Tipping the Scales
A psychologist's testimony about a shocking murder stood at odds with the defendant's long psychiatric history. It raises the question: What shapes the view of an expert witness?
By Mike Mariani published May 2, 2016 - last reviewed on June 10, 2016
Growing up in the 1990s on the Upper West Side of Manhattan, Julian Kurita cultivated a set of interests that might be characterized as urban-hipster-geek. A fan of Asian pop culture, he collected anime and manga, practiced tai chi, ate at Japanese gastropubs, and watched old kung fu movies like The New One-Armed Swordsman , a 1971 classic of the genre. Kurita was also a gamer—a Dungeons & Dragons enthusiast, he spent countless hours engaged in the fantasy role-playing game above a hobby shop in Brooklyn. His eclectic musical tastes ranged from '80s New Wave to obscure punk bands. And as an art buff, he expounded his ideas about French Impressionism as easily as he did those about ancient sculpture. His friends gently ribbed him for his habit of holding forth about works of art, coining his opinionated brand of monologue a "Kurita lecture."
After he graduated from high school, Kurita moved to the Midwest to attend the University of Wisconsin-Madison. It was there in the late '90s that he first showed distinct signs of strange behavior. In hostile phone calls to his mother, Valerie, he accused her of being responsible for what he suddenly considered a terrible childhood. Over the next few years, he was often consumed with resentment or narratives that only he understood. One time he told his mother—a longtime editor and writer for crochet hobbyist publications—that he had fallen in love with a young woman who wore a crocheted sweater. Kurita insisted that his mother must know the young woman and demanded confirmation that they were "promised to each other from birth."
In his senior year, Kurita had a psychotic break. Valerie traveled to Wisconsin to bring him home, where he was admitted to St. Vincent's Hospital in lower Manhattan. Some of the psychiatrists who saw him initially thought he had schizoaffective disorder, a condition that includes symptoms of both schizophrenia and a mood disorder, such as depression or bipolar disorder. Eventually, however, he was diagnosed with schizophrenia. He was put on antipsychotic medication—Trilafon and Risperdal, and later Clozaril, a more powerful drug found to be effective in the most intractable cases of schizophrenia.
He would be hospitalized another 10 times in the ensuing years, always when he either stopped taking his medication or didn't take it as prescribed. As many of the therapists, social workers, and psychologists who treated Kurita would later attest, one of his central delusions was that he'd been sexually abused as a child by his father, Fumitaka, a retired choreographer known as Frank. He told psychologists that he was raped as a baby in his crib and that both of his parents repeatedly molested him during his infancy.
Despite his mental illness, Kurita experienced periods of stability and focus. Living once again with his parents on the Upper West Side, he decided to pursue a dream of becoming a sushi chef and got an apprenticeship to learn the culinary art. After his training, he landed a job as a sushi sous chef at the Manhattan office of Credit Suisse, the financial services firm. At the same time, however, tension was building at home. Kurita told friends his
mother was secretly destroying his property, hiding things like his guitar and PlayStation, and replacing his medication with herbal supplements. Friends believed that he was taking, at most, half of his daily prescription at the time of the murder because of a lapse in insurance coverage. His
sense of persecution became magnified.
On a midsummer night in 2010, Kurita, then 31, came home to his family's apartment after work and found his father making dinner. He stepped back outside and paced around the neighborhood, thinking about getting something to eat. Then he saw a man exiting a restaurant and striking his hands together. Kurita took that as a sign. He returned to the apartment, picked up a sushi knife that had been a gift from his father, and cut the 70-year-old man's throat, nearly decapitating him. Then Kurita slit his own wrist down to the tendon. His blood pooling, he called 911 and reported what had happened in a tone devoid of affect, as if he were reporting a traffic light malfunction. "I just killed my father, and I cut my wrist," he said.
"You, you...did you use a weapon on your father?" the dispatcher stammered.
"A knife," said Kurita.
"And you're bleeding from the wrist?"
An EMS technician got on the line, instructed Kurita to apply a cloth to his wound to control the bleeding until an ambulance arrived, and asked if he had any history of psychiatric illness. Kurita's voice leapt forward, sounding possessed for a moment with feral anxiety.
"Yes," he said.
Nearly two years later, the trial began in the case of People v. Julian Kurita. Kurita was charged with second-degree murder, and the state's case was that he knew what he was doing when he killed his father. His defense attorney, Norman Williams, mounted a vigorous argument to convince the jury that he should be found not criminally responsible due to severe mental illness—what's commonly known as an insanity defense.
