The Daily Digest, 4/26/11

Civil commitment proceedings seem to offer a significant loophole to due process guarantees. After serving a prison term, an individual can be found to be a sexually violent predator and serve indefinitely in a mental health facility (with annual “reviews” of that determination).

In the case today, the respondent-defendant was a juvenile when he committed his acts of sexual molestation. If the developing brain theory is true, it’s entirely possible if not plausible that his likelihood of recidivism will decline over time, as his frontal lobe matures. The mental health expert offered an opinion exactly consistent with that theory, but the jury nevertheless found that he met the definition of a SVP.

Another interesting finding by the court in the case today is that, because the proceedings are civil rather than criminal, there is no right to a competency determination in SVP proceedings.

SVP, Juveniles, Developing Brain Theory, Forcible Medication
In re Detention of Morgan, 2011 WL 1344592 (Wash. App. Div. 2011)
Defendant appeals a 2008 jury determination that he is a sexually violent predator (SVP) and his resulting civil commitment. At trial, the State’s expert explained his diagnosis of the Defendant as presently suffering from (1) paraphilia NOS (nonconsent); (2) pedophilia, sexually attracted to females, non-exclusive type; (3) antisocial personality disorder; and (4) schizophrenia. Defendant’s expert disagreed and testified that the Defendant’s brain had likely matured since his offenses, lowering his recidivism risk. The jury entered a verdict finding that the Defendant met the definition of an SVP. The court reviewed and found no error in response to the Defendant’s claims that an in-chambers review of forcibly medicating him for trial. The court also considered whether Defendant had a right to a competency hearing during SVP civil commitment proceedings and found he did not. The court held that due process does not require that a respondent be competent during any SVP proceedings, and that the Defendant’s procedural due process argument fails.

Posted in Civil, Neuroscience | Tagged , , , | Leave a comment

The Daily Digest, 4/25/11

In Schriro v. Landrigan, the United States Supreme Court granted certiorari on two questions: (1) Whether a defendant can knowingly and voluntarily waive his right to have mitigating evidence introduced on his behalf in a capital case, and (2) Whether a genetic predisposition to violence is mitigating. Deciding the first question in the affirmative, it did not reach, except in dicta, the second question.

In the case today, the court found that the defendant knowingly and voluntarily waived his right to have mitigating evidence introduced on his behalf. And that his “volatility,” from his brain trauma should not be “equated with mental incompetence to stand trial.” Finding no prejudice to the defendant for failing to order pre-trial competency screening, the court found the waiver knowing, and voluntary, and upheld both his conviction and sentence.

Competency, Waiver of Mitigating Evidence, Brain Damage
State v. Delahanty, 2011 WL 1327986 (Ariz. 2011)
Defendant was convicted of first-degree murder, attempted arson, conspiracy to commit first-degree murder, and solicitation to commit first-degree murder. He was sentenced to death for the murder and to prison terms for the other offenses. After conviction, both the defendant and the State waived a jury trial on aggravation. Shortly after the penalty phase began, the Defendant sought to waive presentation of mitigation. The trial judge appointed a psychologist, to determine whether the defendant was competent to do so. After receiving the expert report, the court concluded that the defendant had knowingly, intelligently, and voluntarily waived his right to present mitigation. The jury subsequently determined that he should be sentenced to death. The Defendant now claims that the Court should have ordered a competency prescreening before the state sough the death penalty. The State filed its notice of intent to seek the death penalty in September 2005. The trial court failed to order a competency prescreening, and the Defendant did not object or request one. He now claims that the court erred in not ordering a competency prescreening. Because the Defendant did not object below, he must show “both that fundamental error exists and that the error in his case caused him prejudice.” The Defendant cannot establish fundamental error. A competency hearing is required only if “on the basis of the facts and circumstances known to the trial judge, there was or should have been a good faith doubt about the defendant’s ability … to participate intelligently in the proceedings.” The critical inquiry is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” The record is replete with evidence that Defendant understood the proceedings against him and was able to assist in his own defense. He nonetheless contends that the trial court’s appointment of a psychologist in connection with his waiver of mitigation and the report of of another psychologist entered at sentencing on the non-capital counts raised a “bona fide doubt” as to his competence. The Court disagreed. Before ordering a psychological screening, the court made clear that it had no doubts about defendant’s ability to understand the proceedings, but simply wanted to make sure that he understood the consequences of the waiver. The psychologist concluded that the Defendant understood the consequences of waiving mitigation, and nothing in his report raised any doubt as to his competence. Nor does the sentencing expert’s report suggest a contrary conclusion. That expert opined that the Defendant suffered from physical trauma to the brain and that “brain damage of that nature reduces the ability of an individual to control impulsive violent urges.” Volatility, however, should not “be equated with mental incompetence to stand trial.” Accordingly, the Defendant has failed to establish fundamental error. The court likewise dismissed the defendants other contentions of error and affirmed both the conviction and sentences.

