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Revisiting the “epilepsy defense”: A teenager and a dead mom
Two months ago we wrote about the “epilepsy defense”. Now we read about a teenager killing his mother in the midst of a seizure. It’s a poignant and shocking example of why the ‘epilepsy defense’ appears to be valid under certain circumstances.
Karyn Kay was a 63-year-old single mom who worked as a teacher in midtown Manhattan. Her 19-year-old son (Henry Wachtel) has epilepsy. Their relationship was positive and there was no history of either abuse or violence between them. After Henry cut his arm on a cup during a seizure, Karyn had always held him in her arms when he had seizures in her presence.
As Henry’s seizure commenced, Karyn placed a call to 9-1-1. She reported her son was having a seizure and requested assistance. Fifty-eight seconds into the call, the 9-1-1 operator heard what sounded like an assault with grunting and screams. When the police arrived at the apartment, Henry let them in saying “It was a mistake” and the police found Karyn Kay “sprawled in a pool of blood on the kitchen floor.” She was dead.
The police, believing no one could be “accidentally beaten to death” arrested Henry and charged him with murder. Medical experts reviewed the 9-1-1 tape and and report they think Henry was having a ‘grand mal’ seizure and concluded Henry would not have had “conscious intent” to kill or harm his mother.
Contrary to the typically hostile comment sections for internet news articles, comments relating to this story were consistently sensitive and sympathetic to Henry Wachtel’s plight. Instead of cruel skepticism, they raised questions that conscientious jurors might also have in deliberations. One commenter wrote that Henry’s childhood was much more complex than described. An article in the NY Times raises questions about whether there is more to the story. The original article does indicate Henry was on Keppra (a medication that has been linked to increases in rage outbursts) and Prednisone (which also has been associated with rage reactions). He also acted in a film called “Our Time” about disillusioned teens with disturbed parents, which now cannot be separated from what we know of what ultimately happened.
It’s a complex picture but not with the pretty foreword painted by the Daily Beast article. Despite the 9-1-1 call, which shows the violence likely took place during or shortly after the seizure itself, when intent cannot be formed–the reality is that Karyn Kay was killed by her own son. It is a horribly sad story. And if Henry Wachtel is ultimately freed from legal responsibility–is there a risk to society? It’s a question we always ponder in the “my brain made me do it” defenses. And of course, for the huge numbers of people with epilepsy who will never display the slightest hint of epilepsy-related rage or aggression, the cloud of public ignorance surrounding their condition is even more burdensome.
We’ve written on this blog about sex crimes committed while the perpetrator was allegedly asleep or otherwise consciously not aware. Some of those defendants were acquitted and a few were found guilty. Is there a difference in culpability if the ‘offense’ is a sex crime rather than physical battery or murder?
If we think of the comments section as a (non-randomly selected) focus group–it is clear there is sympathy for Henry Wachtel. What about sympathy for Karyn Kay? Will she be seen as having a disturbed relationship with her son, as hinted at by some commenters? Is this just “one of those things”? It certainly is an area where there are no easy answers. We are grateful to the practicing physicians who wrote the original article on how to assess the validity of the “epilepsy defense” and grateful to Karyn Kay for placing the 9-1-1 call [which allows us to hear what was transpiring], as one of the final loving and responsible acts of her life.
Wortzel HS, Strom LA, Anderson AC, Maa EH, & Spitz M (2012). Disrobing associated with epileptic seizures and forensic implications. Journal of Forensic Sciences, 57 (2), 550-2 PMID: 22150773
“I punish you because you harmed him!”
Humans appear to be the only species who are willing to punish others who lie, cheat, steal or violate social norms even when they [the punisher] were personally unharmed or don’t stand to directly benefit from punishing the wrong-doer. The practice is called “third-party punishment”. Ironically, punishment itself is thought to have a foundational role in maintaining the level of cooperation in our modern societies. We obey rules and cooperate with each other to avoid punishment.
New research by neuroscientists [Buckholtz & Marois, 2012] indicates that we make decisions to punish bad behavior based on an evaluation of the actions and mental intentions of the criminal defendant. Rather than being impartial decision-makers who employ logic and rationality–much of our motivation for punishing seems to be driven by our own negative emotional reactions to the harm caused by the criminal behavior.
