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Criminal Justice

Forensic psychiatrists are trained to evaluate defendants for evidence or absence of psychiatric disorders that impair competence or diminish capacity. Following the Daubert decision, guidelines for reliability and relevance of expert evidence have evolved. Thus, experts today need additional preparation (e.g. literature review) prior to offering courtroom testimony. The following articles provide a deeper analysis of forensic psychiatry.

• Interview: Potential psychological explanations behind bombings. Dr. Bursztajn is interviewed in the Boston Globe on the recent Boston Marathon bombings. This is further explored on WBUR's CommonHealth: The 'Folie à Deux' Theory of the Boston Bombings.
• Case: Stewart v. USA. Dr. Bursztajn's analysis is essential in getting this undue duty to warn case against a VA psychologist dismissed.
• Interview: Understanding the Mindset of a Shooter's Parents. Dr. Bursztajn is interviewed for Time.com on the frequently ignored and otherwise silent dimension of the grief not only of the families of the victims of a tragedy but also the grief of the families of the perpetrators.
• Interview: The Sergeant in Question: A Portrait of the Accused Shooter of Kandahar. Dr. Bursztajn is interviewed on the apparent disconnect between the prior conduct of the United States soldier accused of shooting 16 Afghani civilians and the details of the incident.
• Article: The Rebirth of Forensic Psychiatry in Light of Recent Historical Trends in Criminal Responsibility. Psychiatrists are sometimes misunderstood as "hired guns" whose purpose is to have the guilty exonerated. This widely circulated article by Dr. Bursztajn explains the validity of forensic psychiatric evidence.
• Case: Carvajal v. Mihalek, et al. Dr. Bursztajn's reference to an antisocial history in the course of his examination, opinion, and testimony was affirmed on appeal by a panel which included one of the better senior judge writers in the federal judiciary, Guido Calabrese, whose book, Tragic Choices deals with many of the issues of Dr. Bursztajn's book Medical Choices, Medical Chances in a legal context.
• Death Penalty and Mental Illness: Dr. Bursztajn presents evidence of mental illness in a manner jurors can easily understand.
  • In State of Illinois v. Chris Coleman (2011) Dr. Bursztajn's work the death penalty mitigation phase on this case overlapped with the abolishment of the death penalty by the Illinois legislature and the promised commutation of any death penalty decided on after this act by Governor Pat Quinn. Despite this, the prosecution chose to pursue the death penalty which was ultimately denied by Judge Milton Wharton who may be the last Judge in Illinois to be faced with this decision.
  • In State of Iowa v. June Lyman (2007) Dr. Bursztajn presented to the jury his opinion that Ms. Lyman had no general criminal intent at the time of the shooting. Though the prosecution argued for a first-degree murder conviction, the jury returned with a verdict of second-degree which is defined as non-premeditated in the state of Iowa. Articles and video from local television stations are available and here.
  • In State of Illinois v. Aubrey Tucker (2007) Dr. Bursztajn testified in three phases of the trial: A hearing to suppress Tucker's confession that the defense alleged was coerced, in the guilt/innocence phase regarding Tucker's ability to form specific intent, and in the sentencing phase where the jury found that sufficient mitigating factors were present to preclude a death-penalty verdict.
  • In State of Washington v. Kevin Cruz (2000) Dr. Bursztajn testified that the defendant was suffering from a variety of symptoms consistent with those of schizophrenic disorders. After a five month trial, defendant's life was spared.
• Case: Silverstein v. U.S. Dr. Bursztajn's review of the plaintiff's, Thomas Silverstein, mental state through review of medical and case records and a forensic psychiatric interview of the plaintiff lead to his opinion: "...I do not find evidence of damage to Mr. Silverstein's mental health resulting from the conditions of confinement." This opinion led to the court's granting the Bureau of Prison's Motion for Summary Judgment dismissing the case as reported by the Denver Post.
• Case: State of New York v. Nixzaliz Santiago. (2008) Dr. Bursztajn was retained by the prosecution for examination of defendant. Articles on the verdict in the New York Times
• Case: US v. Jane Doe. Mental Illness Creates Eligibility for a Lower Sentence. Dr. Bursztajn testifies in Federal Court that defendant suffered from diminished capacity and complex PTSD (vs. simple PTSD) which often presents itself in compulsive self-destructive behavior. (January 2004)
• Article: Outings for Hinckley: Wellness vs. Safety. Dr. Bursztajn is quoted in a Boston Globe article responding to questions on the possible release of Ronald Reagan's would-be assassin, John Hinckley, Jr., who was committed to St. Elizabeth's Hospital suffering from schizophrenia.
• Article: The Role of a Forensic Psychiatrist in Legal Proceedings. An overview of the function of forensic psychiatry and how it differs from clinical practice.
• Article: National Certification for Forensic Psychiatrists: A Preview of the Post-Daubert Expert. Dr. Bursztajn's article on the effect of the Daubert ruling on the use of expert witnesses and its specific effect on forensic psychiatric testimony.
• Article: Daubert Without Prejudice: Achieving Relevance and Reliability Without Randomness. Dr. Bursztajn's article exploring post-Daubert developments in standards for forensic psychiatric evaluation.
• Article: Rashomon and the Criminal Law. While mental disabilities can affect rulings, the legal structure that dictates how such testimony can be used is not well understood.
• Case: Kansas v. Crane. Finding of Complete Lack of Volition Not Required For Civil Commitment of Dangerous Sexual Offender
• Case: Porter v. McCollum. A unanimous Supreme Court ruled that a Korean War veteran, who likely had PTSD, received ineffective assistance of counsel, where he was sentenced to death for murder and no evidence about his mental state or other mitigating factors were introduced at the penalty phase.
• American Association of Legal Nurse Consultants (AALNC) offers information for RNs who are legal nurse consultants (LNCs), for attorneys looking for an LNC, and for RNs who want to become a member of the organization.
• Bazelon Center for Mental Health Law supports "legal advocacy for the civil rights and human dignity of people with mental disabilities." This site offers information and resources to support advocacy lawyers, consumer advocacy organizations, state protections, and others.

