tv Kevin Davis Discusses The Brain Defense CSPAN May 27, 2017 3:16pm-4:04pm EDT
thank you all for joining us this evening i'm maria one of the event coordinators here at the bookstore and i have the pleasure of introducing kevin this evening. a quick reminder to silence your cell phone if you haven't yet and encouragement to check out our kartd of events at the bookstore and we have pam net of our march and april events on table bit popcorn. we have a wonderfully full calendar and authors coming up including this evening kevin davis is award-winning journalist and former crime reporter work appeared in u.s. today and the reader and other publication author of the wrong man, defending the dam ited, and most recently the brain defense murder in manhattan, and dawn of neuroscience in america's courtroom which has been praised in countless glowing reviews. wall street journal hailed as excellent and review called it thoroughly researched clearly presented and engaged and explore the.
it is a story of connections, between science and law between psychology and justice. between the gray matter of our brain and the influence for good or for ail, but it can yield on world around us. around us -- it is a story of the equally thought connections between us of what we owe and offer a each other within systems offered to keep us safe. it is a story of where they -- it which is to say we feel and where we can improve. from the 19th century for who claim to have acknowledged to have organ of destructiveness to scientist struggling to keep up with expansion of their discoveries. kevin davis track ared fascinating and vital effort to understand our minds. which is to say ourselves. in the course of this journey grapples with massive questions of free will, self-determination, but never loses sight of the fact that these about a subtract concepts manifest in very real ways in lives of very real people and all people are capable of terrible violence, yes.
but also tremendous empathy, incredible perseverance and share brilliance from the heart of this remarkable account. welcome me in authoring kevin davis to the bookstore. [applause] >> thank you, thank you for that beautiful introduction. i was really terrific. thank you for hosting the -- so excited to see so many people here who are interestedded in the brain. i've spent probably the last four, five years doing a lot of thinking about our brains. i've been immersed in brains more than i ever imagined i would and i've been thinking about how they work, how they now function, how they surprise us and amaze us as well pep and i'm thinking how this mound of tissue filled with billions and
billions of neurons derls who we are -- what we think, how we think, and whether we really have free will or not. and so i've been looking at how brains influence or behavior and how they control or how they fail to control our impulses. i've woundered why can some stop themselves from doing they know it wrong and why others are unable to stop ourselves from doing something that we know is wrong it happen it is in our everyday lives all of the time we make these decisions about -- whether we can control our impulses or not. so -- here's what i mean, have you ever really gotten really, really mad at somebody? your spouse, your significant other, your children -- the person who cuts you off in traffic. [laughter] and then if i could just kill that person. right -- but most of us, of course, we don't because we know how to put the brakes on our behavior.
no matter how angry we get with somebody -- we most of us i don't know if there are any convicted felons or murderers in the room if you are excuse me. but we control our thoughts we don't translate our homicidal thoughts into actions. so i'm going to tell you about a story named herbert weinstein and a he bert weinstein was a friendly mild mannered advertising salesman in new york city. he lived on upper east side with a second wife her name was barbra. and his first wife had died of a -- of cancer and he had actually nursed her during her dying days and was a very loving husband. he let barbra about a year or so after his first wife died. barbara was divorced. and a the couple met through a mutual friend in new york, and they fell in love pretty quickly and they were the envy of their peers. they loved new york. they loved walking up and down the street going to restaurants. going to shows doing all sorts
of thingings together. everybody described them as really a tight and loving couple they would hold hands wag down the street. and herbert weinstein known as a real gentlemen he was a lover of books a lifelong student self-improvement and prided himself on his calm demeanor. he was also pretty cool under pressure. people really noted that about him -- but sometimes weinstein and barb ra fought as couples do from time to time. one night they get into an argument, and they're talking about their children. and weinstein had had called barbara's daughter a spoiled brat and she called his son making fun of his weight and job and weinstein decided he's not going to talk anymore but barbara kept talking and this infuriated her everybody more while weinstein sat there and listened. so during the heat of the argument, she swiped at his face
and slashed him under the eye. weinstein calm until that moment lost it. he went for his wife's throat and he put his hands around her throat and he squeezed -- he squeezed, and he squeezed -- until she fell down to the ground apparently dead unconscience. wine spine panicked. he dragged his wife over to the bedroom. opened the window, they lived 12th -- on the 12th floor. and he picked her up and hurled her out the window. his idea was he thought he would make it look like a suicide. but the cops figured out pretty quickly weinstein fold under questioning and he admitted what he had done he said i lost it. i just simply lost it. so weinstein was a man ever means so he was able to hire a very good lawyer. on the upper east side of manhattan. and after his lawyer had spoken
to weinstein he thought this just really seems so out of character. this whole case is so odd. he said i'm going to send qien sign for some psychological testing a psych workup. just to see if there might be something going on. so doctors found nothing -- wrong on the surface with weinstein. he was a little detached it was sort of odd that he wasn't really reacting to this -- horrible trauma that had just occurred so about three months after his arrest, his lawyer decided to go for an mri to see if there anything going on in hs brain and they take an image what appears on screen was stunning in the next room they had seen a big black -- hole or which repghted represented a cyst size of an orange growing over o his left frontal lobe in the lawyer said i've got my defense.
