The Daily Digest – 2/4/11

Mitigation and Brain Dysfunction
Two run of the mill brain dysfunction and mitigation to report today. Neither successful.

People v. Thomas, 2011 WL 321789 (Cal. 2011)
Defendant was convicted of raping and murdering an 18-year-old student, and was sentenced to death. The conviction and sentence were affirmed on this automatic appeal. During the penalty phase of the trial, D introduced as expert testimony a psychiatrist who interpreted a report of a PET scan (positron-emission tomography) conducted on defendant’s brain in September 2000 that revealed an abnormal pattern of brain activity called “hypo-frontality which means low frontal lobe metabolism relative to the rest of the brain.” The abnormality in defendant’s frontal lobe functioning is similar to abnormalities found in a test group of subjects who had committed homicide. The expert testified that someone with that type of brain function abnormality “would have an impaired ability, likely, to regulate their aggressive impulses.”

Dufour v. State, 2011 WL 320985 (Fl. 2011)
D was convicted of several murders and sentenced to death. In his initial post-conviction proceedings, D argued that the failure of the court-appointed psychiatrist to conduct appropriate tests for organic brain damage and mental illness violated due process. While the initial post-conviction appeal was pending, he filed a motion for post-conviction relief that sought a determination of mental retardation pursuant to Florida Rule of Criminal Procedure 3.203. At the evidentiary hearing for mental retardation, D unsuccessfully attempted to establish that he suffered from organic and traumatic brain damage. Although there was some testimony with regard to incidents in which he was was injured, such as vehicular and physical accidents, none of this testimony established or substantiated that the accidents resulted in injury to his brain. D also failed to present any evidence or medical records documenting any injuries to his brain. Following the evidentiary hearing, the circuit court concluded that the D did not establish by either clear and convincing evidence or a preponderance of evidence that he was mentally retarded. This determination was affirmed on appeal.

The Double-Edged Sword of Neurological Evidence and Self-Incrimination

U.S. v. Williams, 731 F.Supp.2d 1012 (D. Hawaii 2010)
In a capital case, D provided notice of intent to introduce expert testimony and evidence relating to a mental defect and condition, specifically borderline intellectual function (“BIF”) and brain damage, bearing upon his guilt and punishment. The Court ruled that D’s experts could testify at the guilt phase as to their diagnoses of Defendant and the impact that BIF and brain damage may have on Defendant’s capacity to form the specific intent to commit child abuse. Thereafter, the Government sought to conduct its own mental health examinations of D. At issue is whether a compelled government exam would violate the D’s right against self-incrimination under the 5th Amendment. The Court held that while the government could conduct an independent psychiatric exam of D, it must be limited to rebutting Defendant’s mental status evidence, not ascertaining another possible motive for Defendant’s actions. In other words, the Government could not use that exam to establish that the Defendant suffers from psychosis or Anti-Social Personality Disorder and that either of those conditions actually caused him to commit the alleged acts, because to do so would be tantamount to using Defendant’s own statements, for which he has not waived his Fifth Amendment rights, against him in a criminal proceeding.

Causation and Toxic Torts

Junk v. Terminix Intern. Co., 628 F.3d 439 (8th Cir. 2010)
Another toxic tort cases failing on the issue of general and specific causation between the toxin and the neurological damage. This will be an interesting and developing area as imaging-to-toxin fingerprint data becomes more widely available. In this case, the Plaintiff enrolled in a Residential Pest Control Service Agreement when she was four months pregnant. D (Terminix and its employee) thereafter sprayed the pesticide Dursban inside and outside her home. P alleges she had informed D that she was pregnant and had asked him about the safety of the chemical Dursban, which contains the synthetic chemical chlorpyrifos. The employee and company assured them that Dursban was a “naturally occurring organic material which would have no impact on human beings.” On behalf of her child, P sued D alleging that her exposure to Dursban during her pregnancy and the child’s exposure to the pesticide after his birth had caused his severe neurological problems. P claimed breach of express and implied warranties, fraud, negligent misrepresentation, products liability, and negligence. Summary judgment was granted for D, because P could not establish general and specific causation. P’s only witness on specific causation of the neurological damage was based on a differential diagnosis of the cause of the child’s neurological condition. This testimony was excluded for lack of scientific reliability.

About Nita A. Farahany

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

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