Aspects of criminal justice that a forensic psychiatrist works with include:

Diminished Capacity

• Case: State of Iowa v. June Betty Lyman
• Case: State of IL v. Aubrey D. Tucker, Jr.
• Case: Commonwealth of MA v. Maimoni. Dr. Bursztajn testified that Maimoni suffered from a longtime personality disorder and that the incident triggered a psychosis that further loosened his grip on reality.
• Case: US v. Doe
• Case: US v. Sullivan
• Letter: competency to make a will. Dr. Bursztajn's letter to the editors of the American Journal of Psychiatry on the importance of separating the roles of the treating psychiatrist and the evaluating psychiatrist in the assessment of competency.
• Review: Are You There Alone? The Unspeakable Crime of Andrea Yates. Dr. Bursztajn's book review for the American Psychiatric Association.
• Article: Court Looks at Legal Role for Mentally Ill, New York Times, March 27, 2008. A longstanding area of special interested to Dr. Bursztajn since his article with Tom Gutheil, MD, Clinicians' guidelines for assessing and presenting subtle forms of patient incompetence in legal settings, is the foundational extent and the relationship of specific impairments on the evaluation of diminished capacity in regards to competence to stand trial versus self-representation. See also Dr. Bursztajn's book Psychiatric Ethics and the Rights of Persons with Mental Disabilities in the Community.
• Case: United States v. Johnson

Sentencing Guidelines

Forensic psychiatric testimony can affect sentencing. Since a defendant found to be suffering from a psychiatric symptom often receives a less severe sentence, accurately determining a defendant's psychiatric health is important in judging the severity of the offense and the potential for rehabilitation and future offense prevention.

• Report: Recommendation and Report on the Death Penalty and Persons with mental Disabilities. The Commission on Mental & Physical Disability Law's recommendation, which was adopted by the American Bar Association (ABA), had been previously adopted by the American Psychiatric Association, the American Psychological Association, and the National Alliance of the Mentally Ill. The Task Force on Mental Disability and the Death Penalty prepared the recommendation and report. The Task Force was established by the ABA's Section of Individual Rights and Responsibilities. Ronald J. Tabak is Chair of the Task Force.
• Case: Bloom v. Calderon "Failure to Tell Psychiatric Expert About Psychiatric History Constitutes Ineffective Assistance of Counsel"
• Article: "Federal Sentencing Guidelines Criticized by a Key Supporter"

Competency to Confess

False Confessions can be based on helplessness, hopelessness, and interrogation dynamics. A forensic psychiatric examination can help evaluate reliability of confession and potential confounding factors. Dr. Bursztajn's evaluated and testified as a forensic neuropsychiatric expert on altered mental states leading to false confessions for Luc Angier. Mr. Angier was a city official wrongly accused of a white collar crime who while depressed confessed to a crime he did not commit (State of Maine v. Angier). Dr. Bursztajn's expert consultation and testimony was seriously considered by the jury in its acquittal of the defendant. Post acquittal, further investigation proved the defendant's innocence.