so thus this was born this idea of the brain defense. so the brain defense is the the term that i use throughout the book -- to describe a phenomenon, a growing phenomenon in the legal system in which lawyers are using neuroscience to explain, defend criminal bhair and they're bringing neuroscience to diminish a defendant's responsibility an they're saying that brain dysfunction whether it is caused by drug abuse -- alcohol abuse, tumor, genetic anomaly, cancer should be considered -- in determining whether people fully are responsible for their crimes and how it should affect the severity of their sentences. and this is not just some o occasional thing. this is happening now four to 500 times year and that's just doubled in which lawyers have
brought brain defenses into the criminal court. in just this morning there was a story in "the new york times" ab teenager in israel who was arrested on -- on for making anti-semitic threats a bomb threat to community centers and synagogues and sure enough, his lawyer said that he has a brain tumor so this is something folks that we're going to to see probably a lot more of. and a it has far reaching comble cases just beyond this. i write about it in the book how lawyers have been suggestings that concussions are are now partly to blame for violent behavior by football players off the field. other lawyers now are say suggestings traumatic brain injury along with ptsd, are factors that are influencing the violent behavior of some veterans. who have returned from combat. so we're seeing more that have. and so as a result, judges and juries are being asked to ponder very, very complex questions --
in science is how it relates to human behavior. being asked to ponder whether we have free will or o not whether we control our brains or whether our brains control us. so it's pretty deep stuff and heart of the brain defense in my book that uses qien sign case as an entry point to -- go into a world where science, morality, and the law intertwine in ways that we may have never thought about before. so i was a crime reporter back in the mid-80s to 90s and south florida this was the time when show miami wife was very popular, and south florida was like the wild west out there. there was -- crime are it was out of control. we were having drugs and violent drug lords coming from central and south africa. homicides were up, and i had
seen as a reporter all of the horrible things that people can do to each other. and when i was working on my last book, defending the dammed which was about public defenders i saw how lawyers work really lard to humanize people who have done very inhumane things to each other and they often did this by claiming that their clients were damaged in some way. because of childhood, poverty, drug or alcohol abuse. these were all factors that sometimes brought some compassion and understanding to their clients not necessarily exonerating them or completely but qowld lead sometimes people to get treatment instead of inconsiders ration or instead of the death penalty. so this idea that law might consider a person's mental state in determines of responsibility goes back to ancient times.
the greeks which had created a court system they wanted a system that would turn people's thirst for vengeance into something more understanding more civilized. weem were held accountable for what they did but also included a humanistic side where the greeks thought it was important to understand the mind of the offender. they thought they recognized that those people who was suffered from diseases of the mind and a should not be held responsible to the degree of their mentally healthy count parts and mercy because they lack the ability to make voluntary choices. in making voluntary choices really is at the heart of criminal law. ...
