Daily Digest, 1/30/13, The Developing Brain

Let the fight over Graham begin.

Last term, in Miller, the United States Supreme Court held that, in addressing this complicated issue, policymakers can no longer prescribe mandatory life without parole sentences for juveniles, even for the most serious homicide offenses.

State v. Riley, 140 Conn.App. 1, 2013 WL 9883 (Conn.App. 2013).

The court says:

“The defendant’s sentence of 100 years imprisonment, functionally a sentence of life without the possibility of release, did not violate the Eighth Amendment.”

The defendant was sentenced to 100 years imprisonment. Although the sentence imposed was not mandatory, the defendant claims that, in order to comply with the logic underpinning the holding in Miller, he is entitled to a resentencing procedure in which the court will be required not only to consider his youth and any attendant deficiencies, but also to articulate on the record that it has done so. The defendant further claims that, if the court were again to impose a life without parole sentence, it must explain why such a severe sentence was appropriate despite his age. The court declined to adopt this interpretation of Miller, holding instead that the court exercised discretion in fashioning the defendant’s sentence, and was free to consider any mitigating evidence the defendant was able to marshal, including evidence pertaining to his age and maturity. Consequently, the court affirmed judgment of the trial court.

The dissent, was a lengthy homage to brain science in juvenile sentencing:

The dissent claims that Roper, Graham, and Miller, were “based on a body of science regarding the juvenile brain that the [Supreme Court] considered as reliable and authoritative.”

The dissent explains that the defendant “will die in prison without the sentencing court having taken into account the available science regarding the juvenile brain, and without any future review, based on that science, of the possibility of his having matured and rehabilitated himself.” He argues that this constitutes cruel and unusual punishment.

The dissent reads Miller as a requirement that the court do two things:

“(1) take into account—by presentation from the state or the defendant, or both—the factors that distinguish the juvenile brain from the adult brain regarding the juvenile’s diminished culpability and heightened capacity for change, and (2) take into account how those factors counsel against sentencing the juvenile irrevocably to die in prison.

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The Daily Digest, 1/18/2013, Automatism

Automatism vs. Insanity – Affirmative Defense or Negation of Mens Rea and Actus Reus?

While you read about automatism or unconsciousness in case books, you don’t often see them in judicial opinions. In the case today, the defendant argued that he committed sexual assault because of his CPS, which he should have been able to bring under an automatism defense, rather than within the confines of the insanity defense. Unfortunately for him, Michigan does not recognize a separate automatism defense.

Haskell v. Berghuis, No. 10–1432, 2013 WL 163965 (6th Cir. 2013)
Petitioner Craig Haskell (“Haskell”) seeks review of the denial of his Petition for Writ of Habeas Corpus. Haskell was convicted on August 15, 2003, by a jury in Livingston County, Michigan, which returned a verdict of “guilty but mentally ill” on four counts of first-degree criminal sexual conduct (“CSC”), one count of second-degree CSC, and aggravated domestic violence against Rae Russell (“Russell”), Haskell’s ex-girlfriend. Haskell was sentenced to concurrent prison terms, and he has exhausted his state habeas procedures. On separate appeal, the district court denied Haskell’s federal habeas petition, but granted a certificate of appealability (“COA”) on: (1) whether Haskell had a Due Process right to present an automatism defense; and (2) whether his attorneys’ representation was ineffective in violation of the Sixth Amendment.  The court affirmed the decision of the district court.

Haskell’s defense counsel pursued the insanity defense. They introduced his attending physician (from his institutionalization after committing the sexual assault), who testified that Haskell’s assault on Russell was brought on by a complex partial seizure (“CPS”). [CPS involves the temporal lobe of the brain and produces, among other issues, neuropsychiatric symptoms with no memory or awareness or appreciation of any behavior or surroundings during an episode or seizure].

Issue I: Haskell’s Automatism Defense
Haskell argued that his Due Process rights were violated because Michigan required the presentation of an automatism defense through the framework of its insanity statute. He contends that automatism is fundamentally distinguishable from insanity because it negates key elements of the criminal charge by “plac [ing] the individual in a state of unconsciousness or semiconsciousness.” Haskell alleges he was unconscious—and therefore unable to control or direct his actions—so could not form the actus reus and mens rea of the crimes for which he was charged.

