BOOK REVIEW: “THE BRAIN DEFENSE: Murder in Manhattan and the Dawn of Neuroscience in America’s Courtrooms”, by Kevin Davis (February 28, 2017)
Two things led me to order this book on Amazon. First, the subject of brain injuries and neuroscience has been somewhat of an obsession of mine ever since I saw Concussion, the movie about the effects of CTE (Chronic Traumatic Encephalopathy) on professional football players. Until recently, CTE could only be definitively diagnosed by direct tissue examination after death. Bennet Omalu, the doctor portrayed in the movie and generally credited with discovering the protein marker linked to CTE, announced in the journal Neurosurgery this month that he developed a test in 2012 that was used to detect CTE for the first time in a living individual.
The second reason I bought this book was to learn more about how so-called brain-based defenses are being used in court.[1] They usually involve a search for medically demonstrable reasons why a client, especially one who was previously law abiding, would demonstrate anti-social or criminal behaviors on an isolated date or during a finite period of time. Although I frequently use psychiatrists and psychologists in my criminal practice, until this year I had never invoked an insanity defense on behalf of a client. As the book points out, the defense is rarely used; fewer than one percent of criminal cases involve an insanity plea (the majority of those cases result in guilty verdicts).
I am currently defending a paraplegic who shot his father point blank as he sat on the family room sofa. The client had a Nest© home security video system which recorded all activity inside the house. The recordings are temporarily stored in the cloud. Police were able to preserve the video and audio for the hour just before and immediately after the shooting. My client is heard talking in his normal voice, then adopting a strange, audibly distinct, voice and personality. Like flipping a switch, he goes from having a conversation with his father, with whom he was extremely close, to accusing him of being an imposter, and then shooting him twice in the chest with an AR-15. He watches him bleed out on the floor and eventually die. Later our client’s voice and demeanor suddenly change back, as if coming out of a dream and realizing what he has done, and he screams for help while acknowledging to a 911 operator that he “accidentally killed [his] father”. Not that firing the rifle was unintentional, but rather he thought he was shooting someone else and only later realized he had actually shot his own father.
In a chapter entitled “When Neuroscientists Come To Court”, the book discusses different attitudes among neuroscientists about their ability to categorically link brain conditions and imaging studies to causality in criminal cases. The author reviews the history of courts accepting fMRI, CT, PET and SPECT scans, and other relatively recent tests used to diagnose brain diseases or conditions. He cites published papers investigating the pathology behind schizophrenia and bipolar disorder using PET scans and other neuropsychological tests to show, for example, frontal lobe dysfunction. He asks the reader to consider whether such dysfunction should serve as a mitigating factor in how the law treats offenders.
The chapter contains a laundry list of the most renowned experts in neuroscience. The takeaway is that there is not yet general agreement on how to interpret the existence of brain conditions in relation to the legal question of whether someone should be held responsible for criminal conduct. The author quotes several of these experts who point out that the data from scans, while scientifically solid, is subject to interpretation. Analogous to reverse extrapolation of blood alcohol content in a DWI case, scans taken months or years after an event which are then used to try to explain past behavior are subject to differing interpretations.
“The Brain Defense” is not a medical treatise or a law review article. It is an easy to read collection of biographical stories of people who, because of a brain condition, have engaged in aberrational violence and the legal consequences of their actions. The book poses the question whether like depression and schizophrenia, violent behavior has organic roots; whether acquired or genetic, brain impairments may predispose some people to violence. The author gives multiple examples from the growing field of neurocriminology, i.e. the use of neuroscience to investigate the causes of crimes.
Although the author uses true crime stories as an organizational device, the “The Brain Defense” is not written just for attorneys; I would recommend it to anyone interested in the fluid intersection between law and science. The book examines how brain injuries and diseases are diagnosed, the connection between brain injuries and behavior, and how recent scientific developments are giving rise to novel legal defenses or used as mitigating evidence in court. The book’s chronological structure, with each chapter revolving around a single case study or topic, conveys the progression of developing applications of neuroscience to determining an individual’s responsibility for criminal behavior.