neuroscience to suggest the clients don't necessarily have a guilty mind or free will, that is where things get complicated. neuroscience, tells us anything we do whether it is to commit a crime or feed ourselves or anything we do is triggered by a series of chemical and electrical interactions, neuroscience shows where it is occurring, so we can see in real-time pet scans. they can monitor which parts of the brain are engaged when we are doing different activities
people perform under the scanner, whether people are frightened or angry, there have been brain scans and studies that show where those interactions occur and neuroscience can show if we have brain damage, areas around the damage are functioning at capacity or properly but what neuroscience can't do is prove that somebody committed a crime at a specific time because their brain made them do it. people don't have brain scanners attached to their heads when they commit crimes anyway. what we are seeing generally in brain scans are scans that may take months or years after the crime occurred. that is not what it is for. it doesn't show cause and effect. the other thing to consider is not all people with brain damage
become criminals. not all people who come back from combat become violent. not all football players are violent. things get very complicated in trying to make these linkages. the forces that make a person commit a crime come from many different factors, nature and nurture. every thought, every decision, everything we do day-to-day is a culmination of wife experiences and biology. as i was delving into the brain looking into brain science i kept coming across this case of herbet weinstein. he appears in scores of textbooks and medical journals and law reviews, one of the most widely studied cases in the burgeoning intersection of neuroscience. like a lot of other people i was really puzzled to understand why a man of no history of violence
would murder his wife. i wondered if this growth in his head, a sister the size of an orange had discussed -- cause enough brain impairment to explain or excuse what he did. in all the legal and medical journals no one told the story, no one ever spent time understanding who herbet weinstein was. he was more of a case study. i wanted to get behind the scenes and learn more about the case opening a whole new era in america's court rooms so along the way, investigating this, i took out court files and interviewed people who knew herbet weinstein, transcript of the case to put this case together. i also found a long fascinating history about the history of brain injuries and how they affect personality and behavior. one of the most unusual and
famous cases that you have heard of is phineas gage, the most famous case in neuroscience. he was a railroad worker in the 1840s who suffered a horrific on the job injury. he was preparing an explosive charge to clear some rock, to make way for the railroad and using a tamping iron to tap down the explosive charge. tamping iron is a rod about this big, made of metal. while he was doing it it set off a spark. what happened was it shot off like a rocket, it shot through his eye into his brain and out the back of his head and landed several feet away. not only does gage survive this which was amazing enough but he was chatting to the people as he was carted off for medical care but what made this case important in the world of
understanding brain and behavior and neuroscience was gage's personality was said to have changed significantly after this accident. he became rude, erratic, he was a changed person. his doctors said, quote, he was fitful, irreverent and grossly profane. since then it has been widely accepted that the change in gage's behavior was directly tied to his brain injury and it is important because it linked specific behavior to a specific part of the brain, the prefrontal cortex, so it was the first case documented to tie frontal lobe injury to behavioral changes. from this spring this idea that
if you sustain brain damage, particularly in the frontal lobe you may experience mild to profound changes in your personality and those changes, you can use them as a criminal defense. decades of research following the gauge incident confirm the ideas at the frontal lobe is the area we have executive function and certain behaviors tied to that area and if the frontal lobe is damaged it can impair your judgment but that is not enough to make a legal case. not enough for a legal defense with an insanity defense which is used in court is very rarely required that a person cannot understand or appreciate the nature or consequences of their actions as they don't understand the difference between right and wrong. the insanity defense is for people who have serious psychotic problems, mental
illness, other mental health problems, very rare, tough case to prove. right now most of the time the brain defenses are used, when i say brain defense, neuroscience in a courtroom, brain scan is in death penalty cases, use during hearings called mitigations, where persons has artie been convicted of a crime or murder in this case and lawyers try to get them life and do this in the mitigation hearings which has more relaxed rules of evidence and they can be present's friends, family, they can bring a brain scan, show that this person is damaged and talk about poverty and they are successful in this realm using brain science to help their clients get life instead of death so in effect lawyers are all but expected to do this now, cases where people have been sentenced
to death and their lawyers file appeals claiming ineffective assistance of counsel because their lawyers didn't order brain scans during sentencing. it is a matter of routine but the brain defense is also emerging in very unusual and extreme ways. i went to florida to meet a lawyer who every one of his clients has been through a brain scan. doesn't matter if it is for dui or first-degree murder and they have to pay for it which costs $3000. it is a rich person at defense, most people can't afford to do that, most public defense options would report for brain scan so this is extreme. i would like to read a few pages from my book about this particular lawyer to give a taste of what i have written. the type is bigger than it is there and my ice is not so good.