The court found that, even assuming he had prevented from bringing this claim, he has since properly exhausted his claim. Additionally, Michigan does not recognize an independent automatism defense. Instead, “the Legislature has demonstrated its policy choice that evidence of mental incapacity short of insanity cannot be used to avoid or reduce criminal responsibility by negating specific intent.” Automatism, insofar as it concerns a neurological condition precluding Haskell from forming the requisite intent, is a defense reliant on mental capacity. Thus, Michigan law requires an automatism defense be raised within the statutory framework of the state’s insanity defense. Therefore, it was not unreasonable for Michigan courts to conclude that an automatism defense is not constitutionally required, or that its presentation outside the context of an insanity defense is not necessary as a matter of due process.

II. Ineffective Assistance of Counsel
Haskell claims that he was ineffectively assisted by counsel, because his counsel was not knowledgeable about CPS disorder, which was the basis for Haskell’s defense. The court rejects this claim, because counsel is not required to advocate a meritless position.

***** Useful additional info on the automatism defense*****

The court identified only five states that explicitly separate automatism and insanity defenses. People v. Martin, 197 P.2d 379, 383 (Cal.1948); State v. Caddell, 215 S.E.2d 348, 363 (N.C.1975); Jones v. State, 648 P.2d 1251, 1258 (Okla.Crim.Ct.App.1982); State v. Jenner, 451 N.W.2d710, 721 (S.D.1990); Fulcher v. State, 633 P.2d 142, 145–47 (Wyo.1981). Two of these states require a defendant to prove automatism by a preponderance of the evidence, as though it were any other affirmative defense. Caddell, 215 S.E.2d at 363; Fulcher, 633 P.2d at 147.

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Back by popular demand – the digest! Equitable Tolling

Back by popular demand is the daily digest of law and biosciences cases, particularly those related to criminal law.

The defense is still at it, but they aren’t having much luck with claims of equitable tolling based on poor memory from an earlier brain injury. This claim works sometimes, but it requires significantly more impairment (and usually one that occurs after the conviction) to prevail.

U.S. ex rel. Shafford v. Davis
2013 WL 139818 (N.D. Ill. 2013)

Defendant, Warren Shafford, filed a petition pursuant to 28 U.S.C. § 2254 to vacate his 2003 conviction for first degree murder. Section 2254 claims are generally subject to a one-year limitations period that runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Shafford’s last hope for saving his claims was the doctrine of equitable tolling. “[A habeas] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Some courts have held that a mental condition “so severe[ ]” that it “impair[s] [petitioner’s] ability … effectively to pursue legal relief,” can be the basis for equitable tolling.

Shafford introduced evidence of a cognitive impairment based on an earlier brain injury. In 1986, Shafford suffered abrain injury that “caused significant cognitive deficits,” of “uncertain” duration. In 1990, Shafford’s doctor said that Shafford’s memory and problem solving abilities had been “severely compromis [ed]” by the injury, but that his “condition [had] improved well” after rehabilitation. In 2003, Shafford told a pre-sentence investigator that he had short-term memory loss but his mental health was otherwise fine. A state psychiatrist who examined Shafford shortly thereafter, concluded that he “[had been] fit to stand trial … and [was] currently fit for sentencing.”

In short, the court found that there was “no evidence to suggest that Shafford’s mental impairment caused him to miss the deadline for filing his petition. Thus, the doctrine of equitable estoppel does not save his time-barred claims.”

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Law and Biosciences Fellowship Opportunity!

Duke Institute for Genome Sciences & Policy: Law and Biosciences Fellowship

Duke University invites applications for the 2013-2014 Fellowship Program at the Institute for Genome Sciences and Policy.


This fellowship is ideal for individuals who are interested in an academic or policy career working on issues in science and society, with a particular interest in the legal, ethical, and social implications of the biosciences. 

The Institute:

The Institute for Genome Science and Policy (IGSP) is an interdisciplinary institute at Duke designed to advance the biosciences and to study and inform their implications for science, health and society.

Through conferences, workshops, lectures, and education, the Institute promotes research, education and public outreach on the biosciences and their ethical, legal, and social implications for society sciences.  For more information, visit our website at http://www.genome.duke.edu. 

The Fellowship:

The Law and Biosciences Fellowship is a residential fellowship that provides an opportunity to become involved in the activities of the IGSP and the University, while pursuing independent scholarship at the intersection of biosciences and law.  To enable integration in the Duke community and to allow the fellow(s) to complete a significant body of independent scholarship, we prefer two-year terms, but will consider shorter term fellowships, as well.  We expect fellows to dedicate approximately one third to one half of their time to supporting the science and society activities of the IGSP, working with Nita A. Farahany, JD, Ph.D., while dedicating the other half of their time to independent research.  For the 2013-2014 fellowship, we will provide fellows with office space, a competitive stipend and benefits. Applicants should have a JD or other doctoral level degree (MD, PhD) in a relevant area.  A law degree is a significant advantage, but is not a requirement. 

