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DNA, insanity, brain imaging—an  update on all things neuroscience

Tuesday, February 13, 2018
posted by Douglas Keene

It’s been a while since we updated the neurolaw area of the blog so we’re doing a combination post to alert you to a number of things we’ve seen coming across our desks. Think of these as things you can use to show colleagues how incredibly well-read and erudite you are while simultaneously dazzling them with your brilliance.

Did your brain make you do it?

Originally, this area of inquiry was frightening as some wondered if the new neuroscience defenses would dazzle jurors into excusing bad behavior because the defendant’s brain “made him do it”. As excitement over the pretty pictures of brain scans cooled, what we’ve found is that neither judges nor juries are particularly swayed by genetics. While an exciting possibility upon which to build a defense, it just hasn’t been persuasive in court. But now we have a new wrinkle in the making.

If you are a football fan, you may have heard of the issues with the NFL and the high rate of CTE (chronic traumatic encephalopathy) among former players. CTE is a degenerative brain disease that often looks much like ALS and now, attention is being focused on repeated concussions as related to the development of CTE. ESPN recently carried a story on the plight of the women married to former NFLers who struggle with the burden of medical costs and caregiving related to CTE. And also, even if you are not a football fan, you may have heard of former New England Patriots tight end Aaron Hernandez who was convicted of murder and then hung himself in prison. His autopsy revealed this young man had “stage 3 of 4 of the disease and also had early brain atrophy and large perforations in a central membrane”. His family is suing the NFL and the suit is being referred to as “the CTE defense”. We’ll see where this one goes.

The MacArthur Foundation (home of the genius grants) has published a G2i knowledge brief

And what is that, you may wonder? G2i refers to “the challenge of reasoning from group data to make decisions about individuals”. [Read: Group to Individual.] Neuroscientific experts will often offer evidence from group data on how adolescents are less cognitively mature. Psychologists will offer factors contributing to eyewitness misidentification or to estimates of “future dangerousness”. All these kinds of testimonies are based on generalizing from group data to an individual person.

This brief helps you to understand the differences between group data and conclusions drawn about individuals. It is a must read document and, fortunately, it is written clearly and well so you don’t really have to be a genius to understand it.

Can fMRI’s tell if someone is lying about having chronic pain?

No. A recent international task force has released recommendations that “advise against” using brain imaging to test for whether someone is experiencing chronic pain. So how can you know if someone has pain? “The only way to truly know if someone is in pain is if they tell you because pain is subjective and it is a complex experience. No brain scan can do that.” The researchers say they continue to search for biological markers of pain but they have not yet reached that point.

When ‘not guilty’ is a life sentence

This is a very well-written article from the New York Times Magazine on what happens when someone is adjudicated “not guilty by reason of insanity”. It is a really nice example of long-form journalism that tells a story of just how hard it is to be released when you’ve been found NGRI.

In fact, despite its reputation as a “get out of jail free” card, the insanity defense has never been an easy way out — or easy to get. After a defendant is charged, the defendant, her lawyer or a judge can request evaluation by a psychiatrist. A defendant may be found incompetent to stand trial and committed for rehabilitation if she isn’t stable enough or intellectually capable of participating in the proceedings. If she is rehabilitated, she may be tried; if she cannot be, she may languish in a psychiatric hospital for years or decades. But mental illness is not exculpatory in itself: A defendant may be found mentally ill and still competent enough to stand trial. At that point, the district attorney may offer an insanity plea — some 90 percent of N.G.R.I. verdicts are plea deals. If the district attorney doesn’t offer a plea, or the defendant doesn’t take it, the case goes to trial. The defendant may still choose insanity as a defense, but then her case will be decided by a jury.

This article is part education on the system works and part story of how sad and frustrating it can be for a person who was mentally ill and committed a crime but is now treated and no longer dangerous. Yet, how do you convince a judge (or even the facility staff) that you are safe to release back into the community?

Recidivism for N.G.R.I.s is relatively low. Whereas, nationally, recidivism for released prisoners is above 60 percent, “people who are found N.G.R.I. tend to go back out into the community, and they tend to do really, really well,” Fitch says. The arrest rate for people in Maryland on conditional release, a kind of mental-health parole from the hospital, is less than half the arrest rate of the general population in the state. “If you provide treatment of illness and provide the supports they need, then they don’t reoffend,” Fitch says. As a 2016 study of N.G.R.I. recidivism in Connecticut — which has a post-release supervision program, too — also concluded: “The vast majority of individuals are not rearrested.”

It’s a sad and frightening story of a man caught in the system and the inconsistencies in the process for release. It is a good human interest story and a potentially good use of your pro bono time to help NGRI defendants return to the community after “sentences” to psychiatric hospitals that are typically much longer than the prison sentences they would have served.

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