not one healthy brain. on a steamy july afternoon in florida's panhandle a thunderstorm is moving fast. the heirs, clouds turning black. stephen cobb, criminal defense attorney, pulled his rented white suv into the parking lot of the oval is a county courthouse in fort walton beach and asked inside just before move - just before the storm released its fury. he is just a few minutes for a court appearance and heads up to the third floor where he takes a seat on the bench, in the hallway and flipped open his laptop. he puts on a display of color-coded images of the client who is doing court for sentencing hearing, a young man who was in the airport, charged with soliciting sex with a minor over the internet. cobb is reviewing images that were taken for single photon
emission, it is similar to a type scan and shows brain functioning using a radioactive substance as a camera to create 3-d pictures. cobb holds up his laptop to show the image to counsel interns to me. reasonable brains do reasonable things, he says with unreasonable brains do unreasonable things. he has an unreasonable brain. when he gets his chance he explained to the judge what he means by a reasonable image. as we speak his client walks in. a tall man in a navy suit with short hair, with his parents and girlfriend with other supporters from eggland air force base, they walk into the courtroom where another proceedings is wrapping up before today's proceedings,'s client ryan was 29 years old, agreed to plead guilty and is now facing sentencing and possibility of
prison, it is to present a package including brain scan, the client suffers brain dysfunction, with treatment might dissipate blues not long after he was arrested he tried to kill himself by cutting his wrist. he was hospitalized for a prescription for prozac. he received probation along with treatment as an alternative to prison and to support his case cobb has a 3 ring binder. his client was scanned and underwent a full psychiatric examination. the clinic specialized in this imaging and treatment of various mental health disorders. cobb begins with a variation of what he said in the hallway. your honor, ryan does not have a normal brain image. he has an abnormal brain scan. conscious decisions made by
someone with an abnormal brain are not the same as conscious decisions made by someone with a fully functional brain. cobb may be the only lawyer in the country that asked every one of his clients to get a brain scan and he has been doing this since 2006. what he has seen, he tells me is shocking. not one healthy single normal brain in seven years, not one. just as an aside when i interviewed him i asked if he ever had his own brain scans. he said he did and it wasn't normal. back to the chapter. healthy, normal range are relative terms open to interpretation but cobb says what these images show and he confirms with professional
medical diagnosis is evidence of mental health problems worsened by drug and alcohol abuse. cobb asks his clients to get brain scans not because he thinks it will all the love criminal responsibility or help them get not guilty verdicts. he orders them because he believes the images and the company reports will convince the client and judges that they need treatment and should receive compassionate sentences that take into account brain dysfunction. the real issue is what do we do with these people when it comes to sentencing, cobb says to me. this is where brain imaging and neuroscience become vital. cobb doesn't attend to be a scientific expert. he hires other people to do that. he is a lawyer and what lawyers do is readily admits to prepare a defense and at the same time prepare mitigation in case his client is found guilty or decides to make a plea
agreement. most clients do not meet the legal criteria for insanity so he doesn't waste time going down that legal avenue. he tries to get help because of their broken brains. cobb told me he became a student of the broken brain in 2006 when he came across a book called change your brain, change your life by doctor daniel eyman was a psychiatrist, clinical neuroscientist and popular television personality who talked about good brain health. is the selling book billed itself as the breakthrough program for conquering anxiety, depression, anger and impulsiveness. includes case studies, brain images and a prescription for improving brain health through natural remedies which are available to his clinics and his website. i read this book and file these images, healthy brains, problem brains, the visual effect is clear. why not get similar images for
his clients who seem to have mental health issues? medical experts could then create customized psychiatric reports with specific diagnostic material to help his clients. when i first start doing this i thought i might find slight brain problems but i found they were so odd, out of the ballpark they were amazing, he says. the imaging is not a magical thing. is a tool like anything else but it is important to use it. that is a taste of a chapter from the brain defense but using neuroscience in court the way cobb has done is controversial. lawyers battle over whether this should be admitted as evidence. they battle over it you said its meaning and its value. despite the courtroom classes, we can't afford to dismiss how
neuroscience can be used and its potential in the criminal justice system. it holds promise in the legal realm. we can't absolve somebody from committing a crime but accepting our behavior can be influenced by brain injuries, disease or genetics or other abnormalities does have a place in our legal system and neuroscience can be used responsibly to support traditional medical diagnoses of mental health problems and psychiatric problems. i believe our justice system should hold people accountable for their actions but we can also embrace a humanistic side in which we try to understand the mind of the offender like the greeks had done. modern neuroscience allows us to evaluate people in ways we were never able to do before and fully and compassionately. i don't think this idea of using
neuroscience in the court is incompatible with holding people responsible for what they do and protecting society from people who can do harm. we can find the medium there some way. there are people who need to be treated for damaged brains. there is a call for criminal justice reform on both sides of the aisle, both political parties are moving toward certain reforms and there is a movement to reduce as incarceration. there is a movement to stop criminalizing mental illness. we need a system that offers understanding, compassion and consideration of the state of our brain and that is something we should think about. thank you for listening. [applause]
>> thank you. >> this is the time you get to ask me tough questions. i know this book raises a lot of questions and if you wait for the microphone you can ask your questions. >> my question is this attorney are referring to, cobb. during this mitigation, is he appearing just before the judge or is it a jury? the reason i ask this question, he is focused in a specific area of florida, he will periodically continue to appear before the same judge and if each time with every one of the clients he has he is appearing before these judges with binders saying there is something matter with their brain, beyond a certain point it is going to seem less credible.
