A fair trial: when the Constitution requires attorneys to investigate their clients' brains.

• Author: Koenig, Ellen G.

ABSTRACT

The U.S. Constitution guarantees every criminal defendant the right to a fair trial. This fundamental right includes the right to a defense counsel who provides effective assistance. To be effective, attorneys must sometimes develop specific types of evidence in crafting the best defense. In recent years, the U.S. Supreme Court has found that defense attorneys did not provide effective assistance when they failed to consider neuroscience. But when must defense attorneys develop neuroscience in order to provide effective assistance? This question is difficult because the standard for determining effective assistance is still evolving. There are two leading approaches. First, in Strickland v. Washington, the Court adopted a two-prong "reasonableness" test, which, according to Justice O'Conner, may result in court decisions that fail to properly protect a criminal defendant's rights. Recently, courts have adopted a second approach based on guidelines promulgated by the American Bar Association.

This Note aims to answer this question. It first provides a background on the right to effective assistance of counsel and briefly describes neuroscience evidence, oppositions to and limitations on in its use, and its admissibility in court. Second, this Note attempts to give some guidance to attorneys by exploring the American Bar Association and U.S. Supreme Court standards. Third, it summarizes the results of a statistical analysis conducted by the author, which helps further define when courts require attorneys to develop neuroscience evidence. It concludes by arguing that attorneys need guidance to ensure they are not violating the Sixth Amendment. This Note expands on the American Bar Association's standard and suggests a framework attorneys may use to determine whether they should develop neuroscience evidence to ensure that their client has a fair trial.

TABLE OF CONTENTS Introduction I. The Sixth Amendment, Effective Assistance, and Neuroscience: A Preliminary Framework for Understanding Counsel's Obligations A. The Sixth Amendment's Right to (Effective) Assistance of Counsel 1. The U.S. Supreme Court's Delineated Framework: Strickland v. Washington a. Deficient Performance b. Actual Prejudice 2. The ABA's Guidelines: Expanding on Strickland to Further Explain Sixth Amendment Requirements B. What Is Neuroscience? 1. Neuroscience Evidence Is Currently Used in Criminal Courts 2. Opposition: What Is Special About Scientific Evidence? C. What Exactly Is "Neuroscience Evidence"? 1. Brain Scans a. Function: Reveals the Living Brain b. Structure: Anatomical Structure c. Limitations 2. Neuroscience Evaluations D. Admissibility of Neuroscience Evidence II. Delineated Standards: When the ABA and Strickland Require Counsel to Develop Neuroscience Evidence in Their Background Investigation A. The ABA Guidelines: Attorneys Must Develop Neuroscience Evidence in Some Cases B. When the Strickland Standard Requires Attorneys to Develop Neuroscience Evidence III. Case Analysis: Recent Court Decisions (Sometimes) Require Attorneys to Develop Neuroscience Evidence A. Case Law Analysis B. Results: Common Characteristics C. Results: Duty to Investigate Red Flags D. Red Flags 1. Head Injury 2. Low Intellectual Functioning 3. Serious Substance Abuse 4. Childhood Abuse IV. Proposed Framework: A "Reasonable Investigation" Should Include Investigating a Defendant's Mental Health Background, and, if Necessary, Developing Neuroscience Evidence A. Attorneys Need More Specific Instructions to Determine if Neuroscience Evidence is Required B. Proposed Framework to Satisfy Sixth Amendment Requirements 1. Initial Interview 2. Background Investigation 3. Follow-Up if Red Flags Are Detected Conclusion Appendix INTRODUCTION

David Perkins was brutally attacked by several men when he was twenty years old. (1) Although it is unclear what precipitated the attack, the impact on Mr. Perkins was permanent. (2) During the attack Mr. Perkins's attackers used a pronged rake to stab Mr. Perkin's head, which left a permanent hole in his skull and brain. (3) Mr. Perkins also had a car-accident related head injury two years earlier that left him in a coma for five days and caused him to lose six months of memory. (4) Taken together, these two head injuries left Mr. Perkins a man with a hole in his skull, who occasionally blacked out, experienced blurry vision, and suffered from short-term memory problems (5)--all physical symptoms that neurologists say may indicate brain damage.