• Article: The Truth About Confessions by Peter Brooks, New York Times, September 1, 2002.
• Letter: Suspicious Trials in Iran. Dr. Bursztajn on coerced confessions.

Brain Syndromes

Physical damage or abnormality in the brain can affect behavioral and thought processes. Dr. Bursztajn was among the first experts to be allowed to use brain imaging in the courtroom to support a forensic neuropsychiatric evaluation and testimony.

• Case: US v. Sullivan A physical impairment in the brain affected the defendant's moral and legal behavior. The court took his handicap into consideration and assigned a sentence which avoided jailing the defendant and allowed him to continue with rehabilitation.
• Article: Brain Abnormality Linked to Pathology.
• Article: In Memoirs, Diabetics Tell of Troubles and Triumphs. The need for access to comprehensive psychiatric care for patients with Diabetes.
• Article: Deciphering the Adolescent Brain. Findings are toppling old views and stoking old controversies about the brain's coming of age.
• Psychiatry, Neurology, Neuropsychiatry Dr. Maurice Preter combining Psychiatry and Neurology.

Drugs & Addictions

• Article: Mother who lost mentally ill addicted son: The system is 'broken.' Dr. Bursztajn is interviewed on addiction, mental illness, dual diagnosis and therapeutic jurisprudence. Also highlights the need for a forensic psychiatric evaluation to differentiate on a case by case basis mad from bad in the course of mental health illness, addiction treatment, and encounters with the criminal justice system. Also see What we learned during CNN Parents’ chat on mental health and addiction.
• Article: Ethical and Legal Dimensions of Benzodiazepine Prescription
• Article: In a World of Hazards, Worries Are Often Misplaced. A high risk behavior is most maintained by an individual when it is voluntary and fair. This is particularly true for highly disciplined individuals persisting in a high risk behavior. The New York Times, August 20, 2002.
• Article: The Puzzling Red Wine Headache. The neuropsychiatry of red wine headaches. The New York Times, July 17, 2002.
• Article: Compulsive Gambling: Overlooked Addiction. The New York Times, May 4, 1999.
• Article: In Treating Patients for Pain, a Racial Gap. The New York Times, December 28, 1999.
• Article: In J.F.K. File, Hidden Illness, Pain and Pills. Newly disclosed medical files covering the last eight years of Kennedy's life, including X-rays and prescription records, show that he took painkillers, anti-anxiety agents, stimulants and sleeping pills, as well as hormones to keep him alive, with extra doses in times of stress. The New York Times, November 17, 2002.
• Article: Like Drugs, Talk Therapy Can Change Brain Chemistry. The importance of providing patients with informed and meaningful choices as to treatment modalities is underscored by this article by Richard A Friedman, M.D. The New York Times, August 27, 2002.
• Article: Debate on Acne Drug's Safety Persists Over Two Decades. Can an acne drug cause teenagers to commit suicide? This question returned to the spotlight this month when a 15-year-old boy flew a small airplane into a Florida skyscraper. The New York Times, January 22, 2002.
• Article: Proper Scope of Duty to Warn Before Court. This Supreme Judicial Court of Massachusetts ruling from October 8, 2001, may expand the duty of pharmacies to include warning against harmful side effects of medication.
• Article: Kids Using More Psych Drugs. ADD and the need for a comprehensive psychiatric evaluation in light of prescription drug misuse.
• Article: When O. J. Didn't Have His Game Face. Dr. Bursztajn is quoted in New York Magazine on the side effects of steroid abuse.
• Article: Narcotic OxyContin: Savior or Killer? Oxycontin is the best-selling narcotic pain medication in the United States. It earns about $1 billion every year for its manufacturer, Purdue Pharma. Just two pills a day can stave off the worst pain for patients who suffer from cancer or serious injury but now the painkillers's benefits are overshadowed by reports of addiction and death.
• The Pharmaceutical Manufacturers Association website where consumers can search for information about pharmaceutical products. Topics covered include the development and use of drugs, including Medicare prescription drug coverage, cancer medicines in development, news about biotechnology drugs, and information on the Directory of Patient Assistance Program, which offers medications to those who can't afford to purchase them.
• Tobacco Cessation Guideline. The latest drugs and counseling techniques for treating tobacco use and dependence from the Surgeon General's Office.
• International Network on Therapeutic Jurisprudence

