Sunday, June 27, 2010

Minds, Bodies and the Criminal Law

Consider the following case: A boy gets into an argument with a classmate. Tempers flare. The boy physically assaults his classmate, injuring the classmate. There is no question here of self-defense. Has a crime been committed?

All crimes have at least two things in common: A prohibited act and a mental state, typically intent, although recklessness and even mere neglience can support an assault charge. Although the law of assault varies from state to state, it is safe to say that all assault statutes share the same characteristics: If you strike another and cause inury, you are guilty of a crime.

But let's make this a little more complex. The defendant here had recently been in a motor vehicle accident. He struck his head as the cars collided. His doctors detected a mild brain injury. Brain imaging shows modest damages to the boy's prefrontal cortex. A neurologist prepares a report for the boy's lawyer stating that this mild brain injury affects the very portion of the brain that moderates aggression. In effect, the young man's trigger switch was defective: He too quickly moves from mild provocation to rage.

What does the law say in this case? Is the boy to be held criminally responsible for the assault?

This is no mere hypothetical question. I was consulted not long ago by a lawyer who had a slight variant on this fact pattern. (Note to lay readers: Fact patterns are the stock in trade of lawyers. We chart chaos' many vectors and then relate them to established legal doctrine. The intersection of factual vector and doctrine yields a foreseeable outcome.)

Connecticut has a new diversionary program called psychiatric accelerated rehabilitation. Under this program, a first-time offender suffering a mental disease or defect has a chance to avoid a criminal conviction. If granted accelerated rehabilitation, a person goes on a brief period of probation. After successful completion of this supervision, the charges are dismissed. This sort of program is called a diversionary program.

In the case of the boy with the damaged brain, the lawyer had done his homework. He prepared evidence of the brain injury. The boy's physician was prepared to testify if necessary. There was no question that the young man had suffered an objective injury that resulted in impairment. This impairment accounted for the conduct that brought the boy to criminal court. It would seem accelerated rehabilitation was the way to go. Get the lad treatment; give him a chance to fly right, if he can.

The problem is the lawyer could not get the judge to listen to the evidence.

In Connecticut, there are supervised pre-trials in criminal cases behind closed doors before things go on the record. Typically, the prosecutor, defense counsel and the judge meet in the judge's chambers to discuss a case and to determine how best to proceed. Often you get a pretty good sense of where a judge's head is at before the presentation of evidence in a case.

In the prefrontal cortex injury case, the judge heard what the defense lawyer was saying. The prosecutor had reviewed the evidence the defense was prepared to present, and was offering no real rebuttal. But after discussing the case with the judge, the defense lawyer came away with the conviction that the judge would not grant the program based on this evidence. What could he do about that?, the laywer asked me.

There's not much you can do with a judge who won't listen. We all know that you can lead a jurist to the courtroom but you cannot necessarily make him think. A judge is free to accept or reject even uncontested evidence in a hearing in which he makes the factual determinations. Getting an appellate court to reverse a judge's factual findings is virtually impossible.

I worry that despite advances in neurology, molecular biology and biochemistry, and better understanding of the relationship between mind and body, we are still applying voluntaristic and largely Victorian models of moral reasoning in the criminal courts.  Sure, there are times in which criminal conduct is freely chosen. But there are also times, many times, in which such conduct occurs in the absence of a culpable mental state.  How is justice served by assigning moralistic intent to folks who lack the capacity to control their conduct?

We recognize that justice cannot be served in such cases when it comes to the insanity defense, although that defense, too, is very hard to prove. But science teaches more and more each year that the line between mind and body is quite thin. A program that diverts folks with what I will call for lack of a better phrase a diseased filament tethering mind and body permits a defendant to seek treatment before being stigmatized as a criminal. Clearly in the case of the boy with a brain injury, something other than a felony conviction is required. It is not justice to punish the ill or injured.

I had no answer for the lawyer who called to complain about the judge with wooden ears. I still don't. But I am troubled deeply by this case. I wonder whether, when and how the courts will learn to accept the best evidence we have of the relationship between mind and body.

What are other states doing to make sure this evidence is given full and meaningful consideration?