Author Archives: Markos Freeman

Elizabeth Smart’s Captor – Mental Competency

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In June 2002, Elizabeth Smart’s disappearance incited a massive nationwide search, culminating in March of 2003, when she was spotted in Salt Lake City, Utah with Brian David Mitchell and his wife, Wanda Barzee.  Mitchell and Barzee were both initially judged incompetent to stand trial. Mitchell was ruled incompetent to stand trial until March of 2010, he was legally committed to Utah State Hospital from 2005 to 2008, having been ruled incompetent to stand trial twice while committed; the judicial proceedings are an ongoing process.

Mitchell’s defense attorney argues mental illness as a blame mitigator. While institutionalized, Mitchell showed the conviction of being a prophet, along with a “remarkable lack of empathy,” narcissism and manipulativeness.  All of this is accompanied by an early detachment from Mitchell’s family members. Additionally, officials suggest that while committed, Mitchell’s actions lacked a psychotic facet, something intrinsic to the defense, because his daily routine and his actions were very deliberate.

Holistically taken, Mitchell’s intentions and purpose, although terribly peculiar and gruesome, appear very deliberate and lacking in psychotic element. Hopefully, as Mitchell’s case unfolds his defense will condense into more specific claims.

Child Psychopathy – Does it Exist?

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Last month, a 15 year old boy in Grand Rapids kidnapped a neighborhood dog, brought it back home, where he beat the creature to death with a hammer, set fire to it, and dismembered it in what regional police officers and prosecutors are referring to as a “ghoulish” act. The boy is set to have a psychiatric examination before he is set to be tried in a juvenile court for animal torture. Although the event stands out as unusually gruesome, it is not by any means the first such case.

Similarly gruesome cases involving youth and animal torture beg the question, is there such a thing as child psychopathy? If so, is our criminal system capable of handling cases involving child psychopathy? Researchers in the field debate the label of child psychopathy, arguing that adolescence generates enormous changes in the brain, and that there is no way to absolutely verify that the antisocial behavior shown will carry on from adolescence to adulthood.

Many cite the Macdonald triad as cause for concern, but study upon study has shown that juvenile antisocial disorders do not necessarily carry onto adulthood. Although antisocial disorders may not carry on into adulthood, their presence in juveniles and their treatment by the juvenile court system is a legitimate concern. Presently, the juvenile judicial system is not well equipped to deal withe these cases; limited resources and the severity of the disorder make treatment options limited. Nevertheless, there is a clear need for judicial reform in treating and rehabilitating these individuals.

“Hiccup Girl” – Culpability of Tourette Syndrome First-Degree Homicide Defendant

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In 2007, Jennifer Mee aroused short-term media celebrity as “Hiccup Girl,” three years later she is making headlines again, this time for accusations of first-degree homicide. Mee is accused of having ‘lured’ Shannon Griffin to his death in October, deceiving him into thinking he was going on a date with Mee, leading him to a location where Mee and her boyfriend allegedly intended to rob him, but instead killed him. Mee suffers from Tourette’s syndrome, the cause of her 5 week bout of uncontrollable hiccups in 2007; Mee’s current defense attorney, John Trevena, argues that Mee’s Tourette’s may be a factor in the homicide of Griffin.

Trevena makes the argument that Mee’s Tourette’s may be accompanied by other mental issues, which “not only explain[] the hiccups, but also explain[] some of her poor judgement.” According to Mee’s mother, Mee’s judgement further deteriorated after the 2007 incident. The Medical Advisory Board of the Tourette Syndrome Association has “rejected the possiblity that the disorder could be linked to the crime.”

Mee’s case highlights the growing necessity for neuroscience in the courtroom, particularly in criminal cases. Much of the case currently being disputed is based on speculation with the possibility of being significantly substantiated by neurological fact. The outcry from the Medical Advisory Board directed at Trevena’s statements make the need for scientific validation of Trevena’s case essential to his defense’s survival. If Trevena is serious about substantiating his claims, neuroscience will play a prominent role in the case as it develops.

Neuroscience for the Masses

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The growth of neuroscience into a field with distinctly numerous significant applications to society has sparked many panels of experts attempting to put neuroscientific findings into the perspective of many social problems, particularly as the field has advanced instrumentally and theoretically. Panels such as these have an immensely profound impact on questioning the very basis of law, but perhaps their greatest impact is their pedagogical impact. More commonly than not, such panels cater to the public; in some sense they are an outlet for spreading awareness on the ever-expanding field of neuroscience and the social territories it encroaches on.

