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Arizona Veterans and Traumatic Brain Injury and CTE

Frontline recently ran a story about football players who suffered brain damage from playing football. It is one the best documentaries I have ever seen (see it here "League of Denial").

Most people assume that football players who suffered multiple concussions were at high risk for brain damage and the evidence certainly supports that opinion. But the real insight of the Frontline story is that even players who never once suffered a concussion and who only played high school football were at serous risk for Chronic Traumatic Encephalitis (CTE). The important point here is CTE can be caused by the cumulative effect of thousands of sub-concussive hits. In other words, it is the normal hits of the game (about 1500 per season per player) that causes the brain damage and not necessarily the highlight reel hits.

CTE can only be diagnosed conclusively by an autopsy, and like any other encephalitis, ie, "Mad Cow" disease, it eats away at brain tissue like a microscopic, but very real Zombie. It turns normal, happy people into depressed, anti-social, and destructive suicidal maniacs. It destroys a person's very soul.

So what does that have to do with veterans? We now know that veterans suffer some of the very same brain injuries that football players suffer, traumatic brain injury or TBI, and that injury can have the very same effect on veterans as it does in football players. Again, this is not necessarily the result of a small number of spectacular hits, from an IED for example, but from multiple sub-concussive hits.

Dr. Bennett Omalu, the doctor who started the CTE and NFL investigation with his groundbreaking discovery of CTE in Mike Webster, also studied war veterans. You can see that study here "Chronic traumatic encephalopathy in an Iraqi war veteran with posttraumatic stress disorder who committed suicide."

The authors report this case as a sentinel case of CTE in an Iraqi war veteran diagnosed with PTSD to possibly stimulate new lines of thought and research in the possible pathoetiology and pathogenesis of PTSD in military veterans as part of the CTE spectrum of diseases, and as chronic sequelae and outcomes of repetitive traumatic brain injuries.

A lot of people, most of them non-veterans and many prosecutors and police officers, think veterans facing prosecution are just using post-traumatic stress syndrome (PTSD) as an excuse. Part of the problem is that PTSD cannot necessarily be proven with a test like a MRI or blood test. I now wonder how many cases of PTSD induced behavior is really the result of CTE?

For more information about Arizona veterans and the criminal justice system, see "Why we need Veteran's Court for Maricopa County and Pima County" and "Veteran's Court in Phoenix".

For a very article about this issue, see "The Case Against Brain Scans As Evidence In Court" by Jon Hamilton.

What is the Battered Women Syndrome Defense in Arizona?

As I have previously, Arizona does not allow evidence of diminished capacity and does not allow a defendant to argue extreme emotional disturbance. That is the rule from the Arizona Supreme Court case of State v. Mott. What this rule broadly means is that a defendant cannot present expert testimony as to the defendant's state of mind. Having made that point though, the Mott rule is not exactly airtight. That is because of two exceptions.

The first is that a defendant can still introduce "observational" evidence at trial, even if that evidence is from a mental health expert. In other words, a psychologist or psychiatrist can testify evidence that he observed, even if they are related to the defendant's state of mind.

Second, if the defense claims self defense, and in particular self defense as a victim of domestic violence under ARS 13-415, then the reasonable person standard is from the perspective of someone who has been the victim of domestic violence.

If there have been past acts of domestic violence as defined in section 13-3601, subsection A against the defendant by the victim, the state of mind of a reasonable person under sections 13-404, 13-405 and 13-406 shall be determined from the perspective of a reasonable person who has been a victim of those past acts of domestic violence.

This is the battered women syndrome defense. In the Mott decision, the court stated in footnote 3 that nothing in the decision applied in self defense cases.

Evidence of battered-woman syndrome is ordinarily offered in self-defense cases. It has been used to aid the jury in assessing the reasonableness of the defendant's apprehension and the imminency of death or serious bodily injury. Ex Parte Haney, 603 So.2d 412, 414 (Ala.1992); State v. Koss, 49 Ohio St.3d 213, 551 N.E.2d 970, 973 (Oh.1990); Bechtel v. State, 840 P.2d 1, 9 (Okla.Crim.App.1992). In this case, however, defendant did not offer the evidence for these purposes and we need not address the admissibility of battered-woman syndrome evidence in self-defense cases.

What this means is that while a defendant cannot use an expert witness to prove generally the defendant did not have intent to commit a specific crime, that expert can be used, among other things, to prove expert observations and to establish the reasonable person standard as a victim of domestic violence for a claim of self defense.

So bottom line, what does this mean? Are these two exceptions so broad as to have made the Mott rule irrelevant, or are they in fact the exceptions that prove the rule? All I can tell you from my own experience is... it depends. Courts will typically resolve this issue pretrial on a case by case basis.