The Application Process:

Applicants should submit a CV, contact information for three references, a writing sample, and a research proposal (in 2000 words or less) to Melissa Segal (melissa.segal@duke.edu) by February 15, 2013.  We will choose fellows based on demonstrated academic merit, likelihood of future success in academia or science policy, and on strength of their research proposals.  Decisions will be made by March 15, 2013.

Duke University is an equal opportunity/affirmative action employer.

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The Daily Digest, 6/6/2011

One of the most interesting claims using neurological evidence is withdrawal of a guilty plea, arguing the entry of that plea was involuntary or that the defendant lacked the competency to enter such a plea. This was a claim of which I was unaware before conducting an empirical study of behavioral science cases over a five-year time period.

The case today presents an example of such a claim. With a short memorandum opinion, the court rejects the claim on procedural grounds. But the entire basis of the petition for post-conviction relief was based on this claim.

Ronald Alan Hummell v. State of Montana, No. DA 10–0439, 2011 WL 2163010 (Supreme Court of Montana June 1, 2011)
Defendant pled guilty to felony DUI and his conviction was affirmed on appeal. He filed a petition for postconviction relief and now appeals that court’s denial of his petition. On direct appeal, Defendant argued he was entitled to a specialized neuropsychological evaluation and should have been allowed to withdraw his guilty plea because it was involuntary (due to his alleged neurological condition). The court on direct appeals rejected those arguments. He raised the same claims in a petition for postconviction relief, which the court found barred as a matter of law. Defendant now claims he received ineffective assistance of counsel on direct appeal, because defense counsel should have alleged his mental instability with regard to his guilty plea, and his competency to “deal with the complex reasoning that a plea hearing requires.” But Defendant failed to allege that any such deficiency satisfied the Strickland standard for IAC, and the court thereby rejected his arguments. The court affirmed his conviction and denial of postconviction petition for relief.

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The Daily Digest, 6/2/2011

The frontal lobe region of the brain has been implicated in executive functioning, planning, and premeditation. Individuals with neurological deficits, particularly in executive functioning, are more likely to act impulsively, without premeditation, and without anticipation of the consequences of their actions. It was in part these cognitive deficits that the United States Supreme Court cited in Atkins v. Virginia as a basis for finding the mentally retarded less culpable and therefore categorically exempt from the death penalty.

One of the most frequent uses of neurological and neuropsychological testing is to evaluate executive functioning in defendants charged with first-degree murder. The claim is that because of the Defendant’s limitations in executive functioning, they could not have formed the mental state necessary to commit first-degree murder. Interestingly, the neuropsychological testing introduced in the case today was by a court-appointed expert, who testified that the Defendant was unable to plan or premeditate his actions. The Defendant was nevertheless found guilty of first-degree murder.

Executive Function, Neurological Functioning, Mental State, First-Degree Murder
People v. Anthony Novoa, No. B221154, Not Reported in Cal.Rptr.3d, 2011 WL 1902695(Los Angeles County Super. Ct. No. BA324974) (May 20, 2011)

Defendant admitted at trial that he shot and killed the victim. The question for the jury was whether the killing was first-degree murder, second-degree murder, voluntary manslaughter or self-defense. The jury found the killing was first-degree murder, which the Defendant argues was reached because of prosecutorial misconduct during closing arguments. Under appointment by the court, a professor of psychiatry testified as an expert in neuropsychology. The expert, Dr. Charles Hinkin, conducted an evaluation of Defendant’s neurocognitive and neuropsychiatric functioning. He determined that Defendant had an IQ of 68, within the mentally retarded range. Defendant performed in the impaired range on tests measuring executive functioning, problem solving, sequencing and the ability to inhibit his behavior. According to Hinkin, “[The Defendant] demonstrated severe psychiatric dysfunction.” Asked how these deficits and disorders affect a person “in the real world in their everyday lives,” Hinkin provided the following assessment. “[P]eople with executive dysfunction have trouble planning. They have troubles anticipating what will happen … or how to solve things. Their problem solving is poor.” They also have trouble with inhibition, an inability “to rein themselves in;” they tend to be impulsive and are prone to “knee-jerk reactions;” they do things “on the spur of the moment without … thinking them through.” People with low IQ’s, Hinkin testified, “often misinterpret things. They don’t size up the situation…. They misinterpret other’s intentions.” The jury nevertheless found the Defendant guilty of first-degree murder. The Los Angeles Superior Court found that there was no prejudice from any prosecutorial misconduct, and affirmed the judgment.