One of several psychiatric experts Williams called was Kathy Yates, Ph.D., a psychologist and neuropsychology researcher at New York University whose role as an expert witness is to apply psychological research, theory, and methodology to a legal question. Yates had spent seven years working at the Kirby Forensic Psychiatric Center, a maximum-security hospital on New York's Wards Island that holds people judged not competent to stand trial as well as those who have been found too mentally ill to be criminally responsible. During her tenure there, she had evaluated around 350 people with severe mental illness. In the approximately 100 cases for which she had been an expert witness, she had been retained equally by the defense and the prosecution—a factor often cited as a reliable barometer of an expert's objectivity.
During her testimony, Yates recounted Kurita's history of profound delusions—the conviction that he was sexually abused as a child, that his parents were conspiring to torture him, and that he was being excluded from clandestine orgies taking place around New York. She underscored that every time he was hospitalized—including twice involuntarily when he was deemed to be dangerous to himself or others—it coincided with noncompliance in taking his medication, a fact that Williams would eventually bring to bear on the murder, when Kurita was also not taking his medication as prescribed. Asked whether Kurita had the capacity to appreciate the nature and consequence of the murder, Yates replied that she did not believe he did. "At the time that Julian Kurita killed his father," she testified, "he had come to one of two choices—he was either going to be tortured for the rest of his life, or he was going to take his [own] life."
The state then called William Barr, Ph.D., as an expert witness. The chief of neuropsychology at New York University's School of Medicine, Barr specializes in epilepsy, concussion, and traumatic brain injury—he has served as a neuropsychological consultant to sports teams, including the New York Jets and New York Islanders, and he edited a diagnostic guide to neurological problems associated with epilepsy. Barr, who declined to be interviewed for this article, first served as an expert witness in the mid '90s, in civil cases involving concussion and potential brain damage. Soon, though, he began working on criminal cases in which the defendant was pleading not guilty by reason of insanity. The vast majority of his work, approximately 100 cases, has been for the prosecution.
On the stand, Barr painted a far different picture of Kurita, describing him as compliant and engaging —qualities, he said, that were "noncharacteristic of paranoid schizophrenia," because most paranoid schizophrenics don't know whom they're talking to and whether that person is "really part of the whole paranoid delusional system." Based on the results of IQ and standard psychological tests he administered, Barr alleged that, while Kurita exhibited unusual symptoms, including persistent delusions, he did not fit the criteria for schizophrenia, and that the cluster of symptoms he presented could indicate rather that he was in remission from the disorder.
Barr aggressively worked toward discrediting the severity of Kurita's mental illness. During their interviews, he said, Kurita mentioned a place under Madison Square Garden called "church" where he believed "Star Wars porn" orgies were taking place, and from which he was excluded. The idea about church-based orgies had come up before: Yates had testified that during one of her interviews with Kurita, he was shown a picture of a white church and identified it as where the orgies took place. When Barr described the same delusion, he claimed it was evidence of elaboration and that the defendant was creating an "embellishment on the original theme" of sexual abuse. Barr claimed that delusions that appear quickly like this are a "classic sign" that somebody is "likely making up symptoms."
Barr would return to this line of argument over and over during his testimony: that while Kurita's "core delusion" of being sexually abused as a child may have been genuine, that delusion over time had come to encompass other sexual conspiracies and was proof of conscious embellishment. Kurita wasn't "malingering per se," Barr said, but he was "building upon the delusions," "increasing the story to have new details," and "adding on to the foundation of some basic psychiatric symptoms."
Barr also discredited Kurita's suicide attempt, arguing that despite the depth of the wound, the act was only a gesture, and he had had no intention of actually killing himself. "If he fully intended to end his life at this point," Barr said, "he could have simply stabbed himself in the abdomen or his own throat." Forced to acknowledge how deep the laceration was on Kurita's wrist, Barr said that the defendant probably underestimated how sharp the knife was. Even Kurita's account of what happened after he slit his wrist—going up to his room to bleed out, coming to consciousness 10 minutes later and feeling a "glimmer of hope," which prompted his call to 911—was framed as another example of deceit. Barr interpreted it as a rapidly changing mental state that suggested someone concocting his symptoms.
Barr's final remarks on the witness stand were executed for maximum impact. During redirect examination, the prosecutor asked if he thought it was likely the defendant was actually in remission at the time he killed his father. "Yes," Barr replied, adding that it was "definitely" possible for someone who had been diagnosed with paranoid schizophrenia to commit a crime independent of his mental illness.
Kurita's insanity defense was denied by the jury, and he was found guilty of second-degree murder. At his sentencing, Judge Charles Solomon, who presided over the case, expressed his own view. "I strongly believe," he said, "that the act that the defendant committed, on July 19 of 2010, was the direct result of mental illness. I don't think anyone who knows this case can ever dispute that." Applying the minimum mandatory sentence for the conviction, he sent Kurita to prison for 15 years to life.
