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.

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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.

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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.

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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.”

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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.

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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.

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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.

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