Profiling

• Article: Serial groper has Fairfax County neighborhood on edge. Forensic Psychiatry can help law enforcement by profiling individuals who engage in compulsive and aggressive assaults. Dr. Bursztajn is quoted in the Washington Post, March 13, 2013.
• Book Review: Dr. Bursztajn's book review for the American Journal of Psychiatry (March 2006) on avoiding the pitfalls and keeping the promises of profiling perpetrators.
• Article: Seven Clues As to Why Mysteries Remain Unsolved

Workplace & Public Safety

• Interview: Emotional trauma may have kept Amy Lord from fleeing. Dr. Bursztajn is interviewed in the Boston Globe about the brutal killing of Amy Lord in South Boston and why she may not have tried to escape when the opportunity arose. The Boston Globe, July 26, 2013.
• Dr. Bursztajn is interviewed and quoted in several news articles surrounding the mass shooting at Sandy Hook Elementary School in Newtown, CT on December 14, 2012.
  • Interview: Harold J. Bursztajn '72, on mental-health care. Dr. Bursztajn is interview in the Princeton Alumni Weekly on the role of mental health care in the aftermath of the Newtown shootings.
  • Regarding the relationship and the needed caution with autism related impairments and the likelihood of violence:
    • Article: Anguished search for an explanation. The Washington Post, December 16, 2012.
    • Article: Autism Is Not Psychosis. The Atlantic, December 19, 2012.
  • Regarding the caution necessary in looking for genetic markers for the tendency towards violence:
    • Article: DNA of Newtown Shooter Adam Lanza to Be Studied by Geneticists. ABC News, December 27, 2012.
    • Article: Adam Lanza's DNA To Be Studied. The above article picked up by the Huffington Post, December 27, 2012.
• Interview: Tucson Shooting Renews Gun Control Debate. Dr. Bursztajn is interviewed on NPR's Talk of the Nation on February 16, 2011 on the public safety issues arising out of the shooting of Congresswoman Gabrielle Giffords. The January shooting of Rep. Gabrielle Giffords (D-AZ) and 18 others in Tucson has reignited two issues in the debate over guns in America: the legality of extended magazine clips like the one used by the suspected shooter, and access to firearms by the mentally ill.
• Article: Never Released, Yet Often Missing. The effects of overloading the public sector due to managed care cutbacks on patient care and public safety. Dr. Bursztajn quoted in The Washington Post, February 10, 2003.
• Letter to the Editor: The Fateful Gamble in Moscow. Dr. Harold J. Bursztajn. Validating or legitimizing terrorist-chosen grievances as "root causes" or equating the deaths of those murdered by terrorists with casualties incurred during self- defense efforts encourages copycat terrorists internationally, New York Times, October 29, 2002.
• Article: The Mind of a Suicide Terrorist: Experts Explain the Thinking of Suicide Terrorists. Dr. Bursztajn quoted in an ABC News story, September 19, 2001.
• Article: Terrorists Copy-Cat Minds. Dr. Bursztajn's article on terrorists around the world who are studying our reaction to the terrorist amongst us, hoping to take that reaction into account in the design of future terrorist events, October 23, 2002.
• Article: New York Shock Therapy Police Recruits. Lessons being imparted in a classroom at the United States Holocaust Memorial Museum, as part of a spreading police education program that the museum counts among its most prized achievements as it celebrates its 10th anniversary, the recruits had finished a two-hour museum tour, a history lesson that stunned many recruits to sobered silence. There were its depictions of Jewish ghettos and the Nazis' gleeful exercise of brutal authority, its photographs of victims, its collection of the shoes of the exterminated, its relentless documentation of savage cruelty and, perhaps most stunning of all, of the world's indifference to it.
• Article: Forensic Psychiatry and Social Issues: A British Perspective. Mental illness, suicide in prisons and destructive behavior.
• Article: Childhood Abuse and Adult Stress. A study links trauma, depression and response to anxiety.
• Bureau of Justice Statistics The US Department of Justice provides a web site that contains statistics on workplace violence from 1992-1996.
• Article: Violence in public health and preventive medicine

Dr. Bursztajn's consulting services include prevention, crisis response, and post-crisis post-vention for traumatized co-workers.

Violence Prevention

• Article: Grandson's erratic behavior detailed. Dr. Bursztajn is quoted in a March 18, 2009 Boston Globe article on the recent killing of Eleanor Clark by her grandson, James Clark.
• Article: Suspect's Killing of Cats Was an Ominous Sign. Dr. Bursztajn's public comments in the Boston Herald on the Capitol Hill killings. Dr. Bursztajn was also interviewed on June 7, 1998 by the spanish speaking media journal, the Jornal da Tarde, on these killings:

  To specialists, the acts by Weston that preceded the attack in the Capital can help to explain his psychological problems. Right before the attack, he had killed various cats (using a gun) in Varmeyer. His apparent motive for that was that he had been expelled from his house by his father. The killing of animals is many times a sign that there is a "homicidal psychosis", says Harold Bursztajn, from the Harvard Medical School.