Even Kurita's widowed mother, Valerie, who did not respond to requests to be interviewed for this story, was critical of the conclusions the jury seemed to have reached about her son, all but pointing a finger at Barr. "Is it common sense," she said at the sentencing, "to conclude that after 12 years of hospitalizations, recoveries, and relapses, hearing voices and having delusions, that he suddenly experienced a burst of clear thinking, fully knowing right from wrong, and in that moment killed his father?"
Forensic psychologists and psychiatrists have an ever-expanding reach in American jurisprudence, called to offer their opinions on everything from child custody and product liability cases to defendants' mental state at the time of a crime and likelihood of committing more crimes in the future. Courts have affirmed time and again that an expert witness's duty is not to the side that retains him or her but to the truth-finding mission of the court. This view is reinforced by professional bodies—the ethical guidelines of the American Academy of Psychiatry and the Law, for instance, stipulate that despite the adversarial nature of legal proceedings, psychologists "should adhere to the principle of honesty and strive for objectivity."
Even so, questions about experts' objectivity have been asked for nearly as long as they have appeared in court. "Undoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you," the English jurist Sir George Jessel wrote in an 1873 judicial opinion. "We constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them." The perception of bias among expert witnesses is particularly salient in the United States because of its adversarial legal system, in which experts are retained by the defense or prosecution—unlike much of Europe where they are appointed by the court, rendering their neutrality less suspect.
The high fees that forensic mental health experts can earn in the United States also contribute to doubts about their objectivity. Park Dietz, among the most high-
profile forensic psychiatrists in the country, was reported to have been paid $100,000 for his work on the trial of Andrea Yates, who drowned her five children. For a 200-page report on the mental competency of Elizabeth Smart's kidnapper, forensic psychiatrist Michael Welner charged the federal government $500,000. In part because of such payments, forensic experts have been disparaged as hired guns, whores, even "saxophones," as it's thought they can be manipulated by attorneys to play any tune.
Barr doesn't command such high rates—he has testified that he's paid a more modest industry standard of $175 to $200 an hour for his forensic work. His objectivity has been questioned, rather, because he is frequently retained by the prosecution in similar kinds of cases and delivers similar testimonies: A 2013 article in The New York Times called him "something of the go-to man for prosecutors when the mental health of a defendant is at issue," and noted that "his testimony follows an almost predictable pattern: Defendants are exaggerating a mental impairment and acted out of rage."
Barr first came to widespread attention in the 1999 trial of Andrew Goldstein, who pushed a young woman to her death in front of a New York City subway train. In a rebuttal to the defense's claim that Goldstein was psychotic at the time of the attack, Barr said that "people don't usually have brief psychotic episodes," and suggested that Goldstein displayed symptoms of attention deficit disorder rather than schizophrenia. Under cross-examination, Barr conceded that he hadn't read Goldstein's 3,500-page medical history, in which the defendant had been repeatedly diagnosed with schizophrenia at multiple hospitals over the course of a decade. The jury rejected Goldstein's insanity defense and found him guilty of second degree murder.
In the 2007 trial of Peter Braunstein, a writer who sexually assaulted a former colleague after posing as a firefighter to gain entry into her apartment, Barr testified that Braunstein was not really a paranoid schizophrenic, as the defense argued, and implied that he was faking or exaggerating his symptoms. He gave similar testimony in the 2012 trial of Portuguese fashion model Renato Seabra, who strangled and castrated his lover in a midtown Manhattan hotel. Hospitalized after the murder, Seabra was judged to be floridly psychotic by more than a dozen doctors. At his trial, Barr testified that Seabra was not, in fact, in the midst of a psychotic or manic episode at the time of the crime and was acting, knowingly, out of rage. Barr's opinion so closely echoed what he'd said in previous trials that Seabra's defense attorney asked if he had simply cut and pasted the statement.
Stanley Brodsky, a psychologist at the University of Alabama and director of the Witness Research Lab, which studies the credibility of mental health expert witnesses, concedes that so-called hired guns do exist, although not as many as the public may imagine. "When you speak to forensic psychologists around the country, most everybody has a story about a knee-jerk expert who comes up almost all the time for the prosecution or defense," he says. "Some people are easily overaffiliated with the side that retains them, but I'd say it's relatively infrequent. Most people who do this make a serious effort to do impartial evaluations and work to be objective."