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The Daily Digest, 5/27/11

Twice this year I have come across a case in which a juvenile offender has used evidence of his developing brain to challenge his transfer from the juvenile docket to adult court. In the case today, the defendant seems to have gained traction with that argument.

The defendant today argued that his transfer to adult court violated his liberty interest in being treated as a youthful offender. The Court agreed, finding a significant liberty interest in treating juveniles differently in the system. Relying upon the developing brain evidence in the U.S. Supreme Court’s decisions in Roper and Graham, the Court found that although a hearing wasn’t required before the initial transfer, the Defendant was entitled to a hearing in adult court before the transfer was finalized.

Developing Brain, Juveniles, Transfer to Adult Court
State v. B.B., No. 18481., 300 Conn. 748, 17 A.3d 30 (Conn. May 10, 2011)
Defendant, who was 16 years old at time of arrest, appealed from decision of the Superior Court granting state’s motion to transfer defendant’s case from youthful offender docket to regular criminal docket. At the age of 16, the Defendant was arrested and charged with one count of possession of a weapon in a motor vehicle. The Defendant was arraigned on the youthful offender docket and the trial court determined that there was probable cause for his arrest. Subsequently, the state moved to transfer the matter to the regular criminal docket pursuant to § 54–76c (b)(1). The defendant objected to the transfer and argued that due process entitled him to a hearing before his case could be transferred. The trial court granted the state’s motion to transfer the defendant’s case to the regular criminal docket, concluding that it did not have discretion pursuant to § 54–76c (b)(1), to deny the state’s motion to transfer. This appeal followed. The Defendant claimed that the trial court improperly granted the state’s motion to transfer because he has a liberty interest in his status as a defendant on the youthful offender docket, and due process therefore entitles him to a hearing prior to transfer of his case to the regular criminal docket. The Court agreed that the defendant has a liberty interest in his status as a defendant on the youthful offender docket, but found that the defendant’s due process right is satisfied by the requirement in § 54–76c (b) of a hearing before the court on the regular criminal docket prior to the finalization of the transfer. In so doing, the Court made special note of the fact that both the juvenile and youthful offender statutory schemes involve the administration of justice for young people, meaning people under the age of eighteen, and take an approach different from that taken for adults. Citing to both Roper v. Simmons, 543 U.S. 551 (2005), and Graham v. Florida, 130 S.Ct. 2011 (2010), it made reference to the “[D]evelopments in psychology and brain science [which] continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence.” Using these cases and the brain science for support, the Court found that “it would be extraordinary if § 54–76c (b) did not require the exercise of due process implied in the phrase ‘finalization of such transfer….’” It therefore concluded that § 54–76c (b) implicitly requires a hearing by the court on the regular criminal docket prior to finalization of a transfer of a case from the youthful offender docket. Since that hearing and the finalization had not yet occurred, the Court affirmed the judgment of the trial court.

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The Daily Digest, 5/26/11

The case today presents an interesting application of the developing brain theory in juveniles. The defendant, who was convicted of two counts of second degree murder and sentenced to two consecutive life sentences without the possibility of parole, sought to suppress his statements to police that were made after he was read his Miranda warnings. The defendant argued, inter alia, that his developing brain as a juvenile made him unable to think abstractly and thereby understand abstract concepts like Miranda rights. The trial court credited the testimony of an officer there when the Defendant’s Miranda warnings were read, over an expert psychologist who opined about the Defendant’s developing brain and the ability of juveniles to understand abstract concepts.

