THE BRAIN INJURY DEFENSE 10/22/06

sapphoq healing tbi says:
The URLs below and snippets contained therein were culled directly from Google searches. Under the law, a defendant is entitled to the best defense possible. Unfortunately, traumatic brain injury is one of the strategies that a defense attorney will use to argue culpability, capacity to stand trial, or mitigating circumstances for horrendous crimes.

"I did it but my tbi makes me not responsible for what I did."
"I did it but I should not have to answer to a jury of my peers for what I did because of my tbi."
"I did it but I deserve less punishment for my crime because my tbi influenced me."

We who have traumatic brain injuries need to come out against these sorts of excuses for bad behavior. If we want the same freedoms that non-disabled folks enjoy in society, then we also need to take the same responsibilities for our actions just like anyone else.

Read on for an edumacation in defense lawyer speak. And please remember that all of the words quoted below each url were pasted directly from the same.



http://www.adn.com/news/alaska/story/8220755p-8117520c.html
The defense argued that McClain suffered a traumatic brain injury, and that while the murder was horrendous, what he did to Friedman did not amount to torture.
Before the murder, said defense attorney John Bernitz, McClain fell on a bolt in his father's shop and punctured his skull -- an injury that affected his ability to control his emotions. McClain said he worried about changes in his own behavior and tried to get help but couldn't.
...McClain raped, sodomized and beat Friedman with a bat, court records say. He tied her up, shaved her head and made her look in the mirror at her disfigured face, telling her "Do you think any man will want you now?"

http://www.adn.com/news/alaska/ap_alaska/story/8221864p-8118651c.html
...[Jerry McClain, Anchorage AK, defendant] said a medical system that refuses to help people like him when they ask for help has to share some of the blame for what happened.
"This was a preventable crime, your honor," McClain said.
Before the murder, said defense attorney John Bernitz, McClain fell on a bolt in his father's shop and punctured his skull, an injury that affected his ability to control his emotions. McClain said he worried about changes in his behavior and could not get help.

http://www.montereyherald.com/mld/montereyherald/news/local/15748470.htm
Defense attorney Jim Dozier hopes to show that Allen Dalton, 47, suffered a brain injury during events leading up to the murder of Apineru "Chico" Sua in April 2004.
.At the apartment, Breeden said , Dalton, Burnett and others decided Sua was responsible for Dalton's beating. They beat him and kept him in a closet overnight. He was taken to Fort Ord the next day and killed.
An autopsy report showed Sua was stabbed 20 times in the head.

http://www.citizen-times.com/apps/pbcs.dll/article?AID=200661013082
Defense attorney Sean Devereux maintained Byrd couldn’t form the intent — an essential element of attempted murder — to shoot his wife because his brain was damaged from numerous head injuries suffered during years of riding bulls on the professional rodeo circuit.

http://www.mindfully.org/Reform/2002/$11-Theft-25-Life15nov02.htm
SANTA BARBARA, CA—A Ventura County career criminal was sentenced to 25 years to life in prison under California's three-strikes law for stealing $11.53 worth of goods from a grocery store.
Ronald Herrera...already had 17 serious felonies under his belt before the January theft at a Carpinteria Von's supermarket...His oftentimes violent criminal resume included a 1971 home-invasion robbery and rape of a woman and her 15-year-old daughter in Ventura, the shooting of a police dispatcher and six armed robberies in Virginia...

...The defense contended that Herrera had suffered a brain injury as a result of the 1986 accident on the San Diego Freeway. They hired experts to conduct... tests at the cost of $20,000 of taxpayer funds to testify Herrera’s brain was probably damaged because of the auto accident and his memory problems affected his ability to recall the fact that he had actually stolen a number of items from the store.

http://www.cobar.org/opinions/opinion.cfm?OpinionID=5362
Defendant then retained a brain injury expert who was expected to testify that defendant received a head injury in the accident that so incapacitated him that he did not knowingly leave the accident scene.

http://www.cnn.com/2003/LAW/12/08/janklow.trial.ap/
Evans held up Janklow's mangled glasses and asked how he could not have suffered a head injury. That explains why Janklow thought he was hit by a white car and made other unreliable statements, Evans said.

