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December 12, 2013

Brave New Death Penalty World: brain scans used to defeat death sentence

This new Wired piece, headlined "Did Brain Scans Just Save a Convicted Murderer From the Death Penalty?" suggests that defense lawyers in a recent federal capital trial devised another clever way to encourage jurors not to return a death verdict.  Here are the basic details:

John McCluskey escaped from an Arizona prison in July, 2010. A few days later, he and two accomplices — one of whom was both his cousin and fiancee — carjacked Linda and Gary Haas, a vacationing Oklahoma couple in their 60s.  McCluskey shot the Haases inside the camping trailer they were towing behind their truck, and set the trailer on fire with their bodies still inside. McCluskey was convicted for the carjacking and two murders in federal court on Oct. 7.

Yesterday the jury charged with deciding his sentence announced that it had been unable to come to a unanimous decision on the death penalty. That means he’ll get life without parole.

Perhaps it’s little wonder the jury couldn’t agree — they’d been given a lot to consider. McCluskey’s defense team had tried to convince them that he has several brain defects that, combined with other factors, contributed to his crimes and should be considered mitigating circumstances. The defense presented the results of several types of brain scans and various psychological tests, as well as testimony from neurologists and other experts....

In the sentencing phase of the trial, McCluskey’s lawyers argued that, as a result of his brain abnormalities — as well as a slew of other unfortunate circumstances ranging from a breech birth, to abuse as a child, to drug and alcohol addiction — he was incapable of “a level of intent sufficient to allow consideration of the death penalty.”  Essentially, they argued that his acts were impulsive, that he would have been incapable of planning such things.

December 12, 2013 at 10:50 PM | Permalink


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Let's throw some gas on the fire.

The Neuroscientist Who Discovered He Was a Psychopath

One afternoon in October 2005, neuroscientist James Fallon was looking at brain scans of serial killers. As part of a research project at UC Irvine, he was sifting through thousands of PET scans to find anatomical patterns in the brain that correlated with psychopathic tendencies in the real world.

“I was looking at many scans, scans of murderers mixed in with schizophrenics, depressives and other, normal brains,” he says. “Out of serendipity, I was also doing a study on Alzheimer’s and as part of that, had brain scans from me and everyone in my family right on my desk.”

James Fallon’s new book, The Psychopath Inside

“I got to the bottom of the stack, and saw this scan that was obviously pathological,” he says, noting that it showed low activity in certain areas of the frontal and temporal lobes linked to empathy, morality and self-control. Knowing that it belonged to a member of his family, Fallon checked his lab’s PET machine for an error (it was working perfectly fine) and then decided he simply had to break the blinding that prevented him from knowing whose brain was pictured. When he looked up the code, he was greeted by an unsettling revelation: the psychopathic brain pictured in the scan was his own.

Posted by: George | Dec 12, 2013 11:32:58 PM

Tiresome story of lawyers making aggravating factors into mitigating factors. We are squarely in the Lawyer Twilight Zone.

Say we discover the PET scan differences in someone who can pitch a baseball at 90 miles an hour. Should we cancel the $10 million a year offer because it is undeserved? Or should we increase it if it predicts that with experience the speed will go up to 95 miles an hour?

We discover the PET scan findings that explain Prof. Berman's thoroughness of legal analysis ability? Should we remove him from his endowed chair, because of his diminished culpability?

A girl has a beautiful face, is thin, and exactly 5'7" tall. Should we cancel her $1000 an hour modeling contract because it is undeserved, and her features are involuntary?

How does the PET scan serve as an excuse when it really implies that the person will never change?

Posted by: Supremacy Claus | Dec 13, 2013 12:46:33 AM

I wonder whether we should have such a dichotomy between "brain" and "will." I have my criminal behavior students, before reviewing the theories of crime causation, discuss the meaning of Steven Pinker's quote about the psychology of criminal activity: "To explain behavior is not to exonerate behavior." I worry that this idea, which I think has at least some merit, may have been disregarded here...

Posted by: GP | Dec 13, 2013 9:29:54 AM

|"it showed low activity in certain areas of the frontal and temporal lobes linked to ... morality ..." |

That narrows it down to either a capital defense attorney/expert, a Lois Lerner follower, an evolutionary scientist, or some sort of combo thereof.

Posted by: Adamakis | Dec 13, 2013 10:41:01 AM

I'm never sure what to do about criminals whose brain abnormalities or mental illnesses make them (a) less culpable, but (b) more dangerous. On the one hand, maybe they don't deserve to be executed. On the other hand, maybe we as a society need to put them down.

Posted by: desuetude | Dec 13, 2013 12:00:00 PM

Dear Blogger , would you be kind enough to let us know the file number of that decision , or a link to it ( should have been tried at the district court of N.M ) .I was trying desperately to trace it , but in vain , thanks for your sincere efforts .

Posted by: el roam | Dec 13, 2013 3:51:28 PM

Three generations of imbeciles are enough.
Oliver Wendell Holmes. 1927 Buck v. Bell.

Posted by: Liberty1st | Dec 14, 2013 7:43:03 PM

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