Friday Dysfunctional Roundup: Psychopath brain and crime — mitigating or aggravating?

[Updated 12.04.09]

I vote aggravating, because psychopathy is a permanent condition, and therefore argues against rehabilitation –  the stated goal for mitigation in capital cases. Unlike other mental illnesses that can be treated — or even adolescent brains that grow up — psychopathy is not transient, it is very permanent unless white matter grows back. Therefore, the “my psychopathic brain made me do it” mental illness defense goes toward a more severe punishment, rather than a less severe one.*

Update 12.04.09:  The NYT has an opinion piece on recent Supreme Court decisions involving mitigation: Korean veteran PTSD (yes mitigating) vs. psychiatric-addiction-mental illness (no, not mitigating)  Linda Greenhouse, “Opinionater: Selective Empathy,” NYT 12.04.09.  Ms. Greenhouse opines on the inconsistency and apparent arbitrariness of the decisions based on selective empathy for veterans, but not for garden-variety-psychiatric-addiction (not to trivialize the defendant’s situations here).

Perhaps the written opinions are nuanced in ways that can only be gleaned by Constitutional scholars, but to this bleary eyed caffeine depleted anonymous fringe blogger, the decisions are absolutely consistent, and have zero to do with empathy, and everything to do with following precedent in what looks like (if the facts are as presented) fairly clean cases.

Both cases hinged on ineffective assistance of counsel. For death row lawyering, effective counsel investigates facts that remove the punishment of death as a possibility. Some may pre-load mitigating factors upfront (so long as there’s not a total denial).  If your death row defense counsel fails to investigate your abusive, deprived, brain-pathologied background, of course that’s  ineffective assistance of counsel, and one can easily see why. The Korean veteran’s counsel failed to investigate any mitigating factors (at the behest of the the defendant, pro per until pleading guilty, and otherwise defeatist, uncooperative and said “don’t talk to my ex wife or my son” among other things) — so the judge and jury “heard almost nothing that would humanize” the defendant.  So, of course the defendant has a right to go back for a re-do of the penalty phase so that mitigation evidence can be presented. For the psychiatric-addiction case, counsel did investigate the defendant’s childhood and presented mitigating evidence, just not up to American Bar Association standards — standards requiring investigating the defendant’s life in toto “from the moment of conception.” In that case, any more evidence wouldn’t have mattered because the salient points were presented – the horrific childhood, the current psychiatric conditions.

More importantly, for the Korean veteran,  the Supreme Court decision was wrong, wrong, wrong: this should have been an incompetence to stand trial case, not an ineffective counsel case.  If you can’t participate in your own defense, you’re incompetent to stand trial.  (This is at issue in the adolescent-brain cases, below).   This defendant represented himself for part of the trial before pleading guilty. To now claim that the death row lawyer was ineffective seems too little too late; the competence ship has sailed, and ineffective assistance of incompetent defendant who should not have been permitted to stand trial to begin with is a nullity and violates the 8th Amendment.

One more thing: Ms. Greenhouse notes that Justice Alito throws in a “gratuitous” footnote about the ABA not being all that.  The footnote strikes me as the dropping of a first political shoe:  Is Justice Alito dissing the ABA as a set up for a basis to ignore ABA recommendations for future judicial nominees? Particularly the replacement for Justice Stevens, who is rumored to be leaving the bench?  (Justice Stevens is 90 years old and didn’t hire his full stable of law clerks for next year.)  Justice Alito, son of Italian immigrants, was endorsed by the ABA, and now to dis’ the organization that supported you calls into question your own credibility. Justice Alito, however, was also endorsed by the National Italian American Foundation, and its credibility is enhanced by members such as Jimmy Kimmel, Speaker Pelosi and others.

As an aside, the few death row trial lawyers your loyal bloggist has met at social events seem to have the same work pattern: work intensely for a year, getting no sleep and doing nothing else, and then take three months off in a catatonic state. Death row lawyering is for the elites, and far more intense than any of the shiney shoed, slick haired, corporate work that pays real money.  Ineffective assistance of counsel would seem to be a basic mis-interpretation of the law issue, rather than any kind of failure to do the work required.  Justice Alito’s footnote dissing the ABA death penalty mitigation guidelines may be helpful to the death row bar, and I wouldn’t dismiss it as gratuitous at all.

Here’s the post:

According to reports in the past few weeks, Brian Dugan, a psychopathic, homicidal, sado-sexual child murderer,  was sentenced to death in Illinois by a jury who duly considered expert testimony relating to his psychopathy. (Press links below the jump).   Dugan argued that his psychopathy made him less culpable because there’s something involuntarily wrong with his brain, and he put up an expert (the noted Dr. Kiehl) with a bunch of brain scans to prove it.

