Art on Trial

Art Therapy in Capital Murder Cases

David E. Gussak

• Publisher: Columbia University Press
• Year: 2013
• eBook ISBN: 9780231534277
• Topic: Psychology
• Subtopic: History of Art
• Index: Psychology

A man kidnaps his two children, murders one, and attempts to kill the other. The prosecution seeks the death penalty, while the defense employs an unusual strategy to avoid the sentence. The defendant's attorneys turn to more than 100 examples of his artwork, created over many years, to determine whether he was mentally ill at the time he committed the crimes. Detailing an outstanding example of the use of forensic art therapy in a capital murder case, David Gussak, an art therapist contracted by the defense to analyze the images that were to be presented as evidence, recounts his findings and his testimony in court, as well as the future implications of his work for criminal proceedings.

Gussak describes the role of the art therapist as an expert witness in a murder case, the way to use art as evidence, and the conclusions and assessments that professionals can draw from a defendant's artworks. He examines the effectiveness of expert testimony as communicated by the prosecution, defense, and court, and weighs the moral, ethical, and legal consequences of relying on such evidence. For professionals and general readers, this gripping volume presents a convincing account of the ability of art to reflect a damaged and dangerous psyche. A leading text on an emerging field, Art on Trial demonstrates the practical applications of an innovative approach to clinical assessment and treatment.

PART I

ART AND THE MURDERER

A Case Study

1

HOW IT BEGAN

On November 1, 2006, I received a telephone call from an attorney named Lisa Peters. The purpose of her call was to ask if I would consider serving as a consultant for a capital murder case, with the possibility of providing testimony should it go to trial. She offered no information about the case—only that the defendant was on trial for murder and the state district attorney was going to seek the death penalty. The defense was investigating the possible history of a mental illness, and the defendant had a long history of creating his own artwork. I was intrigued.

Lisa Peters, attorney at law, had been practicing for Jackie Chief Law Offices since she became an attorney in 2003, after she attended “law school relatively later in life.” Before attending law school, she earned a bachelor’s degree and a master’s degree in art history. After traveling quite a bit and teaching in Japan and London, she worked as a substitute teacher, teaching English while pursuing her master’s degree. After finishing her degree, she realized that there were not a lot of employment opportunities for an art historian, so she decided to attend law school. It was there that she met Jackie Chief, who suggested that when she completed her education, she join her law firm.

Although she originally intended to pursue law that would allow her to advocate for hospital patients addressing end-of-life issues, once she began “taking more criminal law classes, I realized that was my home. I never looked back.” Although opposed to the death penalty in principle before working as a defense attorney, after a few years she became “deeply opposed to it on every level: politically, economically, but most of all, I just believe that every individual has worth and value, and that no one in our society, in our government, in our courtroom, has the right, the authority, or the moral authority to make a decision to end that person’s life.” Thus, during this case, Peters’s art background and strict opposition to the death penalty led to her decision to try to use an art therapist as a witness for the defense.

Shortly after Jackie Chief Law Office received the case—to defend a man accused of the murder of one of his children and attempted murder of his other child—Peters saw the defendant’s art. She was fascinated with the pieces: “[T]he moment I saw some of the works that he had done, I said ‘he’s an artist. We need to get an art therapist in here to talk with him.’ It was just an instant connection … this is going to help us tell the story.” Peters credits her background in art history in training her to look at images in a way “that maybe your average lawyer wouldn’t look at them.… I’m not claiming any special knowledge or anything, but I just think that experience caused me to look at some of the artwork … with that eye.” Previously, Peters had a vague notion of what art therapy is, learning about it in graduate school from a roommate’s friend who had hoped to pursue the profession. She then proposed the idea to Jackie Chief, the lead attorney in the case:

Jackie is an art lover and immediately saw the value of talking to someone who could connect the images that he was making with the psychology. She was on board with it right away, and said, “Okay, let’s see if we can find someone.” … [M]y experience level was fairly limited when this case came around, but Jackie’s experience is vast, and I don’t think that she had ever heard of anyone using an art therapist. At the time, you know, in the beginning, I don’t know that we ever thought that an art therapist could testify or [pause] we didn’t have a clear picture of the outcome, but we just immediately [saw] that it would be good to talk to an art therapist.