The first chapter and subsequent chapters woven through the book introduce the reader to the case of Herbert Weinstein, an advertising executive who in January 1991 confessed to strangling his wife during an argument and throwing her out the window of their Upper East Side apartment. Weinstein had no prior history of violent behavior . He was represented by attorney Darmuid White of the New York office of Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria. Weinstein’s case was one of the earliest examples of using a brain condition (benign arachnoid cyst) to support a defense of temporary insanity. Until that time, arguing that a brain injury was the cause of a specific act at a precise moment was fairly untested in the courts.
Foreshadowing Weinstein’s defense was the case of John Hinckley who was tried for attempting to assassinate President Regan in 1981. Hinckley’s defense attorneys used the insanity defense, bringing in doctors to testify that Hinckley had schizophrenia and was delusional when he shot the President. Hinckley’s lawyers moved to introduce CT scans of Hinckley’s brain which the judge first excluded but later admitted as some evidence of a brain condition that researchers believed occurred more frequently in people with schizophrenia. The defense expert confirmed the findings on the CT scan but stopped short of saying the condition was associated with schizophrenia. Based on other testimony that Hinckley suffered from a diminished mental state, the jury found him not guilty by reason of insanity and he was ordered committed to a mental hospital. Last year, in July 2016, Hinckley was released after being deemed no longer a danger to himself or others.
The book documents Weinstein’s odyssey through the medical field as he was examined by many doctors and underwent a wide variety of tests until a PET scan revealed frontal lobe impairment as a result of the cyst. However, PET scan images had never been used in court to prove a defendant was temporarily insane and therefore not criminally responsible. The court in Weinstein’s case conducted a Frye hearing and ultimately ruled that the PET scans would be admissible at trial. Judge Richard Carruthers decided that PET scans were generally accepted in the scientific community as diagnostic procedures. However, the judge would not allow experts to testify that the scans could explain specific behavior or that his condition had caused Weinstein to kill his wife. In other words, the theory that arachnoid cysts could directly cause violence was not an accepted theory nor was the theory that impairments of the brain generally caused violence. With that ruling, and considering the expense of calling experts at a full-blown trial, Weinstein decided to accept a plea to manslaughter. He was sentenced to seven to twenty-one years in prison.
The book concludes with chapters on representing veterans who often suffer from post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI). There is also a chapter discussing CTE and whether it is a viable defense in the courtroom. In 2014, Dr. Daniel Antonius, an assistant professor of psychiatry at the University of Buffalo, wrote an influential paper in which he argued CTE currently has no value in the courtroom. He cites medical literature on CTE consisting mainly of case studies which alone cannot be used to establish clinical criteria for diagnosing a condition. The DSM 5th ed does not, for example, include references to brain scans to diagnose mental illness. On the other hand, with advances in testing for CTE in living persons, the use of CTE as a legal defense may begin to find greater support.
“The Brain Defense” posits that the future use of neuroscience in courtrooms will help evaluate criminal defendants more fully and compassionately and not in a manner incompatible with holding them criminally responsible. The author points out the accelerating rate at which technology is being developed and the increasing interest among lay people in the field. To illustrate this point, two neuroscience researchers and a law professor collaboratively published a textbook in 2014 titled Law and Neuroscience, over eight hundred pages of articles, case studies and information being used by teachers at more than twenty schools where the subject is currently part of the curriculum. “The Brain Defense” ends the way it started – by asking the same questions that people asked twenty six years ago when Herbert Weinstein was arrested: “What, exactly, was going on inside Mr. Weinstein’s brain and what caused him to murder his wife?”.
Reviewed by CHERYL MEYERS BUTH
[1] New York Penal Law §40.15 (Mental Disease or Defect): “In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong.” * This article was submitted to Atticus, a publication of the New York Association of Criminal Defense Attorneys on November 20, 2017.