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Not Guilty by Reason of Psychopathy?
Elizabeth Holmes, indicted CEO of now-defunct Theranos, is apparently to going to mount an insanity defense in her federal fraud trial. Crazy clever, no? The standard she must meet is, as described by Noah Feldman, is
whether the defendant knew what she was doing, and whether she knew it was wrong.
Unlike some states, federal law does not permit irresistible impulse or substantial capacity defenses. It focuses solely on awareness of one’s act and whether those acts were known to be wrong. According to Feldman:
What would make this defense so difficult to prove is that, at least based on public reports, there appears to be plenty of evidence that Holmes sought to conceal not only the fact that the company’s devices didn’t work, but also the fact that she was lying about that. Ordinarily, prosecutors can show the jury that a defendant wasn’t insane under the federal definition by demonstrating consciousness of guilt. A defendant who has tried to hide her crimes must’ve known that she did something wrong. And if she knew she was doing something wrong, she wasn’t legally insane under the federal standard.
And herein lies an important point: even if you don’t see it as wrong to do something, you are not insane if you understand that most other people do. And that is the reason that psychopaths don’t have a “get out of jail free” card. A psychopath is a person who can easily flout social convention for their own preferences in ways that harm others to various degrees without hesitation or guilt–
The triarchic model[1] suggests that different conceptions of psychopathy emphasize three observable characteristics to various degrees. Analyses have been made with respect to the applicability of measurement tools such as the Psychopathy Checklist (PCL, PCL-R) and Psychopathic Personality Inventory (PPI) to this model.[1][4]
- Boldness. Low fear including stress-tolerance, toleration of unfamiliarity and danger, and high self-confidence and social assertiveness. The PCL-R measures this relatively poorly and mainly through Facet 1 of Factor 1. Similar to PPI Fearless dominance. May correspond to differences in the amygdala and other neurological systems associated with fear.[1][4]
- Disinhibition. Poor impulse control including problems with planning and foresight, lacking affect and urge control, demand for immediate gratification, and poor behavioral restraints. Similar to PCL-R Factor 2 and PPI Impulsive antisociality. May correspond to impairments in frontal lobesystems that are involved in such control.[1][4]
- Meanness. Lacking empathy and close attachments with others, disdain of close attachments, use of cruelty to gain empowerment, exploitative tendencies, defiance of authority, and destructive excitement seeking. The PCL-R in general is related to this but in particular some elements in Factor 1. Similar to PPI, but also includes elements of subscales in Impulsive antisociality.[1][4]
Not all psychopaths are criminals, but many of our most devastating criminals are psychopaths.
I am not a psychiatrist or a psychologist (but I did stay at a Holiday Inn at least once). But I am prepared to state that Elizabeth Holmes is a psychopath. And because I am not a psychiatrist or a psychologist there is no consequence for me diagnosing her from afar. It will become evident to the jury that Ms. Holmes is a psychopath, but it will apparently be asserted she was made so and has some mental damage that excuses her from punishment.
And if the jury is comprised of a bunch of Karens fearing COVID-19 more than “mere economic damage,” she just might get away with it. I hope the prosecution features some of those retirees that invested in her company to their great harm. “It’s only money” is a great slogan unless it was your bank account that was drained.
Remember psychopathy is different from delusional. Psychopaths don’t feel bad about what they are doing, but they know what they are doing and, when the possibility exists that they will be stopped from doing it, they take action to assure that they can continue to do it. That’s not insane, it’s evil.
Published in General
Yup.
I will be interested to watch the developments in this field in the coming years.
I can’t help thinking that there is a lot more to this than I’m seeing right now.
We run the risk of squelching projects like the Human Genome Project in our desire to “get Holmes.”
Sigh.
I ran machines in the 1970s that took dilute blood samples to run a variety of chemistries and hematological measures. It is easily conceivable that the light-based measuring devices could be refined to require smaller samples. The real problem is that there is no one measure or test for all the data they claimed their single device would generate. Samples are necessarily changed, diluted, or mixed with reagents for some tests but not others. Whole blood is no good for most chemical tests–serum (not plasma) is required. Spectrographic measures require different wavelengths, different conditions. That little drop of blood would have to be pulled in a lot of different directions. I think you could miniaturize some procedures in small devices or alternative methods. It was the utterly bogus claim that this could be done all at once with an impossibly small sample that should have (and did) raise red flags.