Posted in Criminal, Neuroscience | Tagged , , | Leave a comment

The Daily Digest, 4/20/11

Is the Government Targeting our Genomes?

I’ve reported previously on the claims by some private citizens that they are “targeted individuals” of government experiments. That case, and my knowledge of these claims to date was limited to targeting neurological functioning. As it turns out, some individuals also believe that the government is using satellites to target their genomes. In the case today, the Federal Court of Claims dismissed a complaint alleging the government is beaming our genomes to satellites in outer space, which precisely sequence our genetic code, and then beam back specific “genetic viruses.” I know that whole-genome sequencing is rapidly advancing, and that the “$1000 genome” is on the horizon. But it would be pretty amazing if we could remotely sequence genomes through satellites. It sounds like this could be a good sequel to GATTACA.

[A footnote: The Court found that facts in the case today so problematic that it dropped a footnote to say that by recounting the facts in the complaint, it was not making findings of fact, but citing to the complaint itself.]

Flores v. U.S., 2011 WL 1457142 (Fed.Cl.,2011)
Plaintiffs bring claims under the Federal Torts Claims Act (FTCA) claiming that the federal government is conducting a genetic study on private minority citizens by using advanced technology with a direct signal to satellites in outer space that can calculate the genetic code and then inflict specific genetic viruses to inflict severe pain and death on individual citizens. The Court found that it lacks subject matter jurisdiction over the claim that the government is using satellites to cause them sever pain, injury and death. To the extent that plaintiffs assert claims under the Eighth and Fourteenth Amendments, the Court found that those claims are also not within the Court’s jurisdiction. Plaintiffs allege that Sierra Medical Center failed to provide adequate medical care in violation of the Eighth and Fourteenth Amendments. The Court has jurisdiction over claims only when the provisions allegedly violated are money-mandating. Neither the Eighth nor Fourteenth Amendment is money-mandating. The Court therefore dismissed the complaint for lack of subject matter jurisdiction. Likewise, the Court found that
the Plaintiffs’ allegations are “fanciful at best,” so that transfer to another court was unnecessary and futile.

Posted in Neuroscience | Leave a comment

The Daily Digest, 4/19/11

The New York Times on Sunday ran a provocative op-ed co-authored by one of my colleagues at Vanderbilt, Nancy King. In that editorial, the authors call for reform to the endless process of habeas review, arguing that claims are reviewed, then re-reviewed again and again in a waste of judicial resources. The op-ed has touched off a hailstorm across the country.

The procedural review in the case today, a denial of a habeas petition, fits King’s characterization. The case today has gone up and down through a procedural maze, with 26 claims presented in this federal habeas petition.

One of the twenty-six claims raised dealt with ineffective assistance of counsel for failing to investigate or present a witness neuropsychologist, and failing to investigate and present evidence of organic brain disorder. The court characterized the first as trial strategy, within the sound discretion of trial counsel, and the second as a claim not previously raised and exhausted and therefore procedurally barred from further review.

