When the facts and the law are against you, argue the genes? A pragmatic analysis of genotyping mitigation defenses for psychopathic defendants in death penalty cases.

Author:Walker, Brett

The penalty phase in a capital case represents the most challenging, yet important part of the trial. Once a trial progresses to this stage, the jury has already rendered a guilty verdict, and the defense attorney faces the uphill battle of humanizing the defendant in order to distance him or her from the heinous act. (1) Such a task proves especially difficult in cases involving a psychopathic defendant. This individual's emotionally detached, manipulative, and callous nature (2) severely inhibits the attorney s ability to connect with the defendant. Even more troubling, the combination of these characteristics exudes an air of remorselessness to the jury. In this situation, the attorney faces a difficult situation in which he or she is constitutionally (3) required to provide a humanizing composite picture of the defendant for the mitigation phase, but such a task seems nearly impossible when the client appears to be devoid of all characteristics we typically associate with human nature. Without some creative form of mitigation evidence, the jury will undoubtedly find this defendant more monster than human and impose the death penalty. (4)

In the past, such a situation may have ended with the defendant receiving the death penalty, (5) or, in some rare instances, the case getting reversed for a Sixth Amendment violation for ineffective assistance of counsel. (6) New advances in neuroscience technology over the last twenty years, however, have allowed criminal defense attorneys to identify a wide array of brain abnormalities that may assist in mitigation. (7) While brain scanning technology has received the majority of research and application in criminal cases in recent years, (8) relatively new to the courts is genetic research that has revealed a genetic predisposition for one's propensity for violence. (9) Specifically, independently conducted research studies in the field of behavioral genetics (10) suggest that the combination of genetic

predisposition and an abusive environment may significantly contribute to violent antisocial behavior, (11) including psychopathy. (12) While past scholarship and recent public debate (13) have focused upon the long-term normative implications of neuroscience and culpability, (14) this Note explores genotyping's practical application in current capital cases involving psychopathic defendants. (15) This Note avoids any normative discussions concerning morality and culpability in light of the new advances in neuroscience.16 Instead, it focuses more on the pragmatic considerations that capital defense attorneys routinely encounter while attempting to fulfill their constitutional obligations. (17) Even though this Note does not propose genotyping defenses as the ultimate panacea for mitigation difficulties, (18) the Note does advocate that genotyping evidence, combined with psychological evaluation, family history evidence, and expert psychological testimony, could provide a potentially powerful mitigation tool to capital defense attorneys when representing a psychopathic defendant. (19)

This Note proceeds in four parts. Part I defines psychopathy and discusses potential causes and diagnostic devices used to identify this disorder. Part II explores the basic structure of capital cases, common mitigation techniques, and potential deficiencies in mitigation evidence when applied to psychopathic defendants. Part III discusses how neuroimaging and genotyping may account for some of the deficiencies in mitigation. Part IV conducts an in-depth case analysis, examines the potential costs and benefits of using genotyping defenses, and provides recommendations for use in future trials.

  1. Understanding Psychopathy

    The following sections provide a brief explanation of psychopathic characteristics, the rate at which psychopathy occurs in general society, and some of the initial diagnostic tests used to categorize psychopaths.

    1. What Is Psychopathy and How Common Is It?

      Psychopathy is a mental disorder that results in "a lifelong persistent condition characterized, in males at least, by aggression beginning in early childhood, impulsivity, resistance to punishment, general lack of emotional attachment or concern for others, dishonesty and selfishness in social interactions." (20) The majority of research regarding psychopathy has focused on the male prison population, but other studies have suggested that psychopathy is not exclusively limited to this small segment of the population. (21) Psychopathy has also been correlated with a high risk of committing crimes, especially ones of a violent nature. (22) The combination of a genetic predisposition to commit violent crimes and a lack of emotional attachment has prompted many scholars and psychological experts to characterize many psychopaths as a danger to society. (23) Although psychopathic individuals account for only a small portion of society, research has suggested that "many of the most serious and persistent offender would be identified as psychopathic." (24) The high proportion of violent offenders with psychopathic tendencies suggests that criminal defendants who commit capital crimes may indeed be psychopaths. (25) Given the potential link between psychopathy and crime, the diagnosis of a potentially psychopathic defendant is important for the capital defense attorney. (26)

