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Wednesday, May 26, 2010

Neuroscience and design: FMRI flops in first criminal trial

A friend notifies me to look here re neurolaw and the death penalty. He writes,
The threads of the Jeanine Nicarico murder case are too tangled to attempt even a summary. Suffice it to say that an innocent man was sent to death row, and before it was all sorted out police and prosecutors were charged with fabricating evidence and there hasn't been an execution in Illinois in over a decade. The final act played out last November in a suburban Chicago courtroom where the real killer, Brian Dugan, asked a jury to spare his life. To assist, his lawyers ... presented fMRI images -- a first in a U.S. criminal trial. The pictures revealed that parts of the brain that light up in normal people remained cold and dark in Dugan's brain. The defense expert described these areas as regulating impulse control and emotional reactions. In short, Dugan was a classic psychopath, and the fMRI helped to prove it.

Although prosecutors had tried to keep the evidence out by challenging the science behind it, the judge ruled that under the relaxed standards of mitigating evidence in a death penalty case, it should come in. Fearful of "The Christmas Tree Effect" dazzling jurors with colorful snapshots of Brian Dugan's grim interior life, the judge originally ruled no images could be admitted. Later he reversed himself, and Dr. Kiehl, a New Mexico researcher who hauls an fMRI trailer from prison to prison for grant-fueled research on criminals, was able to show the jury the cold, dark spaces that he claimed correlated to the brutal sexual assault and murder of a young girl. Brian Dugan's brain was to blame and they had the pictures to prove it.

Apparently the jury did not appreciate how being a psychopath worked in the defendant's favor. They sentenced Brian Dugan, broken brain and all, to death. .

The jury may or may not have discounted the science, but they probably bought it to the extent they understood it. The point is, they refused to split Brian Dugan into a legally responsible entity on one hand, and a broken brain on the other. They may have judged him to be a bad person, but they saw him as a package of damaged goods that was nonetheless a person, and one deserving of the ultimate penalty. Arguably, adding advanced neuroimaging to the proof that Dugan was a psychopath may have actually hurt Dugan more than helped him. There was no suggestion that he could not appreciate the wrongfulness of his acts or keep himself from doing them. Scientific proof that Dugan was a cold, remorseless killer is not considered to be the best mitigation, but the defense lawyers had been dealt a bad hand in a high stakes game and thought the broken brain card was worth playing. One of his lawyers said this case was "unique" and did not foresee frequent use of the technology.

Note that this worked out exactly as I predicted the last time I wrote you about the neurolaw fad in academia. In its first real test, jurors shrugged and voted for death. It will never play in Peoria.
My sense of the situation is as follows:

1. Advanced Western democracies do not need the death penalty because we can just keep people locked up until they are no longer dangerous. Dramatic strategies, such as the death penalty, tend to glamorize crime. By contrast, a guy who pounds out auto licence plates for 25 years to earn himself packs of smokes, to get him through the night in prison, is not glamorous.

2. I am not surprised that the jury didn't believe it. The key question is not "what is going on in that guy's brain" but "what steps could he have taken such that he would not have committed a fatal assault? If he did not take them, why not?"

3. I don't think "neurolaw" has anything to contribute. If adults are truly not responsible for their actions, they should be living in a supervised group home. At least, that is how we have usually done it here, and it works pretty well. I mean, if you go by the fact that my own country, Canada, is a low crime/low threat jurisdiction.

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