Ineffective Assistance of Counsel, Habeas, Failure to Investigate, Failure to Call Expert Witness

Jones v. McNeil, 2011 WL 845884 (S.D.Fla. 2011)
Petitioner was convicted of two counts of first-degree murder, for which the jury recommended the death penalty. The presiding judge adopted those sentencing recommendations. As to each murder, the trial judge found four aggravating factors and nothing in mitigation. After numerous other appeals, this matter came before the United States District Court of the Southern District of Florida on petition for writ of habeas corpus. The petition raises twenty-six separate claims and sub-claims for habeas relief. The court denied each claim for habeas relief, and the Petition was denied. In his sixth claim for habeas relief, Petitioner claims that his counsel was ineffective for failing to investigate and present mitigation evidence that would have “resulted in a life recommendation from the jury.” His sub-claims include that his counsel failed to properly prepare experts and to present testimony of an expert neuropsychologist, and failed to investigate organic brain damage/fetal alcohol syndrome. Appellant’s trial counsel testified that he had appellant evaluated by six different experts: a neuropsychologist, a neurologist, and four psychologists. He then specifically chose to rely on two based on the quality and quantity of their work. Accordingly, as the trial court found, defense counsel’s decisions regarding which experts should testify was both reasonable and strategic in nature, and he cannot now be deemed ineffective for failing to call additional mental health witnesses to testify. On Petitioner’s other sub-claim that “[t]rial counsel also unreasonably failed to investigate and pursue the issue of organic brain damage and the concomitant effects of extensive alcohol usage by [Petitioner’s] mother while she was pregnant” the Court found that Petitioner did not argue this claim before the Florida Supreme Court, so that claim is unexhausted and procedurally barred from further review.

Posted in Neuroscience | Tagged , , , | Leave a comment

The Daily Digest, 4/18/11

Neuropsychologists v. Neuropsychiatrists
The discussion by the majority and dissenting opinions in the case today about neuropsychological versus neuropsychiatric testing reveals just how detailed and technical the debates over cognitive neuroscience are becoming in legal cases. The dissent explains in considerable detail the type of neurological testing that the plaintiff in this case, a car-accident victim, already underwent. The dissent characterizes the defendants’ motion to compel the plaintiff the appear for a neuropsychological evaluation as a harassing tactic, and clearly unwarranted because the plaintiff’s cognitive deficits so clearly stemmed from the head injury suffered.

The majority, however, buys the distinction the defendant claims arises between neuropsychological and neuropsychiatric testing, and the need to have both to accurately establish damages in this case. The defendants claim that neuropsychological testing “would quantify the type of brain injury and the degree of cognitive dysfunction” related to possible damage of the brain. By contrast, they argue that neuropsychiatric testing focuses on emotional and psychiatric functioning. The court ultimately grants the motion to allow the defendants to establish the degree of cognitive impairment attributable to the head injuries sustained.

The dissent seems right to me on this one, but weigh in on the comments below. Are both neuropsychological and neuropsychiatric testing needed? In both civil and criminal cases? When do you need both?