Physically, these head injuries left Mr. Perkins permanently impaired, mentally, the effects haunted his daily life. (6) After these injuries, friends, family, and acquaintances noticed he was not the same (7)--he suffered from, as the highest court in Georgia described, "significant personality and cognitive changes." (8) He would drink heavily, stare blankly into space, and suffer fits of unprovoked violence that he failed to remember after. (9) For example, he once stabbed a couch with a knife and did not remember doing so afterwards. (10)

Unfortunately, even before these head injuries Mr. Perkins' life was already filled with emotional, physical, and sexual abuse. (11) Starting when he was three years old, his father beat and provided him with drugs and alcohol. (12) The degradation continued into adulthood where his father would beat and urinate on him. (13) Eventually, Mr. Perkins, who suffered from depression and was haunted by perpetual flashbacks from the physical and sexual abuse, tried to commit suicide by slitting his wrists with a razor blade. (14)

On Saturday, August 12, 1995, Mr. Perkins played guitar and drank beer in his apartment with a neighbor. (15) Around midnight, without provocation, (16) Mr. Perkins hit his neighbor with a guitar, brutally stabbed him with a knife eleven times, and crushed a liquor bottle over his head. (17) At 5:00 a.m.--with bloodstains covering his neighbor's body--he called his wife, who was staying at her mother's house, (18) and asked her to bring him over two cigarettes. (19) After his wife came to the apartment, which was covered in blood, she left to call the police. (20) Mr. Perkins then went to a different neighbor's door to ask for some cigarettes. (21) Ultimately, Mr. Perkins was found guilty of murder that was "outrageously and wantonly vile, horrible, and inhuman in that it involved depravity of mind." (22) During his trial, he "taunted the courtroom by making boxing gestures" at the jury. (23)

At trial, Mr. Perkin's behavior was, as his appointed trial counsel coined, "bizarre" to say the least because he did not want his counsel to speak with his family or to investigate his childhood background--he even fired one of his attorneys for asking a woman who visited him in jail about his mental health. (24) He was adamant that he was not "crazy" and refused to be examined by any mental health experts. (25) His defense team did make an unsuccessful motion to have him committed to a psychiatric hospital to be observed and made a motion to have him found incompetent to stand trial, which they later withdrew. (26)

Fifteen years later, the Georgia Supreme Court found that Mr. Perkins' Sixth Amendment right to effective assistance of counsel was violated when a jury sentenced him to death because his counsel did not investigate his brain injury. (27) In particular, these attorneys (1) limited their investigation of his background to just interviewing his ex-wife and mother and (2) did not review his medical records. (28) The vast majority of ineffective assistance of counsel claims are unsuccessful because of the strong presumption that attorneys effectively represent their clients. (29) But in Mr. Perkins's case, the court found he had a right to have neuroscience evidence--evidence of his brain injury--developed by defense counsel. (30) This Note aims to better explain why in this case and others like it, the Sixth Amendment quite simply requires counsel to develop neuroscience evidence regardless of the defendant's wishes. (31)

This Note is one of the first pieces of scholarly research exclusively dedicated to understanding when the Sixth Amendment requires attorneys to use neuroscience evidence. (32) Scholarship on this topic is long overdue as courts across the nation--from the U.S. Supreme Court down to local county courts--find the Sixth Amendment may require counsel to develop neuroscience evidence when preparing their cases. (33)

Neuroscience is highly technical and sometimes controversial. As a result, attorneys may not intuitively know that the Sixth Amendment requires them to develop this evidence. Yet in recent times, uncovering what is contained in the human brain has become not only a mission for doctors, academics, and scholars, but also a central mission of the federal government. (34) As neuroscience inevitably advances, the connection or lack thereof, between the human brain and crime may become better known. Consequently, neuroscience may find its way ever more into our nation's criminal courtrooms. (35)

The U.S. Supreme Court and the American Bar Association (ABA) have created some standards attorneys can follow to determine if their performance is in line with the Sixth Amendment's right to effective assistance of counsel. (36) Unfortunately for neuroscience evidence, these standards are vague and may be difficult to practically apply.

To search for a standard that can be practically applied, the author did a comprehensive case search to attempt to locate all criminal cases in the last twenty years where courts found attorneys violated the Sixth Amendment for not developing neuroscience evidence. (37) The author then analyzed the over nine hundred cases that resulted from the search. The final case sample consists of seventy-four lower court decisions and five U.S. Supreme Court decisions. (38) These cases serve both as a source of authority for this Note and as a resource attorneys can use to...