The researchers indicate that our amygdala (the part of the brain associated with emotional responses) causes us to combine our emotional responses to the actual behavior with the evidence we have about the situation itself. In other words, a juror has to integrate the information on their sense of the defendant’s mental state and the amount of harm done, with their own emotional reaction to the crime itself. So how do we keep the input from the amygdala (i.e., the strongly emotional input) from over-riding the evidence?
This is a constant tension in pre-trial research. We routinely see jurors that argue based on rationality and those who argue based on emotionality. We want to identify the most persuasive arguments for both positions and weave them into an ultimately effective trial narrative. But it’s about the brain. Our brains do things automatically. We are regularly reminded of this as we monitor the ever-increasing “my brain made me do it” defenses. Those defenses focus on ‘differences’ in the brain during the criminal act that (they believe) absolve the defendant of responsibility for their criminal behavior.
A recent fMRI-based Japanese study [Yamada, et al.], focused instead on what is occurring in the brain of the juror as they weigh ‘mitigating circumstances’ in a fact pattern that involves murder. Their results support the decision-making model proposed by Buckholtz & Marois in showing via the fMRI results, how various areas of the brain “light up” when sympathy enters into decision-making regarding punishment for the crime of murder.
In the Japanese study, the researchers identified several reactions in the brains of participants when given information on actual Japanese murders, mitigating circumstances for the defendants, and when asked to decide a punishment. Researchers watched as sympathy lit up different areas of the brain [e.g., the dorsomedial prefrontal cortex, precuneus and temporo-parietal junctions] than did decision-making regarding sentencing [e.g., the precuneus and anterior cingulate cortex]. The researchers report that mitigation appears to be based on negative emotional responses to murder, sympathy for mitigating circumstances, and the cognitive control to determine length of the punishment.
In plain English, decision-making was not a strictly rational process, but incorporates emotional judgments as well. We have known for years that Aristotle was simply wrong when he said, “The law is reason, free from passion.”. Or perhaps Aristotle was right about the “law” itself but not about how it is applied in serious disputes.
We are a people of both reason and passion. The law reflects reason and our interpretation of that law, combined with our life experiences and visceral reactions to the event, often reflects a complex combination of our reason and our passions. We know some groups of jurors have more sympathy for mitigating circumstances. We know some prefer a Dragnet approach to justice: “Just the facts, ma’am”.
In any group of twelve, you are likely to have those swayed by sympathy and those determined to apply the evidence to the law without regard for sympathy. What these two very different studies have to say to us is that all of us make decisions based on both evidence and emotion. Telling stories that speak to both ends of the continuum always serve us well, as your jury is bound to include both types.
Buckholtz, J., & Marois, R. (2012). The roots of modern justice: cognitive and neural foundations of social norms and their enforcement Nature Neuroscience DOI: 10.1038/nn.3087
Yamada M, Camerer CF, Fujie S, Kato M, Matsuda T, Takano H, Ito H, Suhara T, & Takahashi H (2012). Neural circuits in the brain that are activated when mitigating criminal sentences. Nature Communications, 3 PMID: 22453832
Have you been keeping up with the ‘sexsomniac’ defense?
It’s been used successfully several times since we first wrote about it back in December of 2009. In 2009, we told you about a landscaper named Jan Luedecke who got drunk at a party in 2003 and fell asleep. He woke up and then went to a woman asleep on another couch, put on a condom and raped her. She awoke to find a man lying on her. Mr. Luedecke’s defense was ‘sexsomnia’–he says he was “half-asleep” and he was acquitted!
“After the appellate court upheld Luedecke’s acquittal in February 2008, the woman told reporters, ‘I know what happened, and he knows what happened. I am not out for revenge, but I believe in accountability and consequences for actions, and he has not faced any of them’.”
And he isn’t the only one. Multiple male defendants have protested they sexually assaulted women while “asleep” and have been acquitted. Take a look at this story from November, 2008 and this one from October, 2009 and this one, from January, 2011.
While juries are reluctant to acquit based on “my brain made me do it” defenses, we have been following this area since we began our blog. Even though scientists working in the area generally believe we simply do not know enough about the brain to “prove” assaultive behavior is caused by brain “misfires” or “faulty wiring”–expert witnesses continue to testify to the contrary. In the instance of the ‘sexsomnia defense’, they have been able to convince jurors to acquit despite the fact that a woman has been sexually assaulted.
Finally, though, there is a ‘guilty’ verdict in a ‘sexsomnia defense’. This one has a twist though. The prosecutor pointed out all the inconsistencies in the defendant’s story by comparing the defendant’s story with the stories of sexual assaults found by juries to be driven by “faulty brain wiring”.
