama bin Laden videos:



Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

New Website Design

http://www.cherrycreekpsychology.com
After 7 years, I have finally updated by website design. There is still some information missing, but it is looking good so far. I will be adding more news and video as the weeks go by. In the meantime, I hope you check it out. It is integrated with social media, so it is very easy to "like" my Facebook page or follow me on Twitter.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
Like me on Facebook: Dr. Maximillian Wachtel
Follow me on Twitter: @mwachtel

Jared Loughner is Still Incompetent to Stand Trial

Here is a link to an LA Times article about Jared Loughner's current mental state:

Jared Loughner Making "Progress" Toward Standing Trial, Judge Says

The judge still considers him incompetent to proceed, which means he does not possess the ability to consult with his legal team to aid in his defense and/or he does not have a "rational and factual understanding" of the criminal proceedings. However, it appears that the mental health experts who are treating him think he is improving with his court-ordered antipsychotic medication. It is quite possible that, within the next 6-8 months, the judge will rule that he is competent to proceed, and he will then face all 49 felony counts against him.

It is important that the judge make certain that Loughner is competent prior to proceeding with the case. If he is convicted on any of his charges and later appeals, arguing that his Constitutional Rights were violated because he was not competent to stand trial, all of his convictions could be overturned and he would need to be immediately released.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
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Danger to Others?

A student of mine at the University of Denver raised an interesting question recently: If a therapy client tells you he is going to rape someone after his session with you, do you have an ethical or legal obligation to do something about it?

At first glance, the answer seems obvious. As a decent human being, of course you would have an obligation to try to prevent a rape. Unfortunately, the answer is not that simple. As a therapist, you need to consider three different factors: 1) Confidentiality, 2) Danger to Self/Others, and 3) Duty to Protect.

1) Confidentiality. In Colorado (and most other states), therapists are required to keep almost all information provided by a client confidential. Legally, therapists are not allowed to break confidentiality unless the client is a danger to him/herself, a danger to others, or in cases of court orders. In addition, suspected child abuse needs to be reported, and therapists are allowed to  use a therapy client's records to defend themselves if the client sues them for malpractice.

That's it. Those are the only times a therapist can break confidentiality. Past crimes cannot be reported (remember how Tony Soprano would tell his psychiatrist all of the illegal things he had done AFTER he did them?). Most future crimes cannot be reported either, unless the client is in danger of harming someone else, which leads to...

2) Danger to Self/Others. In Colorado, "danger" is not well defined. In extreme cases, suicide and homicide are easily considered "danger" and the therapist is justified in breaking confidentiality in order to keep the public safe. But, cutting on one's arms with no intention of committing suicide may not be considered "danger to self." A planned fist fight at 3:30 on the school playground may not be considered "danger to others."

What about rape? Clearly, rape is a heinous act. But, the vast majority of rapes do not end in death. If a therapy client is planning on raping someone in the immediate future, would you consider that to be "danger to others?" If you answered, "Yes" to that question, then you need to move on to...

3) Duty to Protect. In the 1970's, a man named Prosenjit Poddar killed a California woman named Tatiana Tarasoff. Mr. Poddar had told his therapist of his intention to kill Ms. Tarasoff, and her family sued the psychologist because they felt he did not do enough to protect their daughter from this threat. In two landmark cases, the California Supreme Court agreed, and they established a Duty to Protect.

Although this has not been officially tested in most other states, it has become a standard of care for therapists to follow the Tarasoff case Duty to Protect. If a client has the intention to kill an indentifiable victim and has the means to do so, the therapist must take steps to warn and protect the potential victim. That usually involves calling the police, calling the intended victim, and taking other reasonable steps (like telling a school principal or campus safety, given the specifics of the case).

The California Supreme Court wrote, "The protective privilege [i.e. confidentiality] ends where the public peril begins."

So, there is still no clear answer as to whether or not it is legally permissible or legally required to break a therapy client's confidentiality in order to prevent a rape. Ethically, I think it is clear that therapists should try to do everything in their power to stop such a horrible act from occurring. But, does that include warning the intended victim and the police? What would you do?


Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
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End of the Quarter at DU

I taught my last classes of the fall quarter at the University of Denver yesterday. For those of you who are not familiar with colleges on the quarter system, the fall quarter ends in mid-November and the winter quarter does not start until the beginning of January. It will be a nice, long break!

I taught a counseling theory class for masters students this quarter, along with a legal and ethical issues class for doctoral students. Next quarter, I am going to be teaching two legal and ethical issues classes for masters students.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com