I’m pretty familiar with the particulars of the case, having read everything I can find about it. I don’t know if she’s crazy or if she’s a psychopath. But, unless she is, I have no doubt at all that she is a criminal.
She was very deliberate in her deception, and she was aggressive in the way she used lawyers and threats to prevent anyone from exposing it. I don’t think she acted alone, but I have no doubt that she was instrumental in a criminal conspiracy to defraud investors by pretending that she had a working product when she did not.
She set out to build a desktop appliance that could perform more than a hundred specific blood tests from a single tiny sample of blood. The small size of that sample was something she focused on; she had props specifically to emphasize that.
She claimed Theranos had such a device. In fact, the device Theranos had was capable of performing only a small number of tests, and those unreliably. So she actually had her people modify a commercial blood analyzer to use diluted blood, allowing her to run numerous tests on a small blood sample and pretend that it was being done on her desktop analyzer.
Unfortunately, even the modified commercial analyzer couldn’t reliably run its tests on the diluted blood samples, and so the test results were often wrong — dangerously wrong, in some cases: people were being given results that were simply incorrect, because they were being run on modified equipment and in unapproved ways.
She did this because she was desperate to get further funding, desperate to show results. So she faked results, lied to investors, lied to the media, and used lawyers to silence would-be whistle blowers. She fired those employees who expressed concern about what they were doing. She had technicians begin a test on one of her machines while a would-be investor was in the room, and then switch the testing to a commercial machine while the investor was being given a tour; after the tour, the investor would be shown the commercial results and told that they came from the non-functional Theranos machine.
I suspect that she believed that she could build what she said she would build, despite the challenges of developing so many automated tests vastly more sensitive than those already available. But she resorted to outright fraud in her efforts to get there.
Dr McCoy doesn’t even need to take ANY blood from the body, and he can still tell you EVERYTHING!
I understand what you are saying, but I remain skeptical about the charges.
I’m sorry. I think the story is probably more complicated than the way it has been described in the media.
So many tech companies have started out the same way–envisioning something they thought they could do.
Let’s look at it this in a different way for a second.
Suppose she believed for some reason that a breakthrough was near. Is it possible that she was simply buying time to protect her company and her investors using these charades?
The main reason I am skeptical is the number of people who had to participate in this deception were it clearly the intent of the company to defraud investors rather than buy time for the application to be developed in some way that would make money for the investors eventually. Were her developers deceiving her?
I don’t know. You may be right about the criminal intent. If so, then she’s clearly delusional and so are a lot of people she worked closely with, starting with her board of directors. Not to mention the SEC. Then that’s the case for the insanity defense: she had the manic-depressive personality disorder of a hard-core gambler.
I just think there are whopping gaps in the story so far. It simply doesn’t add up for me.
Didn’t she think that SHE was the one who would come up with the breakthrough? But it wasn’t really something that she actually knew all that much about. Perhaps including that the technology was still a long way off from it being even remotely feasible.
Marci, I wouldn’t be at all surprised if that was the case — that she honestly believed she was nearing the point of a breakthrough.
But that wouldn’t justify her robbing a bank to keep the company afloat, even if she planned to pay the bank back after the company became profitable. And that’s kind of what she did.
I admit that I have a soft spot for smart pretty women filled with passion and daring. I think her story is fascinating and extraordinarily entertaining, and I won’t feel bad if she manages to avoid prison. She probably didn’t kill anyone, after all, unless one or more of the patients whose results her company faked turned out to be seriously ill.
I’ve had one near brush in my life with someone like her, someone who was briefly famous for defrauding shareholders of tens of millions. They can be very compelling people who really believe in what they’re doing. Or they can be complete frauds, as in the case of the fellow I knew. And it’s really hard to tell the difference.
I don’t know the law with respect to this specific case, but something I used to discuss with criminal defendants with respect to the insanity defense is this: If found not-competent by reason of insanity, it is sometimes within the prosecutor’s authority to have you held at a mental health facility in order to restore your competency. I believe you could be held for the entirety of the maximum sentence. So, maybe not always the best way to avoid jail time.
Steven Pinker in his book, How the Mind Works, cites a child psychologist (whose name I can’t recall right now) who argues that a child’s personality is determined by:
50% hereditary
5% parental influence/home environment
45% your friends and peer group in school, neighborhood, sports teams, boy/girl scouts, church groups, etc.