One such panel, “The Great Debate: Can Science Tell Us Right From Wrong?”, a discussion on morality and its origin, convened last week in Arizona State University. Another such panel, “Neuroscience in the Courtroom,” convened in Stanford also convened last week to discuss the reliability of neuroimaging and lie detection, and its potential use in the courtroom. Although the topics discussed are significantly varied, they share a common strand as measurements of how relevant to the concrete superstructures of our society, such as law, advancements in the field of neuroscience have become.

The increasing number of discussions taking place that revolve around the intersection between neuroscience and law demonstrate that neuroscience, far from becoming irrelevant, is quickly developing into a field intrinsically pertinent to individual social considerations and decisions. More of the public is realizing the importance of this field of study in explaining human behavior, and as more of the public becomes aware of these applications, legislature will surely change to accommodate the views of the majority. In this sense, neuroscience affects current legislation directly and in a more indirect form – through public awareness.

Retributive Justice and Capital Punishment – Ineffective Tools of an Ineffective System

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In regards to capital punishment, neuroscience and the law dance precariously upon the narrowest of defined lines in our judicial system- the culpability of the defendant. Far from thinking this line uncompromising, the involvement of neuroscience has as its general goal the abolishment of “retributive justice” in favor of “therapeutic justice,” arguing the court’s current absolutist stance on blame, an idea central to Carter Snead’s, Notre Dame Professor of Law, paper, “Neuroimaging and Capital Punishment.” Neuroscientific contention on this issue centers on an idea of free will, counterintuitive to the widely accepted notion, much of contemporary neuroscience literature converges, mainly, that it does not exist in its most absolute of states. Paradoxically, the consequent stripping of this most ‘human’ aspect from the defendant, free will, results in more humane treatment towards the capital defendant by the court.

Cognitive neuroscientists grow more popularly employed in capital punishment cases with the growing presence of neuroscience in the law. As such, an increasing number of capital cases employ the defense of “diminished culpability” by neurological impairment with the intent of lessening sentences to life in prison. Kelly Lowenberg, academic fellow of Stanford Law, in her article, “Neuroscience and Sentencing: Diminished culpability and capacity for change,” argues that neuroscience research and its application to the law challenges  “the constitutionality of existing sentencing practices.” Capital punishment stands out as perhaps the most egregiously immoral of these sentencing practices, having no redeemable social quality other than its retributive aspect.

Conclusively, a large part of the body of neuroscience and law literature condenses to criticism of the contemporary way in which our prisoners are sentenced. Fortunately, advances in neuroscience inevitably affect law-making as explanations are sought for criminal behavior by various bodies of the social sciences. Necessarily,  this greater understanding of our brains and their capacities remolds our moral values, consequently forcing our society to reevaluate punishment as applied to those who go against the law. Concurrent to and resulting from our moral maturation as a society, retributive and immoral punishments, such as capital punishment, will disappear as ineffective tools of an ineffective system.

Recent hearing in Tennessee Court on the Admissibility of fMRI Evidence

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The admissibility of neuroimaging in court as a form of lie detection remains a very controversial topic; nevertheless, a recent hearing concerning the use of functional magnetic resonance imaging (fMRI) as a form of lie detection found its way to a federal court in Tennessee, read more here, a ScienceInsider article on this case, and here, a Wired article on this case and a similar case. The defendent in this case, Lorne Semrau, is accused of defrauding “Medicare and Medicaid in the way he contracted and billed for his services.” Semrau seeks to counter the accusations by submitting himself to an fMRI lie detection test.

Concurrent with the Semrau case, a plaintiff in an employer-retaliation case in Brooklyn judged that the plaintiff could not use fMRI technology as evidence, after a motion by the defense attorney to strike the evidence  on the grounds that it infringed on the jury’s obligation to decide the credibility of the witness. Holistically taken, these two cases show neuroimaging’s inevitable relevance in court. The growing frequency of plaintiffs or defendants seeking to use fMRI evidence in court demonstrates this.

As alluded by the ScienceInsider article, one of these cases will set a precedent  regarding the admissibility of neuroimaging in court. The major challenge standing in the way of this is the relative large uncertainty of the technology currently available.

