The new Twinkie defence: abuse and misuse of fMRI's and science, and using the label psychopath as an excuse - blog by Gurdur

 




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The new Twinkie defence: abuse and misuse of fMRI's and science, and using the label psychopath as an excuse
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Posted 06-Jul-2010 at 04:27 PM (16:27) by Gurdur
Updated 06-Aug-2010 at 02:09 PM (14:09) by Gurdur

In 1978, Wikipedia link for Dan White Dan White murdered by shooting George Moscone, the then mayor of San Francisco, and Harvey Milk. At his trial, psychiatrist Martin Blinder testified that in his opinion Dan White was of Wikipedia link for diminished capacity diminished capacity owing to depression, or in other words Dan White's mental functions were allegedly "diminished" or impaired. Blinder argued that Dan White's change of diet to snack foods and drinks high in sugar was allegedly evidence of White's depression, and thus alleged evidence of his alleged diminished capacity, and alleged lack of premeditation of his crimes. Parenthetically during his testimony, Blinder suggested the excessive sugar could have caused a chemical imbalance in White's brain. George Solomon, another psychiatrist testifying on White's behalf, claimed Dan White had "exploded" and was "sort of on automatic pilot" when he murdered Moscone and Milk. The testimony was somewhat misreported at the time as claims that White's sugar intake had caused his actions, rather than just being claimed evidence of his alleged diminished capacity, and went down in history as the infamous Wikipedia link for Twinkie Defence Twinkie Defence.

Fine, there was misreporting and a misconception about what the defence was, but nonetheless it was a trash defence; depression alone does not cause people to murder, and that depression by itself is no indicator of diminished capacity in murder, there was no genuine indication that Dan White acted without premeditation, contrary to what the defence claimed (in fact, there was a good deal of actual evidence to show Dan White did indeed act with premeditation), and people do not simply "explode" like that at all. In 1998, Frank Falzon, the detective who first handled Dan White after the killings, said that he met White in 1984, and:

Quote:
' ...that at this meeting White had confessed that he had the intention to kill not only Moscone and Milk, but another supervisor, Carol Ruth Silver, and ... Willie Lewis Brown, Jr. also. ..... Falzon indicated that he believed White, stating, "I felt like I had been hit by a sledge-hammer ... I found out it was a premeditated murder" ...'
[Weiss, Mike (September 17, 1998). "Dan White wanted to kill Willie Brown on day he murdered San Francisco mayor, Harvey Milk". San Jose Mercury News.]

The Twinkie defence was trash, from beginning to end, and the press and public misinterpretation of it is irrelevant to the fact that it was trash. As Barbara Kirwin, a renowned forensic psychologist who has testified at many trials herself, states in her book, The Mad, the Bad, and the Innocent: The Criminal Mind on Trial:

Quote:
... psychopathic criminals - who, though basically lacking a conscience, are able to conform their behaviour to the law but choose not to - can get off too easily in today's courts. ....
Barbara Kirwin discusses in her book the cases of "designer defences", where defence lawyers come up with inventive new ways of trying to excuse their clients' actions, as in the Twinkie case where alleged depression was claimed as "diminished capacity", and eating sugary snacks as evidence of depression. It is very important to distinguish between psychopaths and those suffering from real compulsion or automatism owing to mental illnesses; to repeat Kirwin's point, a psychopath is able to behave in accordance with the law but chooses not to, or in other words, a psychopath does not suffer from diminished incapacity. But now the Twinkie defence is being resurrected in the abuse of the term "psychopath" and in the form of misuse of fMRI studies in testimony.

An fMRI is a Wikipedia link for Functional magnetic resonance imaging Functional magnetic resonance imaging technique of brain imaging that measures blood flow and oxygen in parts of the brain. There are many complex