Your friends growing up shape you more than your parents!
Only if the psychologist mentioned is correct. Not proven.
“Proven” is a pretty big word to use in any of the social or soft sciences. I think we should all bring a healthy skepticism to claims made in these fields.
Having said that, Mr. Blockchain’s comment is roughly in line with an assertion made by Charles Murray, who contends that, whatever the division between nature and nurture in shaping a child’s psychology, a significantly larger portion of the nurture component comes from influences outside of the immediate control of the parents. As a parent who attempted to be very deliberate in my child raising, and who spent a lot of time thinking about the influence I was likely to have on my children, it’s more than a little sobering to think that happenstance might have been a bigger factor in their growing up than I was. (Then again, we lived in a farm in a small rural community, we had no television and the children had no internet, and we schooled them at home, so perhaps our influence at least equaled other, exogenous factors.)
Main thing is, an assertion isn’t proof. That sounds like the kind of thing where 100 different studies reach 100 different conclusions.
Perhaps I see this kind of thing more often, because I seem to encounter a saddening number of people who might see a TV show where a husband beats his wife, and they conclude all husbands beat their wife, so therefore society is sick and evil. They can’t seem to comprehend that all that TV show proves, if anything at all, is that the writer(s) of the show might be sick and evil. And maybe the actors/actresses for going along with the writing…
This comment is a tangent inspired by the quoted comment above: Mrs Rodin from time to time will ask me what I think will happen in a show we are watching and I reply “depends on what the writer has decided will happen”.
Yes I often refer to “The Writers (not Powers) That Be.” And I find it particularly annoying when certain people I know online, claim something like a crappy episode of Star Trek: Discovery or Picard somehow proves how the real world actually works. Like, Captain So-And-So in episode Such-And-Such is evil, and he’s supposed to represent Trump, therefore Trump is evil.
My own version of “depends on what the writer has decided will happen” might be that the chances of something happening are either 0 or 100%, depending on whether or not it happens.
What she wanted to do is not possible with the present technology. She faked it and ruined some people who tried to warn others.
I hope you realize that the Human Genome Project was a government boondoggle run by James Watson who got undeserved credit for stealing Rosalind Franklin’s research. The human genome was deciphered by Craig Ventor using private technology. A good biography. https://www.amazon.com/Life-Decoded-My-Genome-ebook/dp/B000W969BI/
I’ve read that elsewhere too. But I find it hard to fathom. I don’t know the medical world, but I do know the financial world. The banks she dealt with are not stupid. They have independent analysts and researchers who would have picked up on it if it were truly an outlandish idea.
I have dipped into the Human Genome Project from time to time. My husband brought home the initial prospectus a long time ago. I run into descriptions of it from time to time in the business books I read.
I know you are a doctor–I’m sure you know more about it than I do. But I have always admired it. I’m sorry to hear that is was a disappointment.
Except she stayed away from banks. Her pitch was always to high net worth individuals and venture capital folks. Private equity does not rely on the usual financial bona fides of banking, regulated securities industry, or the scrutiny directed at public companies, She thus flew under the radar. It was, IMO, a part of her deliberate strategy. They were in a word mesmerized.
I was just thinking about that, that she must have raised capital privately. That said, the SEC was involved at some point, enough so that they became one of the entities questioning the company’s operations. The company raised $700 million. That’s a lot of money that was being accounted for by, I would think, well-informed people.
I keep wondering what the heck the company’s employees were doing for the years the company was in operation.
Apparently, a good deal of their work involved setting things up to fool investors.
Sorry, but I’ve learned to place no credence at all in the “they’re too smart for that” argument.
Not from what I can tell. The landscape is littered with failed projects that governments, banks, investors, corporations, rich people thought were going to make money and make them rich that failed dramatically. Been on the inside of a few myself.
There jobs. Which is basically what their bosses told them.
Like I said: working the fraud.
Most companies are fraud to some degree or another.
Don’t confuse the company with the Marketing Department. That’s the Marketing Department’s job.
not all ‘fraud’ is illegal
Its not illegal if you do not get caught or more precisely you do not go to jail. Basically as long as you get away with it you are all good. Example: The Clinton Foundation or Hunter Biden.
Newer examples might include The Lincoln Project and their ilk.