Should Jodi Arias have tried Diminished Capacity Defense?

After every trial, regardless of the outcome, one side will always analyse the results and ask themselves if another strategy or approach would have been better. In the context of the Jodi Arias trial, I have heard a few commentators mention that she would have been off not arguing self defense, but had instead tried something different like diminished capacity. For trial watchers who also happen to watch a lot of TV procedural shows, they will know diminished capacity is the favorite defense strategy of fictional TV criminal defense lawyers. So what exactly is the defense of "diminished capacity"?

Briefly, it is "evidence that the defendant suffered from a mental disease or defect that would prove that the defendant did not have a state of mind that is an element of the defense" (Model Penal Code 4.02(1)). The important point here is that diminished capacity is the same thing as the so called "insanity defense", or in Arizona "not guilty except insane", but is a lesser version of it. Diminished capacity is a "mental illness that falls short of that required to invoke the defense of irresponsibility, but that may be put in evidence as tending to show that the defendant lacked the specific mens rea required for commission of offense charged." In layman's terms, diminished capacity means the defendant knew right from wrong, and thus the insanity defense would not apply, but the defendant did not have the required intent to commit the crime because of a mental disease.

In the case of Jodi Arias, if her defense team had argued diminished capacity instead of self-defense, the argument would have been she was not criminally insane when she killed Travis Alexander, but instead, she did not have the specific intent to kill Mr. Alexander as a result of mental illness, and thus, at the very least was not guilty of first degree murder.

In contrast to diminished capacity, Arizona uses the M'Naghten test for the "guilty except insane" defense:

A person is not responsible for criminal conduct by reason of insanity if at the time of such conduct the person was suffering from such a mental disease or defect as not to know the nature and quality of the act or, if such person did know, that such person did not know that what he was doing was wrong. (State v. Ramos)

While guilty except insane wouldn't work, diminished capacity seems like a plausible argument, at least according to Monday morning quarterbacks criticizing her defense team. So why wasn't that the defense she actually used in her case? The answer is very simple: because neither she, nor any defendant for that matter in Arizona state court, is allowed to use it. In State v. Mott, the Arizona Supreme Court held the defendant was not entitled to present evidence of "battered women syndrome" or diminished capacity because the Arizona legislature had did not include it as a justification to criminal conduct. And thus, even if Ms. Arias would have had a better result with that defense than self-defense, it was not available at all.

Is a Pillow a "Deadly Weapon" or "Dangerous Instrument"? Why Yes it is...

Some crimes are alleged as "dangerous" because a deadly weapon was used by the defendant. For example, if a defendant uses a deadly weapon while committing misdemeanor assault, the charge will be aggravated or felony assault and as "dangerous". That is true even if the victim was not hurt at all. If someone disturbs the peace of another person while displaying a deadly weapon, that is a felony even if no one was hurt.

So what exactly is a deadly weapon? Under ARS 13-105(15), a deadly weapon "means anything designed for lethal use, including a firearm." That is obviously circular, but ARS 13-105(12) defines "Dangerous instrument" is more helpful:

means anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury.

The important point here is that a deadly weapon or dangerous instrument can be anything under the sun, and is not limited to obviously deadly weapons like guns or knives. For example, I go to a bar and have a beer and go home. In that instance, the beer bottle is nothing more than a bottle. But let's say I get into an argument and I grab the bottle by the neck threatening to hit someone. In that instance, the beer bottle would be a deadly weapon and I would be charged with aggravated assault. I would venture to guess the instrument most charged as dangerous would be a car. I once had a case where the county attorney claimed the sidewalk was a dangerous weapon because a defendant was trying to slam a boy against it causing injury.

I bring this up in the context of the Jodi Arias trial. The prosecutor has alleged Ms. Arias stole her grandfather's handgun to kill Mr. Travis Alexander, which, in the eyes of the government, proves the crime was premeditated and therefore murder one. There is only one problem with that proposition, Mr. Alexander did not die from a gun shot, but from multiple stab wounds. He was shot after he was already dead or nearly dead. So how does the fact Ms. Arias stole a gun to kill Mr. Alexander, assuming that point is sufficiently proven to the jury, prove premeditation?

It doesn't. Imagine the following scenario: the government alleges Ms. Arias stole a pillow from her grandfather with the intention of smothering Mr. Alexander in his sleep. A pillow, as defined by ARS 13-105, is a deadly weapon under that particular scenario. Also imagine the evidence proves Mr. Alexander was only smothered after he was already dead. Would anyone, under those set of facts, believe beyond a reasonable doubt stealing the pillow and smothering Mr. Alexander after his death proved Ms. Arias intended to kill Mr. Alexander with premeditation? Of course not, but the broader point is that this "pillow" scenario is legally absolutely the same as the "she stole the gun to kill him" theory as the government has presented.

