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Title : Ayres case: Final act in long-running competency drama?

Ayres case: Final act in long-running competency drama?

Article competency, Article malingering, Notorious psychiatrist found fit for trial on molestation charges

The case has all of the elements of high drama: A once-respected child psychiatrist accused of molesting vulnerable boys sent to him by the courts. Allegations that prosecutors turned a blind eye. Pressure from victim’s rights lobbyists. And, of special interest to this blog’s readers, a bevy of mental health experts presenting contradictory evidence.

For forensic professionals, the case raises many questions that make it useful as a teaching tool:

• Is competency an all-or-none construct?
• Does symptom exaggeration equate to full-out malingering?
• How might dementia affect a defendant’s trial abilities?
• What weight should be given to the opinions of laypersons as opposed to trained psychologists and psychiatrists? 

William Ayres

The four-day competency hearing in San Mateo County, California (just south of San Francisco) was the latest in the long-running saga of William Ayres, one-time president of the American Academy of Child and Adolescent Psychiatry and host of a controversial 1960s public television sex education show for children, "Time of Your Life."

Ayres was arrested in 2007 on charges of molesting six boys, ages 9 to 13, between 1988 and 1996. He was suspected of molesting many more, but the statute of limitations barred prosecution. At his 2009 trial he claimed he was just conducting routine medical exams of his child patients. Although psychiatry focuses on the mind, he apparently felt the genital area was also necessary to probe. The jury deadlocked. After a subsequent jury trial on the issue of competency ended in another hung jury, the two sides stipulated that he was incompetent due to dementia. He spent about nine months at Napa State Hospital -- where defendants in Northern California are sent for competency restoration treatment -- before the hospital decided that he was faking dementia to avoid trial and sent him back.

The prosecution's star witness at the four-day hearing was a newly minted psychologist, licensed for less than one year, who bills himself as an expert on malingering. John McIlnay, who came to Napa after earning his PsyD degree in 2010 from the Christian evangelical school of Azusa Pacific, testified that the 80-year-old psychiatrist was cleverly malingering dementia in order to avoid retrial.

As an example, McIlnay recounted an episode in which Ayres talked with the head nurse about a perceived lack of safety on the unit. A day or so later, the nurse implemented some of his suggestions to address the problem. Ayres noticed, and sought her out to thank her. All of this indicated to McIlnay that Ayres could competently identify a problem, determine solutions, take effective steps to rectify the problem and, inconsistent with a dementia, track all of this in his memory.

Another example offered of spontaneous functioning inconsistent with dementia was his query of a nursing supervisor, when he returned to the hospital from a court hearing, as to whether he still had the same room; he reportedly walked straight to his old room without being directed.

Bolstering McIlnay’s testimony was that of a nurse on the intake unit who sounded the alarm that Ayres might be faking, in part because he was uncooperative with the treatment team. She testified that Ayres was able to correctly relate his medical history, supply the names of all of his medications, and even spell the word "Alzheimer’s" for her.

I didn't find that last example especially compelling. As I learned while doing a neuropsychology internship with the Alzheimer's Center of Northern California, overlearned information is often the last to go. A trained psychiatrist could easily retain the spelling of a word such as Alzheimer's even while suffering from that very condition himself.

Hospital staff divided

McIlnay's determination of malingering was countered by two members of Ayres's treatment team at the hospital, psychologist Thomas Knoblauch and psychiatrist Scott Sutherland. Additionally, Napa psychologist Erin Warnick, who conducted neuropsychological testing, testified that Ayres exaggerated his symptoms at times, but nonetheless had a dementing condition.

Warnick found a number of deficits that would interfere with Ayres's trial competency, including difficulty learning new information, inaccurate recall of some information, language deficits that interfered with retrieving and communicating relevant information in a coherent fashion, impairment in tracking thoughts and inhibiting irrelevant responses, mental perseveration, and emotional and cognitive disorganization when under stress, as might occur during a serious and extended trial.

In his brief decision finding Ayres competent to stand trial, Judge John Grandsaert discounted the testimony of all three clinicians as lacking objectivity.

The public split among hospital staff comes amid a new policy, intended to provide at least a veneer of greater objectivity, barring psychologists and psychiatrists on treatment units from writing forensic reports. While the judge faulted the treatment team as lacking objectivity, to my knowledge there was no discussion of potential bias among the staff members who labeled Ayres as malingering. In a peer-reviewed case study in the Journal of Forensic Psychology Practice, I wrote about my observation of a state hospital bias toward labeling criminal patients as malingerers. If nothing else, from a purely practical standpoint the diagnosis frees up scarce beds. In this case, hospital nurses and technicians might be biased against Ayres not just due to their institutional affiliation, but also because of the nature of the allegations.

