Judicial Notebook

In December 1981, in upstate New York, high school senior Robie Drake shot and killed two classmates parked in an isolated "lover's lane" near a junkyard. The boy was shot and stabbed; the girl was shot and had bite marks on her breasts and a bruised rectum.

The prosecution alleged that the killings were intentional and sexually motivated. The defense claimed that Drake, who was in the habit of using abandoned cars for target practice, accidentally shot the couple and, in a panic, stabbed the young male victim to stop him from moaning as he lay dying.

At trial, where the only issue was the defendant's intent, the prosecution presented the purportedly expert testimony of a psychologist regarding what he described as "piquerism," a paraphilia in which sexual gratification is supposedly obtained by penetrating the body of another.

According to the psychologist's testimony, "Piquerists experience sexual gratification through any type of penetration of another person, and stab wounds, sniper activity, cutting and bite marks are evidence of such a condition."

"Piquerists," the psychologist testified, "often carry a 'murder kit' so that they can kill unsuspecting victims when the opportunity arises, and sniper activity at cars is usually involved." The psychologist also testified that "Drake was a piquerist, and the crime was a 'lust-type murder' based on the stab wounds, apparent sniper activity, bite marks on the breasts, indications of suckling on the breasts and the anal assault."

Given just a weekend to come up with a rebuttal expert, the defense counsel was unable to find a single authority who had heard of piquerism. Drake was convicted of two counts of murder and sentenced to 40 years to life in prison.

Drake repeatedly appealed the decision, but his conviction was routinely affirmed. He claimed that the psychologist who testified against him had misrepresented his credentials. The Appellate Division of New York's Supreme Court ultimately rejected Drake's appeal, finding that while the expert's credibility might have been adversely affected had the jurors known the truth about his credentials, no legal relief was warranted because nothing indicated that the prosecution was aware that he was misrepresenting his credentials.

Acting as his own attorney, Drake next took his appeal to the federal courts. In 2000, the U.S. District Court agreed with the state courts, holding that "There is no reasonable probability that the verdict would have been different had the evidence [of the expert's misrepresentations] been available to [Drake] and used by him to impeach the expert" (Drake v. Portuondo, 2000 U.S. Dist. LEXIS 20296).

Not until earlier this year did Drake finally convince a court that the psychologist's misrepresentations might require a new trial (see Drake v. Portuondo, 321 F.3d 338 [2003]). The U.S. Circuit Court of Appeals for the Second District took issue with the purportedly expert testimony, stating that "It is now clear that the expert's qualifications were largely perjured, and that the syndrome, dubbed 'piquerism' is referenced nowhere but in a true-crime paperback."

As the court explained: "As the prosecution now concedes, [he] performed no criminal profiling in the Los Angeles County Medical Examiner's Office. According to [his] supervisors there, he was employed as a lab assistant responsible for cleaning and maintaining the forensic lab. There seems to be no record that [he] was ever on the payroll of Northern Michigan University, where he claimed to be an adjunct professor. The Los Angeles County District Attorney's office has found no record of [him] testifying as an expert witness in a criminal proceeding..."

In ordering further proceedings in the case, the U.S. Court of Appeals emphasized that the state courts had erred in not permitting Drake to develop a factual record by which the courts could assess the controlling legal question: whether the prosecution knew or should have known that the psychologist's testimony was perjury.

While the outcome in Drake's case remains to be seen, the Court of Appeals decision has major implications for prosecutors who rely upon expert witnesses who exaggerate or falsify their credentials.

This has recently become an issue within the field of forensic psychology--to what extent are some psychologists presenting credentials in court purchased from vanity or mail-order boards (credentials sold with little or no scrutiny of credentials or competence) to pad their credentials.

The court's decision in this case should serve as a wake-up call not only to these and other experts who mislead the courts regarding their qualifications, but to prosecutors who present such "experts" without carefully vetting their résumés.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).