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

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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

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“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.

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