Peters indicated they were most interested in finding a therapist who had an academic focus rather than one who was in practice, anticipating that there might be some “expert witness testimony down the road.” Presumably, such an academic would be more versed in educating those who are unaware of the field; more used to supporting his or her research with facts, data, and scientific inquiry; and more comfortable speaking to a large audience. She had originally tried to contact some local art therapists, but “nobody wanted to touch it.” The case, locally and infamously renowned, “had a little bit of notoriety, and I think that was off-putting.”

After first speaking with the American Art Therapy Association, Peters was referred to an art therapist in Pennsylvania who was known as a forensic art therapist. Because of the nature of the case, however, the therapist with whom she spoke indicated that I might be a better candidate for such services. I was recommended because I had a history of working with aggressive and violent men, including prison inmates.

When Peters phoned me and told me about the case, I informed her that I had no experience with testifying in court. She stressed that this was not what was important; what was important was the experience I had, my professional history, and my ability to conduct an art-based assessment and evaluate the art. We ended the conversation with my intention to think it over, and I would respond via e-mail if I was interested. She did request that if I agreed, I was to include a copy of my vita and a “fee schedule” for my services.

Once the vita was received, she would submit it to the court, along with the fee schedule, to determine if her firm would be allowed to contract for my services. At this time, I did not know what went into this decision, and no further information was afforded. However, Peters later indicated that at this stage, in order to get approval for the funds for my services, the defense attorneys had to provide the judge with my qualifications and their justification for why these services were important to the case. Before hiring me, “[and] before we can make any arrangements to hire someone, we have to have permission from the courts, and that involves filing a petition with the judge, asking that the court appoint an expert and allocate money for payment.” Once the judge approved, I would be “hired as an expert witness.” Although this status could be, and would be, questioned in a criminal trial by the opposing counsel, from this point I was considered an expert witness. No formal hearing would be held, and the prosecutor was not involved in the decision; “this was all done ex parte.” However, the supreme court of the state in which this case would be tried follows the Criminal Rule that was “promulgated for the purpose of allowing to the appointment of counsel, and allocating funds in capital cases.” No additional specifics of the case were provided.

Later, lead counsel Jackie Chief informed me that the idea of involving an art therapist in this case was first discussed with the other “psychiatric experts”—a psychiatrist and a psychologist:

I wanted their opinion of doing it.… I didn’t want to get caught in a situation where I would bring an expert on board who was looking at this from what I perceive to be a relatively new field, and have my other experts then say “we think that this isn’t a valid basis for researching a conclusion, and we don’t want to be a part of it,” or something like that. They did not say that. We also talked to the client about it, and he was agreeable.

A week later, I e-mailed my vita and committed to providing my services if needed. I spoke with several colleagues about their experiences as expert witnesses, asked what I would have to do to prepare for this responsibility, and wondered what would be a suitable fee to charge. The more I thought about it, the more I considered this a valuable professional opportunity as well. I felt that I could be fairly competent in evaluating the art. I had been teaching projective assessment courses to psychology and art therapy students for a number of years and had been conducting assessments in my own prison studies for approximately 5 years (Gussak, 2004, 2006, 2007a, 2009). I believed that I had the necessary skills and aptitude. I had worked with violent people and knew my way around a prison, if it came to that.

What I did not realize was that this situation was still theoretical for me: I knew that the defendant was a murderer, but that was it; I did not think about the fact that I would be offering testimony that could potentially keep someone alive and that by testifying for the defense, I would potentially be taking sides in the case. It never occurred to me at the time to consider whether the defendant deserved to live after having committed his crimes. It was still academic to me. Despite a long history of being involved with several prisons in three states, two of which maintained the death penalty, I was never put in a position to strongly consider my stance. I just knew that this experience could be fascinating.

It was not until the spring of 2007 that I heard from Peters, indicating that the court had approved the use of my services by the defense team. Although it seemed like a lengthy delay, there were good reasons: “As excited as we were about exploring what these images might mean and how they might help us tell his story, there were other things that were more pressing … [and we had to] go through the process of getting approval from the court, the state, and things like that too.” She wrote that she would send me a contract and a confidentiality form to sign, along with some of the defendant’s images.