The prosecution, DuPage County States Atty. Joe Birkett, said that the agreed-upon fact that Dugan is a psychopath “is not mitigation, it’s aggravation, ” and moreover,

“This is a con, this is a total con,” said Birkett of the claim that Dugan’s mental condition diminished his responsibility. Dugan is “a very, very, very smart individual….he’s sick in a demented way, in a deviant way, in an evil way.”


This was in the punishment phase, after guilt was already determined.  The prosecution diss’d the fmri’s, testifying that “‘it would take a leap of faith’ to use the new technology to predict criminals or specific criminal action. [The expert Dr. Brodie] said that a Functional Magnetic Resonance Imaging test possibly ‘can be used to draw conclusions about groups,’ but he said that a scan of Dugan’s brain taken in September ‘tells me nothing about what happened 25 years ago [when the murder happened].’” Chicago Tribune 11.07.09

Good point. FMRI’s –functional MRI’s –are here today, gone tomorrow — showing no activity while looking at a grusome photo today may be due to a football concussion or something rather than congenital psychopathy. (I’m guessing, and have no idea what was presented in support of expert testimony). Better to base mitigation opinion on a permanent condition, like psychopath white matter that has more permanence.

Mitigation in a death penalty phase is rooted in trying to make the death penalty less arbitrary, and satisfy the Eighth Amendment of no cruel and unusual punishment and the dignity of human life. Therefore, all sorts of evidence about the defendant’s character may come in that normally wouldn’t come in under the guilt phase.  Mitigating evidence of character doesn’t have to have anything to do with the crime – mitigation can be a religious conversion or an abusive childhood. The question of whether the defendant is capable of rehabilitation is the issue. In that vein, however, precisely because psychopathy is a permanent condition, it is an aggravating condition.

Contrast three cases presently on the SCOTUS docket,

two involving teenager brains, and one involving IQ. With teenagers, the condition is temporary — that would argue against imposing permanent imprisonment. With low IQ, a recent hearing points to SCOTUS viewing this as irrelevant to culpability.

As summarized by the Equal Justice Initiative,

. . In two cases, Sullivan v. Florida and Graham v. Florida, the Court will address whether it is constitutional to sentence a child to permanent imprisonment for an offense committed during a temporary, and especially challenging, period in human development: adolescence.. . .

(see, Alexandra Cox, Why Brain Science Is Bad for Juvenile Justice HuffPo 11.23.09 for policy considerations in the criminal justice system).

AS a procedural matter, perhaps psychopathy should be used to establish incompetency to stand trial. Something in an amici brief struck me as the similarity between adolescents and psychopaths: the inability to work along side others in positions of authority. As pointed out in one of the Amici briefs for the Graham case,  Mental Health Experts: J. Lawrence Aber, et al. (at page 14 of the pdf):

*  *  *

Fourth, to the extent society depends on the protections of the legal process to identify and account for adolescent deficiencies and capabilities on a case-by-case basis, research shows that adolescents are far less capable than adults of participating effectively in legal proceedings, including by relating to and communicating with authority figures such as the police, judges, and even their own counsel. One cannot assume that the system will fairly and accurately identify only those thirteen- to seventeen-year-olds who are most deserving of the most severe punishments. Independent judgment regarding the constitutional acceptability of the punishment is required.

*  *  *

IN another case, argued a few weeks ago before the Supreme Court, the question boils down to whether having a low IQ gets you off the hook.  Holly Wood,  having an IQ of between 59-64,  was convicted of murdering his girlfriend.  (See the SCOTUS wiki).  The legal issues involve whether evidence of low IQ should have been presented to the jury during sentencing (and procedural aspects).

In the oral hearing ( transcript) Justice Scalia seems to think that a low IQ is irrelevant to determining culpability — if you have a low IQ, you can still know right from wrong. Like psychopaths — if you have a little amygdala and a big striatum, you can still know right from wrong, in terms of what society expects. Psychopaths don’t feel right from wrong, however, because their wiring for affective empathy is disconnected.  So they know others feel pain, but they don’t care.  If their ginormous striatum is chock full of dopamine receptors, they may sort of enjoy the power hit.  But, so long as the frontal lobes are working, there is no reason to assume they don’t know societal right from wrong.

One more case is relevant, Wong v Belmontes, decided on a petition for certorari (denied). In that case, Mr. Belmontes bludgeoned Ms. McConnell to death by 15-20 blows to the head with a steel dumbell bar, stole her stereo, sold it for $100, and used the money for drugs for the evening. The case bounced around but ultimately the appeal hinged on whether Mr. Belmontes’ lawyer gave enough mitigating evidence at the death penalty hearing.  Mr. Belmontes complained that the jury wasn’t told that he suffered an “extended bout with rheumatic fever,” which led to “emotional instability, impulsivity, and impairment of the neurophysiological mechanisms for planning and reasoning.”