The judge also discounted the opinion of UC San Francisco neuropsychologist Amanda Gregory, who testified for the defense, and that of Ayres's attorney, Jonathan McDougall, who in a relatively unusual move took to the witness stand to explain his client's difficulties in rationally assisting in his own defense.

In addition to McIlnay, the judge also afforded greater weight to two other experts called by the prosecution, both of whom opined that Ayres was competent. George Wilkinson, a forensic psychiatrist, concluded Ayres was malingering after the elderly colleague greeted him by name in their first meeting in more than a year. Wilkinson testified that Ayres did have a dementing condition, but was exaggerating his level of impairment. Similarly, forensic psychologist Paul Good -- who evaluated Ayres several times over a two-year period -- testified that Ayres had a dementia, but nonetheless was competent to stand trial "by the thinnest of margins."

Test data brushed aside

Complicating the clinical picture, Ayres passed several specialized tests for malingering administered by various professionals. These included tests of cognitive feigning (the Test of Memory Malingering and the Word Memory Test), tests of malingered incompetence, a test of malingered psychosis (the Miller Forensic Assessment of Symptoms Test), and measures of symptom distortion that were embedded in the longer neuropsychological test batteries.

The judge dismissed all of these data, concluding that Ayres's professional training and experience as a psychiatrist rendered him savvy enough to fake out the seasoned experts:

"The defendant's conduct and statements at Napa State Hospital viewed in the light of his extensive professional training and experience and his intellectual capabilities that were demonstrated from time to time in the evidence in this case showed the defendant to be competent and at the very least exaggerating his cognitive deficits." 

Obviously, a psychiatrist who understands the concept of malingering and knows about the existence of tests to detect it is better positioned to get away with faking than the average layperson. But we're talking about an elderly psychiatrist with no known training in the methodology of contemporary malingering tests. It might pose a challenge, for example, to differentiate neuropsychological tests that are measures of effort (which one would have to do well on to avoid being suspected of malingering) from those that measure cognitive decline (on which one would need to bomb in order to get a dementia diagnosis).

To be competent, the defendant must have a factual and rational understanding of his legal situation and have the rational capacity to assist in his defense. Here, the burden was on the defense to prove, by a preponderance of the evidence, that Ayres was not competent. Had he been found incompetent and permanently unrestorable to competency, he would have avoided trial, but might have faced a legal conservatorship.

The case has spawned its own victim advocacy website

The backdrop to all of the legal wrangling over malingering is a vocal victims' advocacy chorus chomping at the bit to see Ayres get justice. With the specter of Jerry Sandusky lurking in the background, the case has earned national publicity, and even has its own advocacy website: "William Ayres: Child Molester and Malingerer" featuring blow-by-blow coverage. Prosecutors initially dragged their feet on filing charges despite around three dozen alleged victims stepping forward; for a while the courts were still sending boys to Ayres even while he was under investigation. Now that they are on board, prosecutors are anxious to redeem themselves by moving forward against the increasingly feeble octogenarian before it is too late.

Malingering: All-or-nothing?

With such a confluence of interests embracing the image of Ayres as malingerer, any nuance is lost. Symptom exaggeration, so commonplace in our work, is equated as synonymous with all-out malingering, or the complete fabrication of a mental disorder for purposes of secondary gain. As I wrote about in my 2008 case study, individuals who are genuinely impaired may also exaggerate symptoms at times, for a variety of reasons, and it is sometimes quite difficult to disentangle the truth.

There is no doubt that a sly and intelligent defendant can fake out the experts. The best example I know of is that of Vincent "The Chin" Gigante, a Mafia don who feigned insanity for years. But outside of fiction and the movies, such sophisticated deception is rare.

Did it happen here? It's hard to know for sure. But one thing is certain: If Ayres truly does have a progressive dementia such as Alzheimer's, he will only get more impaired as the case drags on. So it would be premature to rule out the possibility of a renewed claim of incompetency as the March 11 trial date draws near.

Meanwhile, Ayres has been released on $900,000 bail, raising another issue that is ripe for reform. More than 70 percent of the 71,000 inmates in California's county jails are there because they are too poor to post bail. From the perspective of social justice, it seems odd for a man suspected of molesting dozens of boys to be walking the streets for year after year while petty miscreants lounge in jail awaiting trial on misdemeanor charges of vandalism or petty theft.

Further resources:

• A previous blog post, with links to my earlier blog posts on the case dating back to 2007, is HERE.
• A list of the witnesses who testified at the competency hearing is HERE.
• A timely analysis of California's bail system, “The Commercial Bail Industry: Profit or Public Safety?” by Amanda Gullings of the Center on Juvenile and Criminal Justice, is HERE.
• An informative Slate magazine article on the misdemeanor incarceration machine, "Why Misdemeanors Aren’t So Minor: Too often the criminal justice system is pronouncing people guilty without evidence, lawyers, or a chance to plead their case," by Alexandra Natapoff, is HERE.

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