"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, December 06, 2006

"Malingering"

This is a word that the public should be more familiar with. It means: "the act of intentionally feigning or exaggerating physical or psychological symptoms for personal gain."

Malingering in personal injury cases has caused enormous social costs: "The total cost of health insurance fraud in the United States (including untruthful claims by patients and medical personnel) was more than $59 billion in 1995, resulting in a cost of $1050 in added premiums for the average American family."

Recently a man faked retardation for twenty years so he could receive disability benefits.

Consider now the case of Percy Walton, which has been mentioned before here. I've pointed out before the salient facts:

Jessie and Elizabeth Kendrick, a couple in their 80s, and 33-year-old Archie Moore were Walton's victims. The victims were robbed and shot in the head; Mr Kendrick face down in the carpet listened to his wife beg on her knees for her life before being shot in the head with the gun muzzle pressed against her skull; then he himself was shot in the back of the head the same way as he lay crying. Moore was shot in a separate murder and stuffed in a closet.

Walton plead guilty to capital murder and was sentenced to death. Now his lawyers, aided by the usual crowd of activists and the religious left and even, bizzarely, by the Christian "conservative" Rutherford Institute (which has bought into the liberal religious activist anti death penalty mentality), are pointing to an array of bizzare conduct by Walton and some professionals' opinions that he's nuts, and arguing that his late-found lunacy should spare him from his fate.

Yet fifteen different judges have reviewed this case and agreed that Walton was competent to plead guilty and understands what his punishment is.

In May of 2004 the Federal District Court summarized the facts supporting Walton's competency and sanity both for purposes of pleading guilty and for understanding the nature of his punishment:

When Walton was seventeen, he received the Wechsler Adult Intelligence Scale -Revised (“WAIS-R”) IQ test and achieved a full-scale score of 90, placing him in the “average” range of intelligence. When Walton was eighteen, he completed the WAIS-R IQ test again and achieved a full-scale IQ of 77, placing him in the “low average” range, but not in the mental retardation range. When Walton was twenty, he was again given the WAIS-R IQ test and scored a full-scale IQ of 69. Finally, when Walton was twenty-four, he received the “GAMA” test and scored a 66, a result considered “well below average.” In a footnote, the court observed that the GAMA test heavily relied upon by Walton was generally used as a screening device and was not one of the standardized tests of intellectual function recognized by the Virginia Department of Mental Health. The court also considered the opinions of Dr. Stanton Samenow and Dr. Patricia General, both of whom opined that Walton was not mentally retarded.This court has already found that Walton understands why he is being punished and that he will be punished by execution. Furthermore, the court also finds that Walton has consistently selected electrocution as a method of execution and that he understands that electrocution will result in his death. Before pleading guilty, Walton stated “the chair is for killers”and that he wanted to plead guilty, get “the chair” and “go out like a man.” Dr. Samenow testified that Walton understood that a capital murder charge can result in the death penalty ‘by electric chair or needle.’” More recently, Dr. Mills, the psychiatrist appointed by this court, testified that Walton expressed a preference to die by electrocution. Particularly revealing is the testimony of Allen Glasgow, a rehabilitation counselor who was with Walton on May 23, 2003–just a few days after Walton selected his method of execution. Glasgow testified that Walton communicated well, completed a visitor’s form without assistance, and stated that he wanted his mother to receive his remains upon his death.
Moreover, the Court noted that the defendant had been through a plea colloquy with the trial judge before his guilty pleas were accepted, a colloquy which satisfied the court that Walton understood very specifically what was happening to him.

So isn't it interesting how these professional anti-death penalty advocacy groups tell their audiences only about the supposedly crazy conduct Walton engages in, without mentioning the inconvenient facts that have led the courts to conclude that, in effect, he's nothing but a snivelling malingerer? (We'll leave to another day discussion of the curious concept that a vicious killer should escape death if he's mentally ill).

Governor Tim Kaine, who is personally opposed to capital punishment, has now deferred the execution date of Walton for eighteen months, a time which will be spent desparately trying to produce "findings" that Walton is genuinely mentally deficient, which of course, will give Kaine the political cover he needs to grant clemency to a death row inmate and commute his sentence to life imprisonment.

The DSM-IV-TR states that malingering is suspected if one or more of the following are observed:
1) Medicolegal context of presentation.
2) Marked discrepancy between the person’s
claimed stress of disability and the objective findings.
3) Lack of cooperation during the diagnostic evaluation and in complying with
prescribed treatment regimen.
4) The presence of Antisocial Personality Disorder.

Are any one of these factors present here? "Medicolegal context" is a fancy way of saying that lawyers or legal concerns might have suggested to this person that he should make up symptoms. That circumstance is strongly indicated in this case, where Walton has had access to lawyers and a law library either one of which might have informed him that under Supreme Court precedent, if he does not understand what is happening to him when he is executed, the execution may not proceed.

Second, there is certainly a discrepancy between the claim that Walton cannot understand what is happening to him and the observations of trained medical professionals, observations and conclusions which convinced many different judges that there is no mental deficiency precluding execution.

The third indicator, lack of cooperation, is apparently not present in Walton's case.

Walton could be the textbook example of the fourth indicator, antisocial personality disorder (defined as: "a psychiatric condition characterized by chronic behavior that manipulates, exploits, or violates the rights of others. This behavior is often criminal.").

Hence, not only one, but probably three clinical indicators of malingering are present in this case!

People malinger for financial gain; is anyone surprised that Walton might malinger for his own life?

If Kaine wants to be a creduluous sucker on his own time, fine. But he's defying the will of the judicial process which has found no bar to Walton's sentence being carried out; and he's endangering the public (inmates escape death row from time to time), the prison staff, and other inmates by forcing them unneccessarily to be in constant close contact with a merciless killer.

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