Book Review: The Brain Defense: Murder in Manhattan and the Dawn of Neuroscience in America’s Courtr

Book review for The Champion June 2018

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The Brain Defense: Murder in Manhattan and the Dawn of Neuroscience in America’s Courtrooms

By Kevin Davis
Penguin Press (2017) 


On more than one occasion in the last 25 years I have asked a client, “Why did you do that?”

I want to understand what made the client think that particular act would make sense, be legal, and be somewhat likely to accomplish the client’s goal. “Why would you have believed the guy promoting that scheme?” “Why didn’t you ask a lawyer if that tax shelter was legal?” “Didn’t you think that that would get the FBI unduly interested in your practice?” These questions sometimes reveal that I have missed some abstruse point of investments, tax law, or professional practice. Sometimes the answer is as simple as “I was greedy,” “I was angry,” or “I was exhausted.”

But in a surprising number of instances, the answer comes back, “I really don’t know what I was thinking.”

I wish there was a test that could tell me just what my clients were thinking — and that I could then use that explanation to defend their actions or at least mitigate the severity of the punishment. After all, isn’t there a French proverb saying that “to understand all is to forgive all”?

Alas, according to Kevin Davis, neither the PET scan, the fMRI, the SPECT scan, the QEEG, or the SCR is going to give me that perfect insight.

In his book The Brain Defense, Davis looks at the remarkable increase in the use of neuroscience in criminal courts and tries to understand what role neuroscience should have in plea negotiations, trial defense, sentencing, and policy determination. He structures his book around the narrative of the defense of a man named Herbert Weinstein.

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Weinstein killed his wife during an argument in 1991 and threw her body out of a 12th-floor window. The difficulty for the prosecutor and Weinstein’s defense attorney Diarmuid White was that Weinstein had no criminal record, no history of violence, no apparent marital problems, and no financial motive for killing his wife.

The case was a “whydunit,” not a “whodunit.”

But Mr. Weinstein did have an arachnoid cyst the size of an orange pressing on his left temporal lobe — the area of the brain that some consider to be associated with “empathy, morality, and self-control.” Could this cyst have caused him to kill his wife? If it did, was that an argument for a decision not to charge him, an NGI plea, or a lesser penalty? Or was it really an argument that this man was dangerous to others precisely because he could not exercise reliable control of his decisions?

By weaving interviews with prosecutors, defense attorneys, doctors, judges, victims, and researchers into a series of narratives about various criminal acts and criminal trials, Davis explores the ways that neuroscience can inform or misinform the legal process, conceding that

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an individual brain scan proves nothing about a specific behavior at a specific time. While studies may suggest that impulsive behavior is localized in the prefrontal cortex, a color-coded picture showing dysfunction in that region cannot be tied directly to a criminal act.

(p. 135)

Nevertheless, Davis makes a compelling case that neuroscience has an important role when it is the defense attorney’s job to argue for mitigation:

What, exactly, was going on inside Mr. Weinstein’s brain and what caused him to murder his wife?

Neuroscience still can’t answer those questions. But decades of research do tell us that damaged brains … can alter behavior and impair the ability to make sound judgments and rational decisions. In the legal realm, that’s not enough for a successful criminal defense. Neuroscience alone cannot absolve someone of committing murder … or pinpoint the cause of a single act or demonstrate that someone is legally insane. But accepting that our behavior can be influenced by brain injuries, disease, genetics, and other abnormalities does have a place in our legal system, and neuroscience is an important adjunct that can be used responsibly to support it.

(pp. 288-89)

The promise of brain science to explain why an individual committed a crime is illusory — Neuroscience may give us insight into the stimuli, influences, and factors behind an act, but it can never tell us “why.”

The defense of the accused remains an art more than a science, a human endeavor rather than a technical one.


About the Reviewer

Al Brooke is a partner at The Bedell Firm in Jacksonville, Florida, where his practice focuses on federal white collar criminal defense.

The opinions expressed in reviews are those of the reviewers and do not necessarily reflect the opinion of NACDL.