Logan McQueary, Baby Gabriel's dad, to testify against Elizabeth Johnson

September 27, 2012


Logan McQuery, the father of missing and presumed dead Baby Gabriel, is set to testify against the mother Elizabeth Johnson. Why will he say and why does the state need him? See my interview with ABC 15 to find out what I think.

Why Can't Shooting Victims Sue Gun Makers?

I will be hosting a radio show on this topic Wednesday Dec 19 at Noon Arizona time. You can see it here "Newtown School Shooting: What can be done?".

It's a simple enough question right? If gun makers are making a killing, literally, by selling guns and ammunition to the public at large, and that profit is to the detriment of society at large, why can't those victims sue gun makers?

The line of reasoning is similar to what happens when a big, bad company makes a ton of money by polluting the environment and expects everyone else to clean up the mess. In the parlance of law and economics, it is called an externality and the "tragedy of the commons".

The reason consumers can't sue a gun maker for the injury and cost it causes to victims is because back in 2005, democrats and republicans, under NRA pressure, passed the Protection of Lawful Commerce in Arms Act or 15 U.S.C. ยงยง 7901-7903. That law specifically bans all lawsuits in state and federal court.

Interestingly enough, Mexico wants to sue American gun makers and distributors because most of the guns used in the narco-trafficking war in Mexico come from the United States. I have always thought it ironic that the United States put so much time, money, and energy in civilizing Iraq, when Mexico, a nation that is orders of magnitude more important to the United States, is falling into anarchy. And, I think, one of the simple ways we could help Mexico is by letting them get justice for the damage that American gun makers and distributors have caused their nation (see "Mexico wants to sue U.S. gun makers").

President Felipe Calderon expressed his frustration to CBS News correspondent Peter Greenberg: "We seized more than 90,000 weapons...I am talking like 50,000 assault weapons, AR-15 machine guns, more than 8,000 grenades and almost 10 million bullets. Amazing figures and according to all those cases, the ones we are able to track, most of these are American weapons."
According to sources, investigators will obtain makes and serial numbers of guns seized by Mexican authorities and trace them to their U.S. distributors and manufacturers.

I think a reference is appropriate to the Ford Motor Company and their reaction to when they figured out it would be cheaper to pay for wrongful death lawsuits than to redesign and fix their deadly Pinto fuel tanks (see "Pinto Madness A Mother Jones Classic: For seven years the Ford Motor Company sold cars in which it knew hundreds of people would needlessly burn to death"). In other words, it was cheaper to kill and pay rather than to save lives. But at least Ford considered the possibility of lawsuits in changing their car design. As it stands now, gun makers have no such incentive. 

Ronald Chante should still be alive and kicking

It is said about America that, unlike other civilized and Western nations, that we put too many people in prison and jail who should be in a mental institution. Whether that is true across the board remains to be proven one way or the other, but in Arizona last Sunday, there was a clear example of that fact.

Police said Ronald Chante stole a Phoenix police utility truck and crashed into police officers during the chase. Records show he was in trouble with the law dating back 15 years. People who knew him said he had a drug problem, but he was obviously mentally ill and needed help...

"You get a person who is out there on their own who doesn't know they need help and they fall through the cracks and this is a perfect example," said Defense Attorney Vladimir Gagic. 

("AZ man shot by police 'misunderstood'?" by ABC 15 Brian Webb and Navideh Forghani)

The reason I mention this case is that because there is no reason Ronald Chante should be dead. Instead of lying dead on a cold morgue floor, he should be alive and kicking in a mental ward, or at least still in custody. I sincerely believe if Mr. Chante had been taken into custody in any other developed nation, for example, Japan, Canada, Italy, etc... he would still be alive today. 

In fact, even if it had been a less developed nation, he would still be alive. Sadly, at least in Maricopa County, one does not get mental health treatment unless one asks for it directly or a family or friend asks for it. So when someone like Mr. Chante goes to jail and no one bothers to notice the obvious, he ends up dying and putting the lives of ordinary citizens at risk at the same time. 

I know some people seem to think that because he wanted to commit "suicide by cop" that absolves the county jail and Maricopa County Sheriff of all moral responsibility. It does not. The fact he wanted to commit suicide, regardless of the particular method, is the sign of his mental illness. And if have a county jail system that cannot cope with the obvious problems that Mr. Chante displayed, then what is the point of even having what we now call county government? If our society can't stop the obvious and clear danger that Mr. Chante was to himself and others, what is the point of having a society at all?