I contacted Jackie Chief’s office after I received the forms and asked if a stipulation could be made that although I would maintain confidentiality until the end of the case, I would be allowed to present and publish material on the case after it was completed. The attorneys assented, and changes were made to the forms. After I signed and returned them, I was sent a file that included a brief summary of the crime and a compact disc that contained about 100 art images. I was also provided with the name of the defendant, Kevin Ward, but I deliberately chose not to research him or the details of the crimes.

There was no information about a possible mental illness and no indication of other expert witnesses testifying for the defense. The images on the disc were not labeled, and no pertinent information about them was included. I was given the task of reviewing the images and coming up with a preliminary analysis if I believed that Ward had a mental illness, and specifying what that illness might be. I was to provide a verbal report on May 1, complete with an explanation and a justification for any conclusions I developed.

THE ART: THE INITIAL REVIEW

The introduction to this book stressed the advantage of having the opportunity to observe the artist create the art pieces and to ask questions during and after the session in order to develop a more accurate conclusion than could otherwise be obtained. This preference was not available yet; the only way I could protect the client from any erroneous label provided without substantial triangulation was to quantify my statements and make it clear that no conclusion could be finalized without additional information received directly from the artist.

Furthermore, there was an additional challenge: I was not provided with certain information that may have aided in the final assessment. There was no mention of the size of the pieces, no indication of how long it had taken to create them and when they had been completed, no hint about what materials had been used to create them, and no “artist statement.” Never have I been in a position to conduct an assessment with such little information. However, I did have some advantages based on my experience of reviewing many types of art over the years.

THE CHOICE OF MATERIALS

Although I was not provided with a summary of the materials that Kevin Ward had used to create the pieces, I was able to fairly easily assume the media. The choice of materials is important because their varying properties, as noted in chapter 2, can influence the way an image was completed and ultimately is viewed. It may even provide a glimpse of the artist’s temperament or cognitive abilities.

The properties of the materials used for a given art task may determine the ultimate affective, cognitive, or symbolic response to the finished piece (Lusebrink, 1990). Some materials are quite resistive and easily controlled; others are more fluid and less easy to manage (colored pencils as compared with watercolor paints). Some materials are more easily manipulated than others. Drawing with a pencil is obviously simpler than painting with oils or making prints. Art therapists can control the direction of a session by assigning a directive and the materials to be used. They are also aware that certain pathologies do not mix well with certain materials. Pathologies that may weaken a person’s orientation to reality, which may induce hallucinations or delusions, may not respond well to materials that elicit emotional or affective responses, such as watercolor or tempera paint.

To provide grounding and needed structure to someone who is at the moment experiencing a loosening of boundaries and cognitive disassociation, more resistive, easily controlled, and simple materials—such as colored pencils, oil pastels, or collage materials—may be introduced. Often, if an art therapist is not available to provide this direction, the client/artists may themselves instinctively know what may loosen their boundaries further and choose materials that are more grounding and structured—much like self-medicating. This is not to say that everyone who selects pencil and collage over finger paint, watercolor, and chalk pastel is doing so to avoid a loosening of boundaries, fragmentation, and pathology. However, in doing so, an artist may instinctively be deciding to focus primarily on cognitive processing and control over affective expression.

It is my experience that those with a mental illness, whether burgeoning or prominent, may gravitate toward more structured and simplistic materials in order to “keep a lid” on what is bothering them, to maintain a semblance of control when it seems to be slipping away. The mental illness sometimes may be too overwhelming, and even the act of trying to maintain control through structured materials and directives may result in a loosening of boundaries, a fragmentation within the seemingly controllable process. Such loosening within an art experience may be associated with the deterioration of the client’s own mental health experiences and control.

THE PORTFOLIO

My initial impression, on beginning to evaluate his work, was that Ward had some artistic background; he certainly demonstrated a talent for drawing. One of the first pieces on the disk reveals a certain playfulness with the materials and color (figure 1),^* with heavily layered oil and chalk pastels making a rather colorful, ambiguous composition that divides the page into thirds—the top and bottom thirds revel in bright colors, whereas the middle rectangle is drawn in black and white, displaying a martini glass–like shape on the left-hand side. Upon closer examination...

Table of contents

• Cover 
• Half title
• Title
• Copyright
• Contents 
• Preface
• Acknowledgments
• Introduction: Assessments, Art Therapy, and Forensics
• Part I. Art and the Murderer: A Case Study
• Part II. Defending the Art
• Part III. Analysis and Implications
• References
• Illustrations