• Article: Preventing Neo-Nazi Cult Violence in Our Schools. Dr. Bursztajn's comments on the Littleton killings.
• Article: Troubled Adolescents Need A Double Safety Net. An article by Dr. Bursztajn and his colleague Irene Coletsos.
• Article: Attacks Spur Call to Force Medications. Chicago Tribune article quoting Dr. Bursztajn.
• Article: Major Mental Illness & Violence: Quick Fix vs. Commitment to Care.
• Article: Mental Disorder Defies Docs. Dr. Bursztajn is interviewed by the Boston Herald regarding the Edgewater Technologies Shootings in Wakefield on January 2nd, 2001.
• The Program for Young Negotiators is designed to build negotiation skills in both teachers and students. The book, Young Negotiators by Jared R. Curhan, is a wonderful guide to negotiating conflict resolution in the best interest of a just, non-violent community. [Houghton-Mifflin, 1998, Boston, MA].

Violence is sometimes a problem in legal proceedings. Attorneys and judges in litigation related proceedings have been cautioned about violence prevention. Dr. Bursztajn's work in judicial education and courtroom violence has been widely recognized.

• Article: On Guard: Law as a High-Risk Profession. Dr. Bursztajn is quoted on recent violence against Judges, Maryland Daily Record, November 10, 2005.
• Article: Violence Against Attorneys and Judges. Dr. Bursztajn's article on dealing with potential violence in litigation-related circumstances.

Domestic Violence

• Article: NFL Star Brandon Marshall Has Borderline Personality Disorder. Dr. Bursztajn's is interviewed on ABC News helping to explain Borderline Personality Disorder and its effect on the Miami Dolphins' wide receiver Brandon Marshall and the incidents of alleged domestic violence between him and his wife.
• Article: Doctor Bolsters Insanity Defense. A jury overcomes prejudice against the insanity defense. Brattleboro Reformer, Vermont 1999.
• Abstract: Does Batterer Treatment Reduce Violence?: A Randomized Experiment in Brooklyn

Bioterrorism Prevention

• Letter to the Editor: An Offensive Against Bioterrorism , Boston Globe, October 4, 2001. Also published in The Wall Street Journal, October 3, 2001 under "Bio-War: Best Defense is a Good Offense"
• Article: The Cult of Terrorism. Dr. Bursztajn's interview with InteliHealth News Service, October 1, 2001.
• Article: Bioterrorism Prevention Means Changing our Minds Dr. Bursztajn's discussions with his medical school colleagues who are experts in infectious disease lend special urgency to the concerns expressed in the media about bioterrorism via smallpox or anthrax.
• Article: Focused, Not Crazy: Experts Explain the Thinking of Suicide Terrorists. The psychological profile of the World Trade Center and Pentagon terrorists differs from earlier profiles of Terrorists. Dr. Bursztajn's interview with ABC News that the terrorists responsible for the World Trade Center and Pentagon disasters did not display symptoms of those who typically contemplate suicide.
• Article: Managing Traumatic Stress: Tips for Recovering From Disasters and Other Traumatic Events. APA Guidelines.
• Center for Disease Control. Resource Page that includes section on disease/agent specific information to biological and chemical agents as well as some useful links.

Nuremberg Code

• Nuremberg Code. The ten principles of ethics governing the use of human subjects.
• Protection of Human Subjects in Research. Home Page of the US Air Force Academy's Institutional Review Board.
• United States Holocaust Memorial Museum. The Official Trial Record at Nuremberg.

Recommended Reading:

• Gilman, S. L. (1985). Difference and Pathology: Stereotypes of Sexuality, Race and Madness. Ithaca: Cornell University Press.
• Jackson, J. L., & Bekerian, D. A. (1997). Offender Profiling: Theory, Research and Practice (Wiley Series in Psychology of Crime, Policing and Law) Chichester, UK: Wiley.

Legal Resources: The Committee for Public Counsel Services (CPCS) is a fifteen-member body established by Chapter 211D of the Massachusetts General Laws to oversee the provision of legal representation to indigent persons in the Commonwealth. For more information, see the CPCS Mental Health Litigation Home Page.

Dr. Bursztajn has an active patient care practice and consults to physicians, institutions, judges, and plaintiff and defense counsel nationally.