Murderous Minds (35 page)

Judge Bakalis compromised. He ruled that the defense could describe the results of the brain scans but could not show them. They could only show a diagram with “X”s marking the spots where Brian’s brain showed signs of abnormality.

The prosecutors countered Kiehl’s opinions with the testimony of psychiatrist Jonathan Brodie. Brodie referred to the brain as a complex orchestra and said “if all we’re measuring is one instrument, we’re missing the sound of the entire piece.”
²⁹
The prosecutors dismissed the notion that a psychopath’s impaired ability to process emotions had any legal relevance to his guilt. “His emotions have nothing to do with his choices,” Illinois State’s Attorney Joseph Birkett told the jury which would decide if Brian
received the death penalty or an additional life sentence. “He’s not forced into raping or killing or doing any of these things. He does it when he wants to. He doesn’t do it when he knows he’ll get caught.”
³⁰

The jury agreed. They unanimously decided Brian should die. In 2011, however, Illinois governor Pat Quinn signed legislation abolishing the death penalty in his state. Brian’s sentence was commuted to life in prison, his third. Three young, promising lives were destroyed for three life sentences that could only ever amount to one long, wasted life.

“He was cold and matter-of-fact, but never remorseful,” retired Illinois state police lieutenant Ed Cisowski told the Daily Herald.
³¹
“His crimes were impulsive. He was an opportunist who was all about power and control.” Officer Cisowski had interviewed Brian repeatedly and believed he would have continued killing had he not been caught. “I don’t think he could stop himself,” the policeman said.

That is something any good defense attorney desperate to defend the least sympathetic of defendants would latch on to. If he could not stop himself, if he was not in control, he must have diminished capacity. If he could not control himself, perhaps he should be given a break and avoid the death penalty.

Unless you have a preconceived notion about the appropriateness of neuroscience in the courtroom, your opinion might swing toward the view of the last person you hear argue the case for or against it. It makes sense that a person with brain abnormalities that prevent him from having a conscience and cause him to act impulsively without regard for future consequences should be viewed as impaired and not fully liable for his actions. After all, if a person cannot control their actions, they cannot be responsible for them. But… .

Then you hear that abnormal brain or not, the accused absolutely knows right from wrong, and can refrain or adjust his criminal behavior if he thinks it will likely turn out badly for him. He is “morally sane.” The pro and con arguments can continue, canceling each other out in open minds considering the issue because there is no definite answer. Even psychopathy researchers are split on this issue. It depends on your opinion.

“Neuroscientists say they are capturing mental states with various types of brain-imaging techniques,” Michael S. Gazzaniga, director of the Sage
Center for the Study of the Mind at the University of California in Santa Barbara told Kayt Sukel, author of a Dana Foundation briefing paper. “We say we are learning to understand the neural mechanisms of a person intending to do something. But is that really true? Can you really recreate, at one point in time, what someone’s intention might have been? We can’t—at least not at this time.”
³²
Even Robert Hare, Kent Kiehl’s former mentor, questions how much brain images can reveal about the nature of psychopathy.
³³

The fact is, at this time neuroscientists understand too little about how brain structure and function regulate or influence motivation, emotion, and behavior to convincingly establish a cause-and-effect relationship between brain scans and crimes. Abnormal brain structure and activity can be correlated to criminal activity, but more basic research will be required before the correlations are widely accepted as excuses for psychopathic behavior like Brian’s.

Advocates of neurolaw face a greater challenge than those who convinced the judicial system to accept the reliability and relevance of DNA evidence in criminal cases. It is relatively easy for a jury of nonscientists to imagine, if not understand the details involved in, laboratory procedures that detect the presence of molecules experts assure them are unique to an individual. All they have to do is think of DNA being like a chemical fingerprint. But some skeptics might find it harder to relate an fMRI brain scan to an intangible concept like a motivation or an intention, despite the evidence that brain abnormalities can without doubt negatively influence behavior. Often the law and juries don’t accept unquestioned biological determinism unless the evidence is overwhelming. They look for responsibility, a difficult concept for science to show using brain images whose relevance is questioned by experts hired by the opposing side.

Under current law (which is likely to stay current for many years), it would be necessary to demonstrate that psychopathic criminals did not have a choice when they committed their crimes if their lawyers want to use their brain scans to keep them out of prison. This is unlikely to happen in the U.S., which tends to favor retribution for violent criminals, even in many cases for mentally ill convicts. Instead, claims of brain abnormalities are used to support requests for lighter sentences. Where, we’ll see, they can be successful despite Brian’s experience in court. But cortical thinning
and underactive frontal lobes and amygdalae will not get anyone returned to the streets.

“As long as choice exists, difficulty in making a decision cannot be a legitimate defense for one’s action,” Ilana Yurkiewicz, science writer and Harvard Medical School student, wrote. “Moreover, if it were, the door would be dangerously opened for similar excuses (‘living in a poor neighborhood made it harder for me to resist becoming a drug dealer,’ or ‘being surrounded by well-dressed friends made it harder for me to resist shoplifting’). As these excuses are not typically legitimate in court, the addition of a neural component does not make them any more legitimate.”
³⁴

Yurkiewicz concludes that the state of a defendant’s brain as indicated by a brain-scan image may not provide a sound defense for someone charged with a crime. The state of a person’s brain, in her view, may reflect aggression, but “it does not pull puppet strings on the action.” Behavior, she notes, results from a complex interaction of many factors involving variable brain states. Together, these states result in decisions and actions. According to this view, a desire or propensity to harm others can be balanced, even in a criminal psychopath, by a brain state that places self-preservation—not getting caught—above the risky thrill of satisfying an obscene desire. The act of violence, if you agree with this interpretation, is not the result of a brain dictating a violent act: it is the result of a decision that has been influenced by aggressive tendencies, but tendencies that are not commands.