http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=04-2398.01A
The attorney and Wiggin's mother submitted affidavits stating, inter alia, that Wiggin (1) had broken his neck in a 1997 motorcycle accident and had subsequently suffered memory loss and a reduction in cognitive capacities, (2) had abused marijuana and cocaine for years, (3) had unwisely rejected the favorable plea offer, (4) had had difficulty remembering events and providing non-contradictory answers to his attorney's questions, and (5) had not given his attorney important details about the criminal case prior to trial. Wiggin's attorney attempted to explain the belated timing of his motion in an affidavit, stating that he "was first apprised of Mr. Wiggin's memory loss and his reduced cognitive ability on the fourth day of the [six-day] trial by his mother and his girl friend."...
Two psychologists testified for the defense, having examined Wiggin after the trial had concluded. The first, Dr. Alexandria Weida, a forensic psychologist for the Commonwealth of Massachusetts, stated that she had met with Wiggin on two occasions...
...At least one of the meetings was in March 2004; the date of the other is not clear from the record...and administered various psychological tests, including the Bender-Gestalt test and the Wechsler Memory Scales. She testified that when she asked Wiggin whether he understood terms such as "conspiracy," he answered in the affirmative but could not provide a coherent explanation when pressed for details. She also said Wiggin was "confused" about the role of his attorney and the consequences of plea bargaining. Dr. Weida concluded that at the time of the trial, Wiggin was not able rationally to understand the proceedings and charges against him and was not "competent to fully assist his counsel."
The second psychologist, Dr. Frederick Kelso, met with Wiggin in May 2004 and also concluded that Wiggin had been incompetent to stand trial. Dr. Kelso cited two causes: (1) a mental defect and cognitive deficits caused by mild traumatic brain injury, and (2) the mental disease of cocaine abuse. Dr. Kelso testified that Wiggin had a "minimal understanding" of the concept of conspiracy. He stated that he had administered a test that showed Wiggin had trouble thinking in abstractions; the sort of results he observed were "very commonly seen in certain kinds of patients who have suffered a traumatic brain injury."...

Dr. William Ryan, a forensic psychologist with the Federal Bureau of Prisons, testified for the government. Dr. Ryan testified that he had interviewed Wiggin in the fall of 2003 ... during Wiggin's stay at a federal prison, which he believed lasted from "October through pretty late in December." and had subjected him to a test called the Minnesota Multiphasic Personality Inventory, 2nd Edition. He stated that Wiggin's results indicated that (1) he had basic comprehension skills and could understand and consistently answer true-false questions...
...By "consistently answer," Dr. Ryan testified, he meant that Wiggin gave answers that matched up logically with answers elsewhere on the test. For example, if a test-taker were to mark"true" next to the statement "I am always depressed," he would have to mark "false" next to the statement "I am never depressed" in order to be answering consistently. Dr. Ryan testified that consistent answers indicate that "the person is understanding the questioning."and (2) he was exaggerating any mental illness he suffered, suggesting "either a cry for help or some deliberate attempt to portray himself as very mentally ill." Dr. Ryan testified that he had spoken with staff members at the prison where Wiggin was incarcerated and had been told that Wiggin functioned adequately and understood directions. He also testified that, during an interview, Wiggin was able to count backward by threes, indicating an ability to concentrate, and was able to give adequate definitions of legal terms such as perjury, witness, verdict, and sentence. Wiggin was unable adequately to define several other legal terms when first asked, but when Dr. Ryan explained them to him and then asked later if he remembered what they meant, Wiggin was able to recall the definitions.

http://www.publications.ojd.state.or.us/A107806.htm
Petitioner was indicted on two counts of aggravated murder, one count of intentional murder, and two counts of rape in the first degree.
...in the penalty phase of petitioner's criminal trial, a licensed clinical psychologist, Dr. Wise, testified that, based on psychological tests he had administered to petitioner, he believed that petitioner suffered from "moderate to severe" frontal lobe dysfunction that caused him to have difficulty controlling his impulses; that he attributed petitioner's dysfunction to an organic brain or head injury; and that the causes of such an injury could include a fight, bumping a windshield, receiving a whiplash injury, or playing "aggressive rough football." In her closing argument in the penalty phase, the prosecutor, Champion, argued:
"Let's examine Dr. Wise's testimony. There is a temptation to assume there is some sort of link between what he finds to be brain damage and what happened to [the victim] and I submit to you that there is not a connection. And here is why.
"He tells you that loss of brain cells and brain injuries is not unusual. Happens to a lot of people every year. If it happened to this Defendant wouldn't you expect to have seen something before now? Wouldn't you have expected that you would have heard testimony from somebody that said he was hit in the head or someone that said he went to the doctor or someone who said he exhibited something. That he did it under ordinary circumstances rather than having an individual that is under control when he wants to be."
The post-conviction court found that Champion's remarks were not a comment on petitioner's failure to testify during the guilt phase but were a non-objectionable argument on the weight the jury should give Wise's testimony.