Criminal Defendants Add New Concussion Tool to War Chest

By Paul D. Anderson, of Paul D. Anderson Consulting

(Editor’s Note: What follows is a repost from www.NFLconcussionlitigation.com)

As the science of concussions and their long-term effects advance, so too does the many ways in which a criminal defendant may seek to be set free.

Criminal defendants and their lawyers are looking to prior sport-related brain injuries as a causative factor for the illegal behavior.

According to the Observer-Reporter, former high school football player, Jordan Clemons, is facing the threat of the death penalty after being charged with brutally murdering his girlfriend.

Clemons’ lawyer recently filed a motion with the court citing his client’s extensive history of brain injuries, including multiple concussive and sub-concussive blows from football. His lawyer requested that a neurologist and psychologist evaluate his client.

The court, correctly, granted his request.

Clemons’ lawyer explained the purpose of his motion, “Diminished capacity is often the phrase used when a defendant’s state of mind does not meet the legal requirements for first-degree murder, which requires a premeditated, willful and deliberate killing with specific intent to kill. If capacity is diminished but a defendant is found to have committed the act, it falls to a lesser degree of murder.”

While not a complete defense, Clemons’ lawyer is seeking medical evidence to establish that his client lacked the necessary mental state to be found guilty for first-degree murder, which could potentially allow the jury to find Clemons guilty of a lesser charge such as second-degree murder. It also sets the stage for the introduction of mitigating factors if Clemons is found guilty of first-degree murder.

This could mean the difference between life in prison and death.

Lawyers have an ethical obligation to provide competent representation. This is an ever-evolving ethic, which is especially true in the rapidly advancing area of “neurolaw.”

A recent decision by the Alaska Court of Appeals highlights the necessity of investigating a client’s brain-injury history.

In Starr v. State, A-11250, 2014 WL 2834502 (Alaska Ct. App. June 18, 2014), a woman was convicted of second-degree murder after stabbing her boyfriend. She subsequently sought post-conviction relief, contending that her lawyer provided ineffective counsel by failing to investigate her concussion history. In her motion, the defendant included an affidavit from a neuropsychologist who opined that Starr’s “behavior surrounding the stabbing was consistent with her having suffered a concussion.” Id.

In reversing the trial court’s decision to deny the defendant’s application for post-conviction relief, the Court of Appeals admonished the trial court for violating the defendant’s due process rights when it “skipped Starr’s failure-to-investigate claim…[and] deprived Starr of the opportunity to establish that she has actually suffered a concussion and that the concussion had impacted her culpability….” Id.

This case breathes new life into the word “competency.” A lawyer clearly has an ethical obligation to investigate his or her client’s brain-injury history and pursue all possible defenses.

As evidenced by the recent cases like Clemons and others, lawyers are taking this ethic seriously.

Expect Titus Young’s lawyers to assert this defense as well.

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