“I think we have to remember that the neuroscience research is a really important level of analysis,” psychologist Scott Lilienfeld said during a discussion of neuroscience’s place in psychopathy research at the 2013 Meeting of the Society for the Scientific Study of Psychopathy.
³⁵
Then he reminded his colleagues that it is not the only level of research. There are psychological, social, and neurological levels of research. “We know we have different levels of analysis, but we don’t know how to bridge them.”

fMRI brain scans, Yurkiewicz concludes, “can only tell us about proclivity, not about guilt or accountability. The use of neuroimaging in court should operate within the same legal guidelines that we currently use to define guilt. One is accountable for his criminal behavior so long as he possesses basic rational abilities, is not forced to commit the action, and is not acting under duress. The defense ‘I did not do it; my brain did’ is valid only
if a brain scan unambiguously illustrates one of the above mitigating situations. Neuroimaging may indeed prove valuable in that it offers advanced explanation for criminal propensity. What it does not offer is justification for subsequent criminal action.”
³⁶

Motivation, understanding, intent, responsibility, and reasons related to criminal behavior are sometimes referred to as “folk psychological” concepts. “The neuroscience won’t supplant any of those folk psychological concepts. It’s more likely that the neuroscience will eventually assist doctors and lawyers in determining how to apply these folk psychological concepts to a person by supplying evidence about their cognitive abilities and motivation states,” the director of the Center for Neuroscience and Society at the University of Pennsylvania, Martha Farah told Kayt Sukel.
³⁷

Although it is unlikely for the foreseeable future that the American legal system will ever excuse rape and murder based on evidence backed up with brain scans, it has already begun adjusting itself to their introduction into the courtroom. “I have had half a dozen prominent attorneys call me and say they want to do functional imaging of their client, who is a psychopath, to try to show that his brain looks different, because prosecutors will likely take the death penalty off the table,” Kent Kiehl told Michael Haederle in a 2010 story for Miller-McCune magazine.
³⁸
It didn’t work for Brian, but it is now common for defense attorneys to submit brain scans when they appeal death sentences.
³⁹
An experiment conducted by researchers at the University of Utah illustrates why this may be an effective legal strategy when defending a psychopath.

You Are the Judge

Before you stands Jonathan Donahue, convicted of pistol-whipping a restaurant worker, resulting in serious injury. Although Jonathan is a hypothetical convict created for the experiment, he is based on a real person. His file indicates that he has been diagnosed by a qualified psychologist as a violent psychopath who lacks empathy. Knowing this much about him, for how many years will you send him to prison? When scores of state judges from across the U.S. answered this question, they sentenced Jonathan on average to 14 years behind bars.

Now consider a slightly different version of the same case. It differs only by having the testimony of one additional witness slipped into the record.

This version of the convict’s file includes testimony by a neuroscientist who is a recognized authority on psychopathy. This expert told the court that Jonathan inherited a gene that caused his brain to develop abnormally. This developmental condition impaired his ability to process emotional information. Now, how many years would you give him? If you were like the second group of judges included in the experiment, you would give him on average one year less behind bars, a sentence of around 13 years. Most of the judges who took part in the experiment—nearly 87 percent—listed aggravating factors among their justifications for their sentencing decisions. But when the biologically based information was included in the convict’s file, the percentage of judges who listed mitigating factors increased from 39 percent to 48 percent.
⁴⁰

The judges told the researchers that if Jonathan had not been labeled a psychopath, he would receive on average a sentence of nine years. Labeled a psychopath, he would on average get 15 years. “But then those who read about the biological mechanism subtracted a year, as if to say, ‘This guy is really dangerous and scary, and we should treat him as such, but the biological evidence suggests that we can’t hold him as responsible for the behavior,’” a co-author of the study, Associate Professor of Philosophy James Tabery, Ph.D., told the New York Times.
⁴¹

We can say with near certainty that, compared to non-psychopaths, people with high psychopathy ratings show different patterns of activity in parts of their brains intimately involved in processing emotions and making and evaluating moral decisions. They have altered connections affecting these limbic systems and associated brain regions. We know that certain genes are associated with violent tendencies and that the development of psychopathy is influenced by genetics. What we have learned so far from brain-imaging studies is that the neurobiological profile of the criminal psychopath is consistent with key features of psychopathy: a lack of moral sense and a lack of empathy.

But science cannot unequivocally answer questions concerning the neurobiological basis of criminal responsibility. That remains a matter of opinion, not scientific fact. Science can only influence how questions of guilt are dealt with by our legal system.

No matter how much you or the judges were influenced by the testimony about Jonathan’s hypothetical brain, one thing is certain: we will see more genetic, fMRI, and other neurobiological evidence presented as testimony in real cases despite lingering doubts over their “not ready for prime courtroom time” status. And it is the scientists who are producing this evidence who have the responsibility of educating the public, including judges and prospective jurors, about insights provided by, and limitations of, the results of their research. Neuroscientists together with jurists will have to get the timing right for introducing and accepting neurobiological evidence in the courtroom. The still-unresolved and complex relationships between brain abnormalities and legal responsibility are outside the realms of either profession alone. This is the time to watch Neurolaw move into its adolescence as the science progresses and judges and lawyers consider its practical, legal implications and usefulness. Rushing scientific results into court can be as ill-advised as rushing new treatments into medical practice. Remember the 1949 Nobel Prize winner who gave us the frontal lobotomy.