This strategy is akin to what we recently documented with the ‘epilepsy defense’ although, in that instance, despite documented seizures, the defendant was held accountable for his behavior and sentenced to jail.
In the most recent sexsomniac defense, 20-year-old Zack Thompson pled sleepwalking/sleep disorder and no recollection of raping a 17-year-old girl at a Portugese resort. Sleep disorder specialists tested him, found his behavior and subsequent memory loss of the event to be likely due to heavy drinking rather than a sleep disorder and he then pled guilty to rape. He is now serving 6 years in prison.
“Nottinghamshire Police sought guidance from experts about the condition and invited sleep disorder expert Professor Mark Pressman to assess him.
The American psychologist, who has more than 30 years experience with sleep-related disorders, found Thompson behaviour was not consistent with the actions normally displayed by sleepwalkers.
He added that his alleged memory loss was instead “highly likely” to have been the result of drinking excess alcohol.
On hearing the assessment, Thompson withdrew his sleepwalking defence and went on the claim he was “insane”.
This too was rejected by an experienced psychiatrist.
After two-and-a-half years, Thompson finally pleaded guilty to rape at Nottingham Crown Court on March 1 this year and has now been sentenced to jail.”
Essentially, this case was seen as different and the way the case was decided gives legitimacy to the sexsomniac defense. A quick web search on “sexsomnia defense and responsibility” yields multiple stories in both Europe and Australia of successful and unsuccessful defenses in this area.
You might notice if you read these links that the original story we blogged about was from Canada. The rest are from the UK. It raises interesting questions about the local popularity of story lines and why an explanation seems to gain currency in one culture or region and not others. The other common thread among the stories appears to be heavy consumption of alcohol, generally on the part of everyone involved.
It is curious to us. US juries seem to have little tolerance for letting rapists, gropers, flashers, and other sexual offenders go free despite concurrent physical circumstances. Our mock jurors push the theme of personal responsibility for behavior.
So we find ourselves at the same question we asked in 2009. Where does responsibility end?
Zaharna, M., Budur, K., & Noffsinger, S. (2007). ‘Sexsomnia’ disrupts sleep, threatens relationships, and has forensic implications. Current Psychiatry (July)
Image taken from Zharna, Budur and Noffsinger, 2007.
You are naked in public! Did your brain make you do it?
Wardrobe malfunctions. We know what they are. Some of us have had them. We can’t show you a picture of a wardrobe malfunction though because this is not that sort of website. Yet the question is simple: Can your brain make you disrobe in public without your awareness? As in, “it’s not my client’s fault your Honor because their brain made them do it”.
The short answer is yes. Yes. So they say. Your brain can make you disrobe without conscious awareness. So should you be held legally responsible for the shock (and perhaps awe) of others as you unknowingly engage in public nudity? These physicians say no, at least not usually.
They briefly review the skepticism directed at the “epilepsy defense” occasionally used in criminal trials. A famous example is from the defense of Jack Ruby. His attorneys said he killed Lee Harvey Oswald in the midst of an epileptic seizure and was unaware of what he was doing. There is, according to the authors, no real evidence of violent or criminal acts being linked to epileptic seizures.
However, the authors of this article are treating physicians, and they believe there are times when an epilepsy defense may be legitimate. These are times when people are legally charged for being naked in public and claim to have no recollection of how it happened (and evidently, with no alcohol, fraternity affiliation or ‘Girls Gone Wild’ involvement). When they have a history of seizure-related disrobing (apparently common enough to be written about here), the authors suggest that traditional legal consequences are inappropriate.
They share case studies of three patients who disrobed as part of their seizure pattern. Two of them were videotaped disrobing during sleep studies with EEGs documenting a simultaneously occurring seizure. The third was sleeping naked with his girlfriend and wandered into the hall, inadvertently exposing himself to her teenage daughter. (He was charged with and convicted of indecency with a minor and went to jail.)
For those instances where the public nudity is not deemed of a sexual nature, the physicians suggest the following ‘tests’ to determine if the public nudity is likely an artifact of the epilepsy.
The patient has a prior diagnosis of epilepsy, and the public nudity is out of character for the individual and “contextually inappropriate”.
Evidence of premeditation or attempt to conceal the behavior should not be present.
Available witnesses describe an apparent disorder of consciousness during the event.
