The Daily Digest, 5/26/11

The case today presents an interesting application of the developing brain theory in juveniles. The defendant, who was convicted of two counts of second degree murder and sentenced to two consecutive life sentences without the possibility of parole, sought to suppress his statements to police that were made after he was read his Miranda warnings. The defendant argued, inter alia, that his developing brain as a juvenile made him unable to think abstractly and thereby understand abstract concepts like Miranda rights. The trial court credited the testimony of an officer there when the Defendant’s Miranda warnings were read, over an expert psychologist who opined about the Defendant’s developing brain and the ability of juveniles to understand abstract concepts.

Juveniles, Miranda rights, Developing Brain
State v. Jacobs, 2011 WL 2020747 (5th Cir. 2011)
This matter is on remand from the Louisiana Supreme Court. The Court affirmed the defendant’s convictions and sentences. After his first trial in 1998, defendant, Defendant was convicted of first-degree murder and sentenced to death. On direct appeal, the Louisiana Supreme Court reversed defendant’s conviction and sentence and remanded the matter for a new trial. In the interim, Roper v. Simmons was decided. In response, the DA amended its indictment to reduce the charges against the defendant to two counts of second-degree murder, instead of one count of first-degree murder. Defendant was re-arraigned on the amended indictment and pled not guilty. After a five-day trial, defendant was found guilty as charged by a unanimous twelve-person jury. The trial court denied defendant’s motions for new trial and post verdict judgment of acquittal, and sentenced defendant to two consecutive life sentences at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant filed a motion to reconsider sentence, which was later denied. In his timely filed appeal, the defendant challenged his convictions and sentences. Among his assignments of error, the defendant also argued that the trial court ruled improperly at the suppression hearing regarding his statements to the police when questioned. At the suppression hearing, the defense called a licensed psychologist as an expert in forensic psychology and forensic neuropsychology. He testified that the adolescent brain is different from the adult brain and that the adolescent engages in very concrete thinking rather than abstract thinking. He opined that Miranda rights are abstract so a person must have the ability to think abstractly to understand those rights. The expert stated that he tested the defendant in 1998. Among other things, he assessed his cognitive and neuropsychological functioning. His IQ was 83, which is within the range for mental retardation. The expert also testified that defendant suffers with a type of brain dysfunction that made his ability to understand his rights more difficult so the expert opined that it was highly unlikely that the Defendant understood his rights. Nevertheless, the expert was not present that night so he could not definitively testify that defendant did not understand his rights. In reviewing a trial court’s ruling as to the admissibility of a confession, the court’s conclusions on the credibility of witnesses are entitled to the respect due those made by one who saw the witnesses and heard them testify. A trial court’s ruling will not be overturned on appeal unless it is unsupported by the evidence. In this case, a police lieutenant testified that defendant was advised of his Miranda rights, did not at any time ask for an attorney, nor indicate that he did not want to talk to the officers. The credibility of witnesses at a suppression hearing is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Based on the evidence, if the Court were to reach the merits, the Court would find no abuse of the trial court’s discretion in finding the lieutenant’s testimony more credible in this respect. The Court rejected this assignment of error, as well as the Defendant’s other assignments of error, and affirmed the convictions and sentence.

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The Daily Digest, 5/25/11

With the increase in neuroscience-based literature and educational opportunities directed to current and upcoming legal professionals, such as the upcoming ABA and AALS Neuroscience and Law webinar and the “Law & the Brain” course at Vanderbilt University Law School, individuals at all levels, with or without science backgrounds, have the opportunity to become aware of emerging neuroscience issues. The case today illustrates the results of just that. In the case today, regarding educational placement of a minor, the guardian ad litem of the child testified and recommended that the child be placed in public school rather than home school based on the knowledge she had gleaned from seminars she attended and literature she had come across regarding adolescent brain development. Although admittedly not an expert in the field of brain development, the trial court relied in part on her recommendation in ordering that the child be enrolled in public school. The court here affirms.

Public Versus Home Schooling, Brain Development Theory
In the Matter of Kurowski, 2011 WL 976509 (N.H. 2011).
Respondent, mother, appeals an order from the family court granting the request of the father of her child to compel enrollment of their child in public school. In his request, the father stated that his daughter was being home-schooled through a program that is affiliated with the mother’s church, and that the education, religion, and social environment is detrimental to his daughter’s welfare. He explained that the daughter is withdrawn and has difficulty integrating with others, and requested that she be placed in public school. To resolve such matters, the trial court appointed a “guardian ad litem” (GAL) to represent the daughter’s best interests and recommend changes to the current parenting plan. In opining to the trial court that the daughter should be placed in public school, the GAL testified that although she was not an expert on brain development, she had researched the subject of adolescent brain development and attended seminars, and had learned that the human brain undergoes tremendous changes during adolescence. She testified that the literature explains that “the repeated stimulation of brain connections causes areas of the brain to become strengthened, while not using areas of the brain causes them to wither away” and that this “to [her], implicates how a child should be spending their time.” The mother here argues on appeal that the trial court erred in ordering her daughter be placed in public school “based exclusively on the unqualified opinion testimony of the [GAL] who admitted she is not a brain expert . . . yet testified regarding adolescent brain development and [daughter’s] future educational needs.” Here, the court finds that the trial court did not err. The court reasoned that there is nothing to suggest that the trial court considered the GAL’s statements as those of a qualified expert (especially since she admitted to not being one), the trial court’s decision to place the child in public school was not based exclusively on the GAL’s testimony, and the foundation of GAL’s testimony was based upon more than just her adolescent brain development research.

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Webinar of Interest

Of interest to readers of the blog. The ABA (Section of Science & Technology Law of the American Bar Association) and AALS are co-sponsoring a Neuroscience and Law webinar series of interest. I’ll be speaking at the last one, on Neuroscience and Violence:

The hour and a half programs are at 12pm CST on Thursday, May 5th (Neuroscience and the Law: Memory and Lie Detection); Thursday, May 19th at 12pm CST (Neuroscience and the Law: Substance Dependence); Thursday, June 2nd at 12pm CST (Neuroscience and the Law: Competency Issues); and Thursday, June 16th at 12pm CST (Neuroscience and the Law: Violence).

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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.

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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.

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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.

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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.

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