that is my question. >> in this particular instance i write about in the book it was a plea agreement so it was not a jury trial, it was just before a judge, this was the mitigation part of his sentencing. it was not before gerri. jury trials are generally pretty rare. the thing i found interesting was the prosecutor didn't challenge cobb on the science and cobb generally believes in what he is pushing. it is out there for most people, but these people he is representing are not getting off scott free, they are held accountable for their treatment programs the judge approves. it is a small town and i would not be surprised after a while in the panhandle of florida that it may be strained after a wild but he backs it up and i was surprised to see the prosecution did not challenge it as much as i thought it would. some other questions?
>> talk a little bit about the irony of einstein and his defense and how it came back to haunt him when he went to the parole board unsuccessfully? >> boiler alert. [laughter] >> what happened was -- i will let you read the book but herbet weinstein did have to serve some time. he did not get first-degree homicide or the death penalty but what happened was he went before the parole board several times and kept being denied parole. what was suggested was if he is going to make the argument this cyst created problems with his impulse control and made him dangerous, why should we let him out on the street. he hurt his chances that way but
he was almost in his 80s, about 80 by the time he was actually paroled, probably fairly harmless. there is a double-edged sword about this. if you are going to claim your brain injury has rendered you violent and unable to control your impulses, could be a good reason for authorities to keep you locked up even longer so good question. >> thank you for coming and spending so much time and effort writing this great book. i was wondering if you were still planning to write more books in this series. >> i have been thinking about that. this is such a growing area there is much promise. lawyers are always thinking about their next book which is scary. i was trying to enjoy this time and thinking of something new. this does interest me because
this is the future. a lot of you may remember during the last administration president obama created the brain initiative. this is an issue of national importance, policy implications in the future not in terms of the criminal justice system but also medical science so i'm interested. i don't know exactly what my next book is going to be. >> i am curious about whether they are using defense of posttraumatic stress and whether all the ways in which they are using defense, brain defense has to do with this imaging. i work with a lot of people who have posttraumatic stress and people going to fight and flight mode, people dissociate, people can lose control of behaviors
based on traumatic intrusive memory and that kind of thing. i am wondering are they using -- are they doing this with posttraumatic stress and do they always use these imaging or by the behavioral? >> that is a good question. it is not always used. it is used to supplement a traditional medical diagnosis. i describe in the book ptsd is often mentioned and used as evidence in explaining particularly a chapter where i write about combat veterans who not only are coming back with ptsd but many coming back with severe dramatic brain injuries which they didn't realize they had. it was known as the invisible warble because you don't have -- you can be in the vicinity of an
explosion and have soldiers around where there ids were going off around them for days on end and their heads are going like this constantly so these invisible shears in their brain. to get back to your question ptsd is definitely recognized in court as a mitigating factor, not and excusing factor. this is where things get complicated. i don't think people are calling for this notion that a brain scan will completely get somebody off the hook. where the research is going and people are trying better to understand, how can we use it to help find a place in the criminal justice system where this person belongs whether it is treatment or incarceration, we don't know. i hope that answers your question. >> in your reviews, you
mentioned you dove into the hearing about gabby giffords. the you contrast something horrible happening to her where she has no violent the effects with other things presented in your book? >> i mentioned how i got into this subject which was by accident. when the former congresswoman gabby giffords survived an assassination attempt she was shot in the head and she survived. i was wondering as an interested citizen, how is she going to recover from that? how is that going to affect her behavior? there have been terrific books, terrific work about how people recover from traumatic brain injuries and horrible accidents and violence. one thing led to another.