The patient’s memory for the public nudity should be impaired.
There is much skepticism over “my brain made me do it” defenses. These physicians offer reasoned evidence for showing mercy in legal cases of seizure-related disrobing that may be public.
Wortzel, H., Strom, L., Anderson, A., Maa, E., & Spitz, M. (2012). Disrobing Associated with Epileptic Seizures and Forensic Implications Journal of Forensic Sciences, 57 (2), 550-552 DOI: 10.1111/j.1556-4029.2011.01995.x
fMRIs and Persuasion: Did anyone tell the jurors?
We all know that neuro-imaging is not ready for courtroom persuasion yet, but did someone remember to tell the jurors? Apparently not–but maybe they already knew.
Are “pictures” of the brain so persuasive that they can sway juror decision making? Even though the credibility of the medical experts has to be factored in, many people believe that when you include brain scan photos (as opposed to bar charts or topographical maps for example) the viewer is more persuaded. Even though there isn’t a chance in the world that an average juror can make sense of the image.
So, the current researchers decided to look at the effect, if any, of neuroimages using a fact pattern of a capital murder case. They were trying to sort out whether it is useful to focus mitigation arguments on neuroimaging evidence, since it could “create the impression the defendant is ‘damaged goods’ and beyond repair.”
The researchers presented the facts of a murder along with evidence (included in nearly all capital trials) of the likelihood of future dangerousness and evidence about the psychiatric condition of the defendant. They divided participants into 3 conditions:
The first group was told the defendant was psychotic.
The second group was told the defendant was psychotic and was given the results of neuropsychological testing discussing damage to the defendant’s brain (specifically, the frontal lobe).
The third group was given the diagnostic information and the test results but also shown color photos of “structural and functional scans of the defendant’s brain” and given descriptions of likely consequences with this sort of damage to the brain.
The researchers expected that the more information participants were given, the less they would choose the death penalty IF the defendant was adjudged to be at low risk for future violence. And they were wrong.
When mock jurors were provided only a diagnosis, and were told the defendant had a high risk of future violence, they were overwhelmingly more likely to give a death sentence (65% voted for death penalty) than other mock jurors. When they were given additional information (either a psychological testing summary or the testing summary with neuroimaging evidence), their imposition of the death sentence dropped dramatically (down to 12% voting for death penalty). If jurors assessing these ‘dangerous’ defendants were given all three forms of information, the death penalty was selected only 8% of the time.
Oddly, low risk of dangerousness only affected those jurors who were only given the diagnosis (but no supportive test data or images). ‘Diagnosis only’ mock jurors assigned the death penalty about 17% of the time (down from 65%), while diagnosis plus testing mock jurors chose the death penalty about 21% of the time and mock jurors receiving all three types of evidence chose the death penalty about 14% of the time (essentially the same as the ‘high risk of violence’ condition).
The researchers concluded that with high risk for future violence defendants, both neuropsychological testing and neuroimaging evidence reduced the likelihood jurors would choose the death penalty. Rather than being ‘aggravating’, this additional evidence was truly mitigating in the case of the high-risk-to-violently-reoffend defendant.
Our view is that this is consistent with what is frequently seen in juror decision-making: Jurors are much more comfortable accepting a high-risk proposition if they are comforted that they have a valid reason for doing it. This is most clearly seen in the high risk group, where they needed to be assured there is ‘scientific evidence’ that the defendant was impaired, not merely that the defense found an expert willing to make that claim. It also suggests that in the population used in the study, there were about 15-20% who were in favor of the death penalty regardless of mitigating scientific evidence.
It’s important to note that the neuropsychological testing results mitigated almost as much as the testing results plus the brain pictures. The verbal description alone (or verbal picture if you will) persuaded jurors. The researchers say it is possible that any additional information pertinent to the defendant’s condition ‘personalizes’ the defendant for jurors and thus may prove mitigating. We go with the former idea, as it seems unlikely that a psychological test profile or a description of neuroimaging studies causes anyone to become more ‘personal’. The jurors simply want reassurance that they are working off more than one person’s opinion.
For the practitioner, this says you don’t need bells and whistles [like brain scans] to successfully mitigate. But you do need solid and scientific information, well-presented using language and examples jurors can understand. That testimony can save a life.
Greene, E., & Cahill, B. (2011). Effects of Neuroimaging Evidence on Mock Juror Decision Making Behavioral Sciences & the Law DOI: 10.1002/bsl.1993
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