“Objective” Evidence, Tort Cases, Neuropsychiatrists vs. Neuropsychologists
Chaudhary v. Gold, 2011 WL 1364432, 2011 N.Y. Slip Op. 02929 (Sup. Ct. N.Y. 2011)
This appeal followed an order denying Defendant’s motion to compel the Plaintiff to appear at a neuropsychological examination by an expert designated by the defendant or to preclude Plaintiff from presenting evidence of damages at the time of trial. The court reversed the order and granted the defendants’ motion, directing the plaintiff to appear for said examination. The court found that the trial court erred in denying defendants’ motion to compel plaintiff to submit to a neuropsychological examination. This suit arose from a motor vehicle accident, when plaintiff’s taxi was struck from behind by a truck being driven by defendant. Plaintiff alleges that as a result of the collision, his head struck the car’s windshield, causing him to suffer traumatic brain injury. The primary diagnosis, upon admission to the emergency room, was left frontal lobe contusion. An initial CT scan showed a questionable hyperdense focus in the left frontal lobe but a follow-up CT showed no areas of abnormal attenuation and no evidence of acute intracranial hemorrhage, midline shift or mass effect. Plaintiff was subject to neurological exam by two different experts. Nevertheless, over a vigorous dissent, the court found that Defendants established significant differences between a neuropsychiatric examination (already conducted by defense expert Fayer) and the proposed neuropsychological examination. Defendants asserted that a neuropsychologist utilizes a different methodology and would administer a standardized battery of psychological tests that would quantify the type of brain injury and the degree of cognitive dysfunction related to possible damage of the brain. By contrast, a neuropsychiatrist focuses on emotional and psychiatric functioning. In support of their motion, defendants submitted an affidavit from a neuropsychologist. That expert stated that his examination of plaintiff would quantify the type of brain injury that he allegedly suffers and would help distinguish between what is functional (i.e., psychiatric depression) or organic (i.e., cognitive dysfunction). He further stated that a neuropsychological examination would provide quantitative data about plaintiff’s functioning, such as his IQ score and memory test score. The expert also stated that his testing could aid in forming an ultimate opinion as to the nature and cause of plaintiff’s injury as well as to any symptom amplification or exaggeration, an essential defense for defendant. Having found that defendants demonstrated that a neuropsychological examination is material and necessary in order to defend against plaintiff’s claim that he has suffered head injuries with cognitive impairment, the court reversed.

Posted in Neuroscience | Tagged , , , | Leave a comment

The Daily Digest, 4/14/11

I’ve noticed a recent trend of cases reporting a defendant’s use of a past or recent head injury to challenge the improvident waiver of his rights — e.g. waiving the right to a jury trial, the right to remain silent, challenging the providence of a guilty plea, etc. The results, so far, are mixed. Comment below about your experience or awareness of using evidence of a head injury to challenge the waiver of procedural rights.

The case today follows this trend. Although decided in December of 2010, it has just been published in Westlaw. The defendant claims that due to a head injury, he did not knowingly and intelligently waive his right to a jury trial because he couldn’t understand the implications of doing so.

His third assignment of error and the court’s response tracks well to the post yesterday here by Ken Murray (Federal Public Defender in Arizona). The defendant claims that his 93-year sentence was excessive and in violation of the U.S. and Louisiana Constitution, in large part because of the head injury he suffered years prior. The court affirmed the sentence and found that the aggravated nature of his crimes outweighed any mitigating effect the evidence might have had.

Head Injuries, Waiver of Rights, Cruel and Unusual Punishment
State v. Pecot, 54 So.3d 1174 (La. Ct. App. 2010)
Following a bench trial, defendant was convicted in on four counts of simple rape, three counts of indecent behavior with juveniles, two counts of sexual battery and one count of aggravated crime against nature. Defendant appealed, and the court affirmed and remanded with instructions. Defendant makes three assignments of error (two of which, related to his head injuries, are elaborated upon here). First, that he did not knowingly and intelligently waive his right to a jury trial; second, challenging the exclusion of testimony under the Rape Shield Law, and; third, that his sentence of 93 years at hard labor was constitutionally excessive. In his first assignment of error, defendant argues that he did not knowingly and intelligently waive his right to a jury trial, because he is essentially illiterate. He claims that a head injury he sustained years ago affected his cognitive abilities and that, although he told the trial judge he had obtained a G.E.D., he actually had another person take the test for him. The Court entered into a pre-trial colloquy with defendant, where he demonstrated sufficient cognitive ability to make a valid jury waiver. Additionally, prior to commencement of trial, defense counsel informed the trial court that he thoroughly discussed the matter with defendant and that defendant wished to waive his right to trial by jury in this case. Defense counsel further indicated that, based on his discussion with defendant, he believed waiving a jury was appropriate for him to do and that defendant was knowingly and intelligently waiving his right to trial by jury. On appeal, the court finds that the trial judge fully explained to defendant what his right to a jury trial entailed, and what it would mean to waive that right. Defendant indicated at each step that he understood what the judge told him. In his third assignment of error, defendant argues that his sentence of 93 years was excessive in violation of the United States and Louisiana Constitutions. The Court found that though defendant had suffered a head injury that left him in a coma for three months, was functionally illiterate and had the mental abilities below those of a 14-year-old, there was evidence that defendant systematically preyed on troubled teens and plied them with alcohol in order to sexually exploit them, that the victims were emotionally devastated and that defendant was aware he was socializing with underage girls, and the individual sentences were comparable to other sentences imposed under similar facts and circumstances. Consequently, on appeal the court found no abuse of discretion by the trial court in assigning the sentence and that the sentence was no unconstitutional under the U.S. or Louisiana constitutions.