Juveniles, Miranda rights, Developing Brain
State v. Jacobs, 2011 WL 2020747 (5th Cir. 2011)
This matter is on remand from the Louisiana Supreme Court. The Court affirmed the defendant’s convictions and sentences. After his first trial in 1998, defendant, Defendant was convicted of first-degree murder and sentenced to death. On direct appeal, the Louisiana Supreme Court reversed defendant’s conviction and sentence and remanded the matter for a new trial. In the interim, Roper v. Simmons was decided. In response, the DA amended its indictment to reduce the charges against the defendant to two counts of second-degree murder, instead of one count of first-degree murder. Defendant was re-arraigned on the amended indictment and pled not guilty. After a five-day trial, defendant was found guilty as charged by a unanimous twelve-person jury. The trial court denied defendant’s motions for new trial and post verdict judgment of acquittal, and sentenced defendant to two consecutive life sentences at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant filed a motion to reconsider sentence, which was later denied. In his timely filed appeal, the defendant challenged his convictions and sentences. Among his assignments of error, the defendant also argued that the trial court ruled improperly at the suppression hearing regarding his statements to the police when questioned. At the suppression hearing, the defense called a licensed psychologist as an expert in forensic psychology and forensic neuropsychology. He testified that the adolescent brain is different from the adult brain and that the adolescent engages in very concrete thinking rather than abstract thinking. He opined that Miranda rights are abstract so a person must have the ability to think abstractly to understand those rights. The expert stated that he tested the defendant in 1998. Among other things, he assessed his cognitive and neuropsychological functioning. His IQ was 83, which is within the range for mental retardation. The expert also testified that defendant suffers with a type of brain dysfunction that made his ability to understand his rights more difficult so the expert opined that it was highly unlikely that the Defendant understood his rights. Nevertheless, the expert was not present that night so he could not definitively testify that defendant did not understand his rights. In reviewing a trial court’s ruling as to the admissibility of a confession, the court’s conclusions on the credibility of witnesses are entitled to the respect due those made by one who saw the witnesses and heard them testify. A trial court’s ruling will not be overturned on appeal unless it is unsupported by the evidence. In this case, a police lieutenant testified that defendant was advised of his Miranda rights, did not at any time ask for an attorney, nor indicate that he did not want to talk to the officers. The credibility of witnesses at a suppression hearing is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Based on the evidence, if the Court were to reach the merits, the Court would find no abuse of the trial court’s discretion in finding the lieutenant’s testimony more credible in this respect. The Court rejected this assignment of error, as well as the Defendant’s other assignments of error, and affirmed the convictions and sentence.

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The Daily Digest, 5/25/11

With the increase in neuroscience-based literature and educational opportunities directed to current and upcoming legal professionals, such as the upcoming ABA and AALS Neuroscience and Law webinar and the “Law & the Brain” course at Vanderbilt University Law School, individuals at all levels, with or without science backgrounds, have the opportunity to become aware of emerging neuroscience issues. The case today illustrates the results of just that. In the case today, regarding educational placement of a minor, the guardian ad litem of the child testified and recommended that the child be placed in public school rather than home school based on the knowledge she had gleaned from seminars she attended and literature she had come across regarding adolescent brain development. Although admittedly not an expert in the field of brain development, the trial court relied in part on her recommendation in ordering that the child be enrolled in public school. The court here affirms.

Public Versus Home Schooling, Brain Development Theory
In the Matter of Kurowski, 2011 WL 976509 (N.H. 2011).
Respondent, mother, appeals an order from the family court granting the request of the father of her child to compel enrollment of their child in public school. In his request, the father stated that his daughter was being home-schooled through a program that is affiliated with the mother’s church, and that the education, religion, and social environment is detrimental to his daughter’s welfare. He explained that the daughter is withdrawn and has difficulty integrating with others, and requested that she be placed in public school. To resolve such matters, the trial court appointed a “guardian ad litem” (GAL) to represent the daughter’s best interests and recommend changes to the current parenting plan. In opining to the trial court that the daughter should be placed in public school, the GAL testified that although she was not an expert on brain development, she had researched the subject of adolescent brain development and attended seminars, and had learned that the human brain undergoes tremendous changes during adolescence. She testified that the literature explains that “the repeated stimulation of brain connections causes areas of the brain to become strengthened, while not using areas of the brain causes them to wither away” and that this “to [her], implicates how a child should be spending their time.” The mother here argues on appeal that the trial court erred in ordering her daughter be placed in public school “based exclusively on the unqualified opinion testimony of the [GAL] who admitted she is not a brain expert . . . yet testified regarding adolescent brain development and [daughter’s] future educational needs.” Here, the court finds that the trial court did not err. The court reasoned that there is nothing to suggest that the trial court considered the GAL’s statements as those of a qualified expert (especially since she admitted to not being one), the trial court’s decision to place the child in public school was not based exclusively on the GAL’s testimony, and the foundation of GAL’s testimony was based upon more than just her adolescent brain development research.

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Webinar of Interest

Of interest to readers of the blog. The ABA (Section of Science & Technology Law of the American Bar Association) and AALS are co-sponsoring a Neuroscience and Law webinar series of interest. I’ll be speaking at the last one, on Neuroscience and Violence:

The hour and a half programs are at 12pm CST on Thursday, May 5th (Neuroscience and the Law: Memory and Lie Detection); Thursday, May 19th at 12pm CST (Neuroscience and the Law: Substance Dependence); Thursday, June 2nd at 12pm CST (Neuroscience and the Law: Competency Issues); and Thursday, June 16th at 12pm CST (Neuroscience and the Law: Violence).

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