Problems in Memory ‘Reading’ Technology

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The use of neuroimaging in the courtroom raises a variety of concerns over how large of an impact evidence arising from the results should be allowed to have. Inevitable questions remain not only regarding the accuracy of the results, but also the interpretation of these results when the application of these techniques focuses on reading memories, and the fidelity of these interpretations to factual events. The distinction between subjective memory and objective memory presents issues regarding the interpretation of neuroimaging results in court; such issues have already arisen in court. CBS recently published an article summarizing a study by Anthony Wagner et al, from the Stanford Memory Lab, regarding the effectiveness in court of neuroimaging techniques in memory ‘reading.’

In 2008 a woman was convicted of murder and sentenced to life in prison by an Indian court; the court largely based its decision on neuroimaging results which, it argued, proved that the accused had “experimental knowledge” only the guilty could possibly possess. The fundamental correctness of positions such as these have been questioned by experts in the field, who maintain that the techniques currently used are only capable of assessing the subjective memory, what the test subject believes he or she remembers, as opposed to objective memory, what the test subject actually remembers. The inability of this technology to give us information about her objective memory validates the view that this technology is largely undeveloped for such applications in court, where the uncertainty in ‘measuring’ memories is so large that considering such technology evidence compromises the integrity of the judicial process.

http://www.cbsnews.com/stories/2010/05/10/tech/main6471186.shtml

Impacts of Neuroimaging in American Law “Emotional” Harm Claims

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Betsy Grey, a Professor of Law at the Sandra Day O’Connor College of Law, recently published and article titled “Neuroscience and Emotional Harm in Tort Law: Rethinking the American Approach to Free-Standing Emotional Distress Claims,” the subject matter of which discusses the American judicial system’s bias of assigning more legal weight towards the more evident “physical” harm as opposed to the equally damaging, but less obvious “emotional” harm. The article also delves into the impact of neuroimaging on the issues faced in producing concrete, “physical” medical information evidential of “emotional” harm.

A prolonged prejudiced picture depicting “emotional” harm as having no physiological basis persists in the American judicial structure, particularly in the field of tort law. Grey enumerates various cases in which neuroimaging results of plaintiffs demonstrate measurably and significantly affected brain patterns after a traumatic incident, denoting the changed psyche of the plaintiff, the “emotional” injury sustained by the plaintiff. In such cases, the role of neuroscience and neuroimaging in the judicial process demonstrates an undeniable relevance as irrefutably concrete evidence which heretofore was unavailable to plaintiffs.

I hold no doubt that the use of neuroimaging tests will become a more prominent trend to concretely evidence “emotional” injury in the legal system.

View Betsy Grey’s, J.D., article at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1499989 or http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=29716

Neuropathic Pain And Medical Marijuana Legislature

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Debate regarding the legalization of medical marijuana in our modern society infallibly invokes contention regarding the social, political and economic impact of such a decision. The measurable costs and benefits to society of such legislature are almost always considered from the socioeconomic perspective, but true scientific understanding of such a complex issue requires neuroscientific considerations of available research into the issue. These considerations are essential in order to formulate appropriate legislature that does not incur social prejudice and bias into its matrix at the expense of human misery.

Medical marijuana possesses numerous medical applications, particularly in the treatment of neuropathic pain; more well known amongst these is the positive response of patients with intense pain arising from chronic migraines to cannabinoids. In many of these cases, side effects of the medication prescribed only marginally surpass the benefits of consumption, leading to many documented cases of patients opting for marijuana use due to its relatively less numerous side effects. Ethan Russo, MD, discusses the history of the criminalization of marijuana use and its potential as an alternate migraine treatment in his article, “Hemp for Headache: An In-Depth Historical and Scientific Review of Cannabis in Migraine Treatment.” Neural mechanisms of migraines and research into treatment are mainly discussed from page 63, section “The Discovery of Endogenous Cannabinoids and Biochemical Mechanisms of Cannabinoids,” onwards.

Increasing understanding of the human brain and its mechanisms inevitably leads to the re-examination of societal stands on many issues, medical marijuana being one of them. New discoveries in neuroscience and the insight they equip society with should be taken full advantage  of not only in health legislature, but across the entire spectrum of policy making and actualizing.

Russo, Ethan. “Hemp for Headache: An In-Depth Historical and Scientific Review of Cannabis in Migraine Treatment.” Journal of Cannabis Therapeutics, Vol. 1. The Haworth Press: 2001. <http://www.drugpolicy.org/docUploads/hemp_for_headache.pdf>