Posted in Criminal, Neuroscience | Tagged , , , | Leave a comment

The Daily Digest, 4/13/11

[Note from Blog Editor Nita Farahany — I’m pleased to welcome and introduce guest contributor and author of this post, Ken Murray, Federal Public Defender in Arizona, Capital Habeas Unit]

Offense Heinousness, Double-Edged Sword of Brain Damage
“If the evidence of an organic medical explanation for [defendant’s] behavior . . . did not persuade [the jury] to impose a lesser sentence, it was not unreasonable for the state court to decide that the additional evidence probably would not have produced a different verdict.”

Today’s case involves a capital defendant who had committed a brutal double murder and had a history of violent criminal behavior. In an attempt to establish lack of intent to kill, the defense presented evidence of defendant’s brain damage during the guilt phase of the trial. When that defense failed, defense counsel presented mitigating evidence at the penalty phase regarding the defendant’s positive prison record and his caring family. In the end, the courts concluded that if the jury did not accept the evidence of brain damage as being sufficient to find reduced culpability on the part of the defendant, any additional evidence regarding family dysfunction and abuse would not convince the jury that a sentence less than death was appropriate.

In death penalty cases, defense counsel seek to present evidence to convince the jury that the defendant either did not commit the capital offense or, if he did, that he is not sufficiently culpable to warrant a sentence of death. Effective counsel must be cognizant of the need to make the trial or guilt phase defense consistent with the penalty phase defense. Where, as in this case, the strongest mitigation evidence is “front loaded” into the trial phase, it must be presented in a manner that allows counsel to present a coherent case for life at the penalty phase. If it is not accepted by the jury, there is little chance to prevail at the penalty phase.

The critical issue in this case is how the defense used the neuroscience evidence of brain damage. In attempting to establish diminished capacity for the double murder, the defense failed to address what proved to be the overriding concern of the reviewing courts – the brutal nature of the defendant’s criminal history and the horrendous circumstances of the double homicide. Once the jury decided that the evidence of brain damage did not justify a sentence less than death, the subsequent penalty phase theory of presenting evidence of a caring family and positive prison record had little chance to succeed. If the jury was not convinced that the defendant’s “brain made him do it,” no amount of family dysfunction and environmental mitigation would likely convince the jury that the defendant was not simply a dangerous person from whom society must be protected.

The decision to present the evidence of brain damage up front, and the failure to fully investigate and present the defendant’s horrendous social history in order to provide context to the meaning and effect of the defendant’s brain damage and cognitive deficiencies, did not provide a compelling mitigation case for life to the jury. Instead, it provided the double-edged sword that the jury and the courts used to establish dangerousness as a justification for imposing death.