In recent years, though, studies have demonstrated that even among the most presumably objective forensic experts, unconscious bias may hold sway. In a 2013 study published in Psychological Science , researchers from the University of Virginia and Sam Houston State University recruited more than 100 forensic psychologists and psychiatrists to assess the risk of sexually violent predators. Led to believe that they were working for either the prosecution or defense, they were asked to review standardized risk-assessment measures that are thought to all but eradicate room for interpretation. Yet their assessments indicated a strong allegiance to whichever party they thought had retained them.
"The error was systemic—it wasn't random," says Marcus Boccaccini, a coauthor of the study along with Daniel Murrie. "The tests that psychologists use in these cases should be minimally subjective, yet the disagreements were almost always in the direction that would suggest bias."
In a 2015 follow-up, Murrie and Boccaccini conducted a review of research on mental health evaluations by forensic experts. Citing multiple field studies in which experts, using standardized tools like the Psychopathy Checklist-Revised, evaluated violent sex offenders, the study again found evidence of what's known as adversarial allegiance—the tendency of an expert's opinions to drift toward the party retaining his or her services. It was an especially shocking finding given that the evaluations were based on ostensibly objective instruments and procedures. The researchers could not explain the drift, but posited it as having to do with the same hidden biases that affect human judgment and rationality in many other areas.
"We know that for both social and cognitive reasons, motivation shapes perception," Murrie says. "The role of the expert witness is complicated enough that there are both social forces and cognitive tasks in terms of all the data they're considering. So there's plenty of room here for well-known, fundamental biases."
More research is needed to understand the drift of opinion, but Brodsky contends that it's related to in-group bias—the well-established impulse for people to favor members of a group they're part of, as opposed to one they're not. "Experts often work for the same district attorneys or assistant district attorneys over and over again and develop a friendship and working relationship, and it's not unusual for that working relationship to have a subtle influence on their wanting to please the people they're working for," he explains. "I'm not someone who attributes malicious motives to people who testify over and over for one side. But there are very few people who ever acknowledge or think to themselves, I'm not being objective. Experts can be well meaning and sincere, and absolutely wrong."
Kurita's defense attorney, Williams, is blunt in his assessment of Barr. "He's a quack," he says. "His expertise is in sports medicine and the effects of concussion. He's not really forensic in the sense of dealing with people who commit a crime, yet he's become the darling of the New York County DA's office."
Williams also emphasizes that the standard for an insanity defense is so high in New York state that it's almost never met—in the nearly 6,000 murder cases completed statewide between 2003 and 2013, only seven defendants were found to be not responsible because of a mental disease or defect. Perhaps nothing Barr said really made a difference in Kurita's failure to meet that standard. Yet whether or not Barr's testimony had any ultimate bearing on the jury's decision, a question still remains as to whether he was influenced by adversarial allegiance—consciously or unconsciously—or whether his assessment was legitimately objective, or even factual.
Could Kurita, as Barr asserted, have consciously embellished his core belief of having been sexually abused? Ralph Hoffman, a psychiatrist at Yale-New Haven Hospital who treated people with schizophrenia for more than four decades, said in an interview before his death last winter that it is possible for delusions to grow more elaborate, even rapidly. Delusions, Hoffman pointed out, "are often autobiographical memories of events that occurred in the past that somehow become contaminated or mixed up with other kinds of stories or things that are going on in the world," and sometimes, additional delusions "can get layered in." And in contrast to Barr's claim that most paranoid schizophrenics don't know whom they're communicating with in real life, Hoffman said that even those experiencing overbearing delusions can have "a pretty clear sense of whom they're talking to."
Nobody can say for sure that Barr's testimony was influenced by a sense of loyalty to the prosecution. But if so, the most salient question may be about what prompts such loyalty—and what can protect against it. Over the past 40 years, piercing critiques and concerns about how forensic psychologists come to their conclusions have been met with better instruments, procedures, and methods intended to reinforce objectivity. Yet as the recent research on adversarial allegiance suggests, Brodksy says: "we still have a long way to go. People who do this kind of work need to bend over backwards and work extra hard to check and double check their findings and methods to ensure they're not being influenced, and not get so caught up with the easy narcissism that can come the way of expert witnesses. Some experts believe, 'I'm not going to be subject to any biases because I really am excellent at what I do.' But there's always potential for adversarial allegiance. It's powerful stuff."
Kurita is now serving the third year of his sentence at Clinton Correctional Facility, a maximum-security men's prison dubbed "Little Siberia" because of its cold, remote location in northernmost New York near the Canadian border. The facility captured national headlines last year when two convicted killers escaped, prompting a two-week manhunt. Since arriving at Clinton, Kurita has turned to religion, becoming more devout in his Buddhist practices. A lawyer currently representing Kurita's appeal, who asked not to be named because the case is pending, said she hopes it will be considered this year.
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