Subtle Brain Injury

A little over a month ago, I suggested that there could be a relationship between Ben Roethlisberger’s difficulties with the NFL (and the law) and brain injuries he has suffered. See http://www.tbilaw.com/blog/2010/03/football-and-brain-damage-the-cautionary-tale-of-steelers-quarterback-roethlisberger.html

On Sunday that idea was picked up by the Pittsburgh Tribune Review in an article by Carl Prine at http://www.pittsburghlive.com/x/pittsburghtrib/sports/steelers/s_678091.html That article seem to drew significant media attention to the issue and it then went viral becoming the subject of tweets and other social gossip pages. The banter on these sites wasn’t sympathetic. See for example Deadspin.com which titled its blog “Today In Bullshit Excuses: Ben Roethlisberger’s Anti-Social Behavior Caused By Concussions” http://deadspin.com/5524606/today-in-bullshit-excuses-ben-roethlisbergers-anti+social-behavior-caused-by-concussions Some of the comments were even nastier.

When I first raised this issue a month ago, a member of my staff asked me quite sincerely whether brain injury would excuse Roethlisberger’s conduct. I told her “that’s complicated.” I asked her did she really want to hear it all. She did, but at the time I wasn’t entirely sure how to explain why it was that the criminal law sought to punish people who were largely unable to control their actions.

Reading yesterday’s bashing of Roethlisberger, I decided it was appropriate for me to give a little better answer to that question. I am not a criminal lawyer and do not believe I am competent to represent someone charged with a crime, largely because I have not kept current in the field. When I last studied criminal law, we still had a liberal United States Supreme Court. Despite that, I have been specifically concerned about this particular issue for a long time. The issue never gets far from my mind because there is always someone from the brain injury community who needs help because someone they love or care about has been charged with a crime, for essentially behaviors that occur because of brain damage. Recognizing brain injury behaviors for me is as easy as reading English. The problem is that the law is written in a different language, primarily to ensure that “bad” people are punished and that society is protected from further “bad” acts.

The law has long recognized that someone who was truly “insane” couldn’t be criminally punished, but kept society safe by locking up in a psychiatric institution anyone judged insane. But society has been very slow to excuse conduct from individuals who aren’t so disturbed that we can protect society by forcefully institutionalizing them. Adding to the complexity of this issue is that the nuances of abnormal neurobehavior is so much more complex and subtle than pure psychiatric illness, that it just does not lend itself to the black and white thinking that the issue of whether Jeffrey Dahmer, or some other mass murderer was “insane.”

The law of “not guilty by reason of insanity” has really only two main elements:

1) Is the defendant sufficiently aware that he can understand the charges against him, and thus able to participate in his defense; and

2) Did the defendant understand that he was committing a crime. Jeffrey Dahmer was found guilty because he was aware in an eerie, calculating, computer like way.

What always troubled me about the Dahmer verdict is awareness of what he was doing did not mean that he truly understood it was wrong or that he could have controlled the urges to do it. His guiltless knowledge of what he had done is a true manifestation of insanity, regardless of the label psychiatrists or the criminal law puts on it. His guilty verdict worked for society. We were safe from further acts and he ultimately got punished for his crimes by the inmate population who ensured that he would kill no more. For more on the Dahmer case, read about the case on TruTV here: http://www.trutv.com/library/crime/serial_killers/notorious/dahmer/19.html

Ultimately, whether a person is excused of a criminal act under the insanity defense will rest upon whether the person had the requisite state of mind to commit such act, what the law calls “criminal intent.” In our next blog we will discuss in depth some of round peg into square hole problems of using an insanity defense for someone with a brain injury. But fundamentally, brain injured people are not insane. Insanity is a form of mental illness; brain injury is caused by organic changes to the way the mind functions. Psychiatrists are the arbiters of insanity, yet the specialty knows less about brain injury than the readers of this blog.

One could argue that this is a new problem, because people who used to die from brain injury are now being saved. While this problem has been around as long as there have been clubs, modern medical science is saving more severely injured people. (See for example our blogs on the Nightmare of War Time Brain Injury at http://www.tbilaw.com/blog/2008/06 read bottom up) Regardless, the law must now change to address this issue:

Does a just society punish a sane person for actions either they could not control or did not understand were wrong?

Our next blog will reference an excellent source I found in my research, an online article published by Inés Monguió, Ph.D. a neuropsychologist from California. That article can be found at http://www.uninet.edu/union99/congress/confs/hi/03Monguio.html I believe it should be required reading for any criminal lawyer and any lawyer representing someone with a brain injury in a personal injury case. It raises the issues in the right way, gives concrete guidance as to what the law is and challenges the advocate to do the right thing to protect both the client and society. This article’s treatment of frontal lobe deficits – that make it so difficult to know right from wrong or control actions – is one of the best treatments I have ever read on the subject. I will end today’s blog with a quote from the abstract to that article:

In most modern societies there are laws and guidelines that recognize mental conditions that reduce criminal responsibility. A century ago the limited knowledge in mental illness led to few mental conditions meriting forensic recognition, mainly florid psychosis or advanced dementia; both conditions easily recognized by lay people as affecting the social functioning of the defendant. Nowadays society in general is ready to accept that when certain areas of the brain are damaged certain functions are affected (left temporal area and language; right parietal lobe and spatial disorientation; traumatic brain injury and deficits in memory.) In spite of the recognition that in all its complexity the brain rules automatic and voluntary behaviors, it seems difficult to take the step to connect the clinical knowledge and its forensic application.

In part perhaps it is due to the loved tradition of “free will,” without which the foundations of social responsibly and even morality would tremble. Nevertheless, the more the neurosciences move forward, the less clear that the dichotomy becomes between voluntary and involuntary behavior. In this presentation brain syndromes will be presented and their possible effect on criminal behavior. Various cases will be presented of defendants evaluated by the author that presented with neuropsychological deficits congruent with organic diagnoses. Explicit connections between the neuropsychological deficits and the criminal behaviors, as well as with the pertinent forensic issues in various countries will be explored.