IAC, Brutality of Offenses, Failed Mitigation

Samayoa v. Ayers, 2011 WL 1226375 (9th Cir. 2011)
The defendant was charged and convicted of capital murder of two victims, during the course of a burglary. In his federal habeas petition, the defendant claims that the state court’s decision rejecting the ineffective assistance of counsel claim is contrary to or an unreasonable application of United States Supreme Court law. The Ninth Circuit found that, in light of the heinousness of the offense, the defendant suffered no prejudice and affirmed the decision below. Trial-phase testimony included detailed descriptions of the injuries to the victims including their smashed faces, crushed skulls, and brains penetrated by bone fragments. In addition, the jury heard testimony regarding the defendant’s past record including three separate imprisonments, the burglary and the rape of a disabled woman nine years before the current homicide, and an assault with a deadly weapon on another woman five years later. The defendant conceded guilt for the double homicide and burglary, but argued that as a result of brain damage, he lacked the intent to kill his victims. The defendant presented evidence of diminished capacity from four psychologists who described the defendant as suffering from organic brain damage. The defense experts opined that the defendant suffered from brain damage of the left hemisphere of the brain, including damage to the frontal, temporal and parietal lobes. The experts offered various descriptions of how such damage might affect an individual, including inability to control one’s conduct or actions, aggressive behavior, rage reactions in stressful situations, poor impulse control, and lack of awareness. They also testified that the behavior of the defendant at the time of the homicides was consistent with the type of brain damage suffered by the defendant. The diminished capacity defense failed. The jury found the defendant guilty of the homicides, the burglary, and the special circumstances of multiple murder and murder during the course of a burglary.

During the penalty phase that followed, the prosecution presented detailed aggravation evidence, followed by additional mitigating evidence by the defense, including testimony of corrections officers indicating that the defendant worked well in the prison setting. In denying the defendant’s motion to reduce his sentence, the trial court concluded “that the death penalty was ‘the only fitting response’ to the ‘unspeakable crimes’ and that aggravation ‘vastly outweigh [ed]’ mitigation.”

On direct appeal, the California Supreme Court upheld both the conviction and sentence. In his state post-conviction proceedings, the defendant argued that his counsel was ineffective for failing to investigate and present additional mitigating evidence. During his federal habeas proceedings, defendant presented evidence that the family situation was not as positive as had been presented at the penalty phase. The district court assumed, without ruling, that trial counsel had performed deficiently but denied relief because the defendant could not establish that such deficient performance was prejudicial. In reaching this conclusion, the district court pointed to the brutality and extreme violent nature of the double murder and the defendant’s dangerous criminal history. The court concluded that even if the additional mitigation had been presented to the jury, there was no reasonable possibility that one of the jurors would have voted for life. On appeal, a majority of the three judge panel agreed. As did the district court, the majority of the Ninth Circuit panel opined, without holding, that trial counsel performed deficiently but concluded that the defendant could not establish prejudice. It noted noted that “[t]he evidence of Samayoa’s childhood does not paint a pretty picture, but it is not so dramatic or unusual that it would likely carry the day for Samayoa given that his much more probative brain injury evidence did not.” The mitigating evidence of organic brain damage presented at trial, it held, was much more significant than the evidence of the family dysfunction that was developed and presented later.

Posted in Criminal, Neuroscience | Tagged , , | Leave a comment

The Daily Digest, 4/12/11

[Note from Blog Editor Nita Farahany — I’m pleased to welcome and introduce guest contributor and author of this post, Stephanie Kostiuk, currently a 2L at Vanderbilt Law School]

Mental/Emotional Age and Developing Brain Theory
This blog has previously discussed the developing brain theory in the context of 8th Amendment challenges to punishment. As seen, here , here, and here, in novel applications of the developing brain theory, juvenile defendants have had little relative success in extending the holding of Roper v. Simmons or Graham v. Florida.

The case today presents a novel, and yet also unsuccessful, theory by a criminal defendant seeking to fit within the ambit of Roper. Here, the Petitioner was not a juvenile (by chronological age) at the time he committed the crimes, but nevertheless claims that his developmental age–based on his mental and emotional development–puts him in the same category of culpability of someone less than eighteen years. The court was quick to deny him relief on the basis of this theory, reminding the petitioner that Roper is limited to defendants whose chronological age is below eighteen.

