The Path Whisperer

“A defendant’s fMRI brain scan has been used in court for what is believed to be the first time.

Brain scan evidence that the defense claimed shows the defendant’s brain was psychopathic was allowed into the sentencing portion of a murder trial in Chicago, Science reported Monday. Brian Dugan, who had been convicted of the rape and murder of a 10-year-old, was sentenced to death, despite the fMRI scans.”

http://www.wired.com/wiredscience/2009/11/brain-scan-murder-sentencing/

The intent of the defense was to claim that the defendant was not fully culpable due his psychopathy.  Did this strategy work?  Of course not. In the real world, do individuals ever forgive or absolve of responsibility their victimizers upon realizing the victimizer is a psychopath?  No.

fMRI Evidence Used in Murder Sentencing

Dugan exhibits the antisocial behavior, inpulsivity, lack of remorse, and other characteristics of psychopathy in spades, says Kent Kiehl, a neuroscientist at the University of New Mexico, Albuquerque, and the Mind Research Network, who served as an expert witness for the defense. Dugan scored 37 out of 40 points on the standard diagnostic checklist for psychopathy, putting him in the 99.5th percentile, Kiehl says.

Kiehl conducts research on psychopathy in New Mexico state prisons in which he and colleagues collect life histories, anatomical brain scans, and fMRI scans of brain activity as inmates perform various tasks, including tests of moral reasoning. Using scanners at Northwestern University, Kiehl ran Dugan through a similar battery of tests. Kiehl testified that Dugan exhibited abnormalities similar to those he and others have reported in other psychopaths. Kiehl says he was careful not to stretch beyond what the data show. He didn’t claim, for example, that the brain scans prove that Dugan committed his crimes as a result of a brain abnormality. “It’s just one piece of evidence that his brain is different,” he says.

. . .

[from the comments] I think it would be easier to sentence such a total psychopath to death because he is missing an essential piece of whatever it is that makes us human.

http://blogs.sciencemag.org/scienceinsider/2009/11/fmri-evidence-u.html.

I think that comment reflects the way people really think.

These legal strategists need to get out in the real world more.  Maybe take a Greyhound bus from Harrisburg, PA to Omaha, NE or just have beers at the corner bar more often.

Basically I like the idea of brain scans being brought into court — but for the exact opposite reason.  I think the psychopathic guilty would be found guilty more often than they are now.  And that they would be put away for longer sentences.  Juries would know that they weren’t dealing with daily reality.  I believe juries try very hard to walk in the shoes, place themselves in the position of the accused to try to understand the accused’s behavior.  But this assumes that the psyche they are trying to get into is similar to theirs.  This is simply not true for psychopaths.  Thus juries would have to think differently in approaching guilt and innocence in  trials of psychopaths — which I believe they could and should do.

Now obviously there could be a danger of such a situation being too prejudicial.  So this idea would need to be fine tuned, tried out with sample juries, etc. or confined to the most serious crimes or crimes with a high potential of psychopathic actors.  Perhaps it could be restricted to such felonies as pedophilia, child murder, rape and murder.

It would also open up the possibility of involuntary commitment of psychopathic individuals of danger to society, which would have different standards of evidence from a legal trial.  For example, the prolific serial killer Dr. Swango (http://en.wikipedia.org/wiki/Michael_Swango) should have been incarcerated in a mental hospital years earlier than when he was eventually found guilty.

Michael Swango, M.D.

For some background info and links:  Neurolaw and Psychopath (http://lawneuro.typepad.com/the-law-and-neuroscience-blog/2009/08/neurolaw-and-psychopathy.html).   The Law and Neuroscience Blog seems to think that brain/genetic research on psychopaths will “change our perception of their moral and legal culpability.”  We shall see.  I predict the exact opposite.

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