The trouble, however, was that a few years prior to the murder in question, Mr. Belmontes had murdered another person, execution style,  for refusing to share drugs with him. He also bragged about it.  The main mitigating lawyering was keeping that murder out of evidence.  So, the appellate court ruled that even with extra “mitigating” evidence of  impaired “neurophysiological mechanisms for planning and reasoning”  “the cold, calculated nature of the Howard murder and Belmontes’ subsequent bragging about it would have served as a powerful counterpoint.” So, no error, SCOTUS review.

But back down to earth.

Psychopathy is irrelevant at best, and makes the defendant look more culpable at worse.  The gist of “My psychopathic brain made me do it (or didn’t stop me)” is that a psychopath is incapable of self control (or free will).  This undermines the very definition of psychopathy:  manipulative.  Psychopaths  recognize how they appear to others and control it, in an effort to manipulate others.  One recent study reports  psychopaths are really lucky at getting charged on a lesser offense than murder — they don’t tell anyone about the crime, so presumably its a matter of proof.   (Manic Monday: Psychopaths good at picking victims, getting away with murder)

Contrast other brain pathologies, like the schizophrenic Ted Kaczynski who believed that stopping technological advances at all cost was necessary for a greater good.   (See the post, “Why Dr. Kaczynski may believe there’s nothing wrong with him (anosognosia)“).   This is a cognitive issue: a delusion that results in a rational belief system if they lived on another planet. A psychopath has the cognitive wiring to know how society defines “right” and “wrong”. He just doesn’t care.  And, he views anything that stands in his way of life as an impediment.

The psychopath fall back position is  “I never was treated — so now I’m worse” .  For instance, the Fake-Rockefeller who married the McKinsey exec and then kidnapped their child after the divorce claimed his failure to get treatment for psychopathy was a mitigating factor and blamed his ex wife for not forcing him. (See, here). The “I was never treated and so now I’m worse and it’s not my fault” argument. Sort of like the TODDI defense — “The Other Dude Did It”.  My ruling: Aggravating.

Psychopathy is an aggravating factor, not a mitigating one, because the neural disconnect is permanent, and renders the psychopath incapable of affective empathy — the ability to  rise above self interest and function in society.

Can psychopaths be rehabilitated at all? Maybe if stem cell technology is available to seed their brains to regrow white matter.  Psychopathy may then be a mitigating factor but only if psychopaths are required to get neural stem cells to rewire their moral center such that they feel double doses of affective empathy. Then, they’ll have to live with themselves. That’ s Karmic justice.

* Your loyal bloggist expresses no opinion on the existence of the death penalty, nor its application.

Here are links to some of the articles:

Greg Miller, fMRI Evidence Used in Murder Sentencing, Science Insider 11.23.09


Helen S. Mayberg, MD, “Comment: Functional Brain Scans as Evidence in Criminal Court: An Argument for Caution,” Journal of Nuclear Medicine 33: 18N-25N (1993)

(This 1993 article I thought was interesting although it relates to standards of evidence admissibility that are largely superceded.  It used to be that the “generally accepted” standard of  Frye v US was sufficient for admissibility — peer review and you’re in, to a large degree. But, the rules changed, and now an expert may opine on any area that may help the court so long as the expert is knowledgeable by training, education, experience or some other expertise.  So junk science is kept out by being “Dauberted” . The SCOTUS case  –  Daubert v. Marion Merrill Dow — involved the pregnancy anti-nausea drug benedictin. Benedictin, interestingly, is basically a combo of two otherwise safe drugs — Unisom and vitamin B6. The science at issue was whether benedictin caused a birth defect in the Daubert family. A tragic case to be sure, but the Dauberts sought to introduce expert opinion that benedictin was a cause of human birth defects, in reliance on “in vitro” (test tube) and “in vivo” (live) animal studies that found a link between Bendectin and malformations; pharmacological studies of the chemical structure of Bendectin that purported to show similarities between the structure of the drug and that of other substances known to cause birth defects; and the “reanalysis” of previously published epidemiological (human statistical) studies.   Ultimately,  the manufacturers pulled the drug from the market in the face of threatened litigation — and an inability to make a profit that wasn’t eaten up by product liability insurance payments.   Interestingly, after being pulled, the level of birth defects remained the same as when the drug was on the market.  One argument is that benedictin had no effect on birth defects. Another is that after the branded drug was pulled, the same doctors simply went to a  formulating pharmacist to mix up Unisom and B6 benedictin home brew (interesting comments on Mr. Nice Guy’s blog about this)  — seems unlikely, but still, some pregnant women were incapacitated by nausea and may have had no other choice apart from an iv line for nourishment.  In any event, the Daubert name lives on in legal pretrial motion practice, and the tragic case of the Daubert family is often pointed to in product liability circles as another instance of causation misfired.

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