Mental/Emotional Age, Developing Brain Theory, 8th Amendment Challenge to Sentence
Stephens v. McNeil, 2011 WL 939808 (M.D. Fla. 2011)
Petitioner was convicted of first-degree murder, kidnapping and multiple counts of armed robbery, and was sentenced to death. Petitioner appeals the state court’s holding denying his habeas petition, arguing that because he suffers from brain damage and mental impairment, his sentence of death is cruel and unusual punishment. Petitioner cites Roper v. Simmons, contending that since his mental and emotional age is less than eighteen years, he is in the category of persons for whom the Supreme Court found it was unconstitutional to impose the death penalty. In denying him habeas relief, the state court emphasized that Roper only prohibits the execution of defendants whose chronological age is below eighteen. Since petitioner was twenty-three at the time he committed the crimes, the court found that Roper did not apply. Here, the district court also denies petitioner relief, concluding that the state court’s adjudication was not contrary to clearly established federal law and did not involve an unreasonable application of federal law. In doing so, the court noted that the expert testimony petitioner relied on did not necessarily establish that petitioner had brain damage, nor that he suffered from any major mental defect or deficiency. Rather, his most significant diagnosis was “borderline personality disorder.”

Posted in Criminal, Neuroscience | Tagged , , | Leave a comment

The Daily Digest, 4/11/11

The case today has a really fascinating discussion of (in)voluntary intoxication. Can alcoholism, itself, satisfy the standard for a mental disease or defect for the insanity defense? In other words, can a defendant prevail on the claim that his mental disease or defect that caused him to drink be alcoholism itself?

The Court says: “for the insanity defense to be available, the intoxication must have been beyond the defendant’s control: if the defendant can resist taking the first sip, then it is not available to him.

Would a genetic predisposition suffice for the Court to find that the intoxication was beyond the defendant’s control? Or, do Courts subscribe to the rational choice model that says, if you have a genetic predisposition but can resist taking the first sip, then you have a responsibility to do so. The way the Court has described it here, taking the first sip of alcohol that led to alcoholism is the the culpable act, rather than the sip that preceded the criminal action. This is much like the Decina line of cases concerning epilepsy — once you know you have epilepsy, you are responsible for preventing danger from your condition. So, too, here. Once you know you are predisposed to alcoholism, you might have a responsible to prevent the danger that could arise from your condition.

Alcoholism, Insanity, PTSD
U.S. v. Scott, 2011 WL 1327033 (E.D.Wash. 2011)
The Defendant, after being charged with an convicted of two counts of assault on federal employees, moved for a judgment of acquittal. The Court denied defendant’s motions for a judgment of acquittal. Defendant was brought to the Veterans Affairs Medical Center for excessive alcohol consumption. While there, he assaulted a nurse. Among the most heavily litigated issues at trial was the admissibility of expert testimony at trial concerning defendant’s claim for temporary insanity. Because voluntary intoxication is not a cognizable legal defense to a general intent crime of assault, defendant sought to prove that his PTSD drove him to become involuntarily intoxicated, which in turn rendered him temporarily insane at the time of the offense or otherwise unable to formulate the general intent necessary to assault. To prove this theory, the defense team retained three experts. After three Daubert evidentiary hearings to determine the admissibility of this expert testimony, the Court allowed testimony from two of the experts but not the third. The jury instructions included the following statement:

“[I]f the Defendant claims he became insane because he voluntarily ingested alcohol, the insanity defense is not available to him. If, on the other hand, he claims that a severe mental disease or defect caused him to become involuntarily intoxicated, the defense is not taken from him.”