    2. The Potential Causes of Psychopathy and Methods to Identify the Disorder

      The precise cause of psychopathy is currently unknown, but researchers have identified several possible contributors such as genetics, brain malformations, and prior substance abuse. (27) Some researchers have used brain scanning technology to reveal that individuals exhibiting psychopathic tendencies have little to no activity in the paralimbic portion of the brain, which controls emotional responses and impulsivity. (28) Other researchers have suggested that childhood abuse or maltreatment contributes to the manifestation of psychopathy. (29) In genetics, some researchers have found a connection between certain genes and the manifestation of psychopathic tendencies. (30) Rather than pinpointing one precise cause, some commentators have argued that the combination of the aforementioned conditions and predispositions causes psychopathy. (31)

      Currently, one disagnostic tool exists that, after repeated testing, has been found to accurately and consistently diagnose individuals as psychopaths--the Hare Psychopathy Checklist ("PCL-R"). (32) This four factor checklist looks at a total of 20 "items" that encompass the majority of psychopathic behaviors. (33) Each of the 20 separate items are scored on a scale from zero to two, with "0" designating a lack of the trait and 2 signaling the complete "exhibition" of the trait. (34) The clinician who performs the interview and testing then combines the scores on each trait for a composite score out of a maximum of 40 (35) that tells whether the individual is a psychopath, with "[s]ubjects who receive a score of 30 or above ... classified as psychopathic." (36) While the PCL-R on its face appears simple and straightforward to apply, the complexity of analyzing the responses and the scoring process requires an experienced psychological clinician. (37)

      Some prosecutors have employed expert witnesses to testify to a defendant's future dangerousness according to the PCL-R in the sentencing process in non-capital trials, but few have used the PCL-R in capital cases. (38) This Note does not advocate for, nor does empirical history support, (39) criminal defense attorneys' use of the PCL-R alone as mitigation evidence at the penalty phase of cases. (40) An attorney could, however, find a qualified clinician to apply the PCL-R as a preliminary diagnostic tool to determine whether neuroimaging and genotyping techniques should be pursued. (41) The next part describes the basic structure of capital trials, traditional mitigation evidence, and how current mitigation techniques may not apply to psychopathic defendants.


    This part gives an overview of the basic structure of capital trials and the constitutional requirement of mitigation evidence. The later sections of this part explore the different forms of mitigation evidence and potential pitfalls of current mitigation evidence. In totality, these sections illuminate the areas in which genotyping technology may assist the capital defendant in presenting a more complete picture of the defendant at the mitigation phase.

    1. Structure of Capital Trials: Exploring Constitutional Mandates and State Laws

    1. Basic Structure of a Capital Trial

      Although the Supreme Court has developed nearly every facet of death penalty trials, (42) this section is only concerned with the basic structure of capital trials and how the Constitution has shaped their requirements. The capital trial progresses in two separate stages. (43) The first part of the trial, often called the guilt phase, is typical of a criminal case in which the prosecution must prove the elements of the crime beyond a reasonable doubt. (44) If the jury finds the defendant guilty of the charged capital crime, the trial then proceeds to the second phase, the penalty or sentencing stage. (45)

      During the penalty phase, the jury hears evidence from both the prosecution and defense about how the defendant's crime, personal disposition, prior criminal history, or psychological make-up constitutes either an aggravating or mitigating factor. (46) Aggravating factors are statutorily-based factors that the jury is required to find before imposing the death penalty. (47) Such factors include prior convictions, future dangerousness, lack of remorse, and many others that may support imposition of the death penalty. (48) On the other hand, mitigating factors are statutorily and non-statutorily defined factors that counsel against imposing the death penalty, and factors that the jury is constitutionally required to consider prior to sentencing...

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