i visited a place in chicago called the brain injury clubhouse. clubhouse. that sounds interesting. as a journalist i follow my knowledge so to speak. i go to places that are interesting. this will speak to your question so this is a place where people go to relearn things they unlearned through traumatic brain injuries, job skills, how to eat, things that don't happen in rehab -- people recover from traumatic brain injuries once they are out of the hospital, we have hospitals, still a lot of work to be done. so some of these people have personality change as well, some are getting in trouble with the law but not all of them. it is a mixture of nature and nurture. the culmination of all our life
experiences. for example football players are in a violent sport. if they have a bunch of concussions and do something violent does it because of the concussion? or does cte with soldiers, soldiers are in a violent profession but they don't all come back and commit violent crimes against people. people are having trouble, one thing leads to another, google, i wouldn't be where i am without google. i tracked down a place called the macarthur foundation research center, two things i find interesting, the jury was so all over the place and the brain is so puzzling. there were some beautiful books about patients with marriott and
inexplicable behavioral changes because of things going on in the brain. every one who gets a brain does not become a criminal. question in the back. >> it is used more in the criminal justice system. it opened the door for prosecutors to have a brain attack and say there is nothing there using as an aggravated circumstance. >> a prosecutor can turn that around. use the brain scan against a defendant. if a defense lawyer brings it in they are putting themselves at risk. the thing about prosecutors, as far as i know you can't order defendants to have a brain scan. there would be privacy issues with that. you might need a court order but it is unlikely because again we
have laws about what people can know about our medical history and that is a medical procedure. it is expensive, still very expensive and this is a small segment that is growing, small segment of the criminal justice system but it is growing. people were telling me about a movie, minority report. is anybody seen that movie? it is about predicting people -- i haven't seen it, violent behavior and using that against them. >> they were able to see a crime happen before it actually did and they would send the police and arrest them but the crime hadn't happened yet. >> i should see that definitely. good question.
some more questions? >> based on your comments about these procedures do you think as it starts to become more popular, initially we will see a perpetuation of the racial disassociation's in the criminal justice system like imprisonment? >> do i think the racial bias is part of the system will disappear? >> no, as in because it is so much harder to obtain, with that -- would that increase -- >> definitely. we have a justice system where often times you get the best defense money can buy, those disparities will grow. one of the prosecutors in the herbet weinstein case call this, quote, the rich man's defense. that will definitely create a
wider gap absolutely. public defenders offices which represent the majority of people accused of crimes in our cities and poor communities don't have any budget so they won't be able to do this. when they are able to do it, it is in death penalty cases so those, they do set aside money because stakes are the highest in death penalty cases but that is a good observation and a good point. anyone else? is what are your thoughts on youth sports? so much coming out, youth playing football, soccer, the effects of headbutting the ball, soccer players, what are your thoughts on youth contact sports, would you let your kid play high school football? >> he is here in the room right
now. no. i am fearful of it. i have seen what it and do. i didn't realize for the longest time, maybe some of you did, the helmet will prevent your head from getting cracked but it won't present the insides of your brain, the tiny connections from shearing. years and years of your head being hit back and forth the helmet won't save you. i don't like it. i don't like sports where people but heads. soccer i don't know if it is as dangerous. people do use the head gloves but hockey. i am not in favor of and i think we are only beginning to see what the long-term effects of these far. you see extreme cases of
football players, but reason which they discovered in high school and college having some long-term effects. you don't see them right away. they are invisible but they take their toll over time. i'm not comfortable with that. anyone else? what a crowd tonight. thank you so much for coming, i really appreciate it. [applause] >> i will be signing books so stick around, thank you. [inaudible conversations] >> booktv is on twitter and facebook and we want to hear from you.