During deliberations, the jury submitted a note asking whether substance abuse or alcoholism itself could be a severe mental disease or defect that could cause a person to involuntarily consume alcohol. The Court responded “No.” The defendant now claims that the trial court erred in response to the jury question. The Court held that for the insanity defense to be available, the intoxication must have been beyond the defendant’s control: if the defendant can resist taking the first sip, then it is not available to him. The jury’s legal question was properly answered in the negative. The crux of the jury’s question was whether alcoholism, by itself, can cause a person to involuntarily consume alcohol for insanity purposes. The case law is entirely clear that it cannot. It is well-settled that criminal responsibility attaches to voluntary alcoholic ingestion. Rather, courts have been unwilling to conclude that a defendant’s chronic alcoholism, by itself, compelled him to drink involuntarily, such that it could cause a condition amounting to insanity. The Court recognizes that the Ninth Circuit and Supreme Court case law discussing the voluntariness of a chronic alcoholic’s criminal acts is several decades old. But it appears to be binding precedent. Indeed, the Court was unable to find any recent authority addressing this exact issue: whether for purposes of the insanity defense, Substance Abuse Disorder, now a DSM–IV diagnosis, is a “severe mental disease or defect” that can cause a person to involuntarily consume alcohol to the point of insanity. It may be that the medical landscape has changed such that Substance Abuse Disorder is now known to cause involuntary intoxication. However, with the current binding precedent, and the utter absence of any evidence on this point at trial, the Court concludes that alcohol dependence is not a severe mental disease or defect upon which an insanity defense may excuse criminal conduct undertaken while the defendant was intoxicated. Thus, the Court’s answer of “no” was a correct statement of law and correctly guided the jury’s deliberations. The interests of justice do not require a new trial.

Posted in Behavioral Genetics, Criminal | Tagged , , , , | Leave a comment

The Daily Digest, 4/8/11

Competency proceedings seem like a natural place for criminal defendants to introduce expert evidence using cognitive neuroscience or behavioral genetics. In competency proceedings, while objective manifestations of competency are relevant, so is evidence about the particular defendant’s subjective capacity.

A perennial problem in this and other other applications of behavioral sciences in law, however, is establishing a causal link between the biological causes and the legal standard at issue.

In the case today, the defendant claimed that he lacked the competency to stand trial because he suffered a head injury several weeks prior to trial. The court found that the defendant failed to prove that any head injury he sustained actually impaired his ability to understand the nature of the proceedings and to participate in his defense. In other words, the internal link between head injury and the defendant’s specific limitations was not established. So, too, in other cases, including toxic torts, disability cases, and other applications in criminal law.

Head Injury, Competency to Stand Trial, Causation

Moore v. Kirkpatrick, 2011 WL 1233124 (W.D.N.Y.,2011)
Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was dismissed because Petitioner failed to make “a substantial showing of a denial of a constitutional right.” Petitioner was convicted by a jury of Sodomy in the First Degree attempted Rape in the First Degree, four counts of Sexual Abuse in the First Degree, five counts of Endangering the Welfare of a Child, and three counts of Forcible Touching. In his petition, the Petitioner claimed ineffective assistance of counsel and also that he was “unable to understand the proceedings or assist in his defense due to a mental disease or defect.” Specifically, he asserts that he sustained serious head injuries weeks prior to trial and was taking anti-psychotic and anti-depressant medication. In deciding the motion, the court rejected the claim on the merits, finding as follows: “[h]aving examined defendant’s exhibits there is no basis to conclude that [Petitioner] lacked the capacity to understand and participate in the proceedings.” Competency to stand trial is an issue of fact. A state court’s competency determination, therefore, is entitled to a presumption of correctness on habeas review. In order to succeed on a habeas claim challenging a state factual determination, a petitioner has the “burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(i). Petitioner failed to do so because the evidence submitted did not prove that any head injury Petitioner sustained prior to trial and/or his medications actually impaired his ability to understand the nature of the proceedings and to participate in his defense. Since no factors arose during trial that would have called Petitioner’s competency into doubt, the trial judge was not presented with any reasonable cause upon which to question Petitioner’s competence to participate in the proceedings. The court found no basis to grant habeas relief on this or the other issues the Petitioner advanced in his petition.

Posted in Criminal, Neuroscience | Tagged , , | Leave a comment