The Daily Digest, 4/7/11

The case today presents a now-classic (and failed) attempt to use evidence of drug use and past head injuries as mitigating evidence in a capital case. In both of the defendant’s two retrials for sentencing, the jury sentenced the defendant to death.

Although a number of scholars, practitioners, and others have commented on the use of brain-damage evidence as a mitigating strategy, few have followed the outcomes in these cases. While defendants sometimes succeed in their claims for ineffective assistance of counsel for failing to investigate or introduce evidence of brain damage during capital sentencing, the question is what happens once the case is remanded. More often than not, the defendant is again sentenced to death on retrial or remand. The case today is one such example.

Mitigation, Capital Sentencing, PCP Use, Drug Use, Past Head Injuries

People v. Murtishaw, 247 P.3d 941 (Cal. 2011)
Defendant petitioned for a writ of habeas corpus after his convictions for first-degree murder were affirmed and his sentence of death on penalty retrial was affirmed. The petition was denied, and defendant appealed. The United States Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded for a second penalty retrial. On remand the defendant was again sentenced to death. Defendant appealed, and the Supreme Court of California in this case affirmed. During the penalty phase of the trial, the defendant presented expert testimony concerning his drug use (PCP), family history of mental disorders, and his combination of alcohol and PCP that the expert opined had a “synergistic effect” that could also explain defendant’s memory loss and aggressive behavior. The expert ultimately opined that, on the day of the shootings, defendant did not have “any … control over what he was doing, particularly given if PCP and alcohol [are] factored in.” A forensic psychologist also testified on defendant’s behalf about defendant’s family history of mental illness, and PCP induced psychosis that can persist for as long as two or three months after the drug is ingested. In addition to the family history of mental illness and his own substance abuse, defendant also had a history of head injuries from being hit over the head by a bottle of wine, falling off the back of a car, swimming into a pane of glass, and having a two-by-four board broken over his head. At least two of these incidents had rendered him unconscious, one of them for a day and a half. According to the expert, the effects of these head injuries may have enhanced the effect of any drugs that defendant took. In short, the expert believed defendant to have been mentally impaired at the time he committed the murders, because he was under the influence of alcohol and PCP and had suffered some brain damage as a result of his history of head injuries. After considering the defendants claims on appeal, including, inter alia his claims concerning the victim impact statements in the case and his claim that he was entitled to jury instructions that the jury had discretion to impose life without the possibility of parole even if the aggravating factors outweighed the mitigating ones, the court affirmed.

About Nita A. Farahany

Professor of Law and Philosophy, Professor of Genome Sciences and Policy
This entry was posted in Criminal, Neuroscience and tagged , , . Bookmark the permalink.

3 Responses to The Daily Digest, 4/7/11

  1. Charlie Rogers says:

    Smarter lawyers than I have written volumes on how to present a coherent defense in a capital case, but in a nutshell, the guilt/innocence themes and the penalty phase themes need to be congruent. Those themes need to inform the voir dire, the exercise of peremptory strikes, opening statements, evidence and closing arguments. Ideally, the mitigation – especially the drugged out brain damaged kind – should be front loaded in the guilt/innocence phase as evidence of diminished capacity, lack of premeditation or whatever. So the jury can reject that evidence as warranting an acquittal or reducing the degree of the offense but can later give it effect in determining the punishment. I also think it’s extremely important to back up the expert testimony with historical facts from lay witnesses – especially witnesses who have to confront what they have done to mess up the life of the accused.

    Our Kansas case was State v. Bradford, 34 P.2d434 (2001). My guy and his crime partner took off from Kansas City to be rap stars in Los Angeles. They were smoking PCP at all times relevant. Just west of Salina, KS they stopped for gas at an all night truck stop on the south side of I-70. As they left the truck stop, the arrow pointed right to go back east to KC, and straight to go west to Denver. Being whacked out, they didn’t see the arrow pointing left to Denver after they crossed the Interstate, and kept going north. The blacktop road turned into gravel, then to dirt which was really mud, since it had snowed a couple of days before and the snow had melted. They slid off the road into the ditch and were stuck. They walked back south to a farm house and stole a pickup truck from an outbuilding. They got the truck stuck when they went back to their car, so they went back to the farm house. They broke in to get the keys to a car which was in the outbuilding and in doing so woke up the young couple who lived there. It ended up being a particularly bloody double murder. Each defendant pointed at the other as being the triggerman; thank goodness there were separate trials.

    I can’t remember the name of our neurologist; he taught at the University of Kansas Medical Center in Kansas City. He had PET scan images showing a couple of lesions and some real issues with our guy’s amygdala. Our psychopharmacologist was Dr. Lee Evans, Dean of the School of Pharmacy at Auburn. Our client had been introduced to PCP at the age of 11 by his mother, a true addict who wanted somebody to get high with. The mother and other family members testified about their daily PCP use. Even a detective who lived in their neighborhood, who testified for the state in the penalty phase about what a bad guy our client was, backed up those facts.

    We presented the expert testimony at the guilt/innocence phase, which certainly let the jury know the connection between the brain damage and PCP use and the offenses. At the penalty phase we presented the family testimony to let the jury see that Virgil didn’t just wake up one day and say, “I want to be a PCP addict.” He really never had a choice.

    The jury was the best-educated I have ever seen; we had three PhD’s (all in something like Animal Science; Manhattan is a small town which is home to Kansas State University). Almost everyone on the jury had a college degree, a rarity in my experience. So critical thinking was not a major leap for them.

  2. @Charlie. Thanks for the thought. What do you think distinguishes the “well-presented” cases from the less well-presented? It sounds like jury selection is one aspect, but what else?

    Also, could you send me any information on the Manhattan,KS case?

  3. Charlie Rogers says:

    I agree that this type of mitigation is a “hard sell,” but it also works quite a bit of the time if well-presented. Of course, you have to select a jury which can accept and understand at least part of the science. I had a case in Manhattan, Kansas where testimony of brain dysfunction supported by neuroimaging and PCP addiction/psychosis/intoxication resulted in life verdicts in a particularly gruesome double murder. Our experts were a neurologist and a psychopharmacologist, and we used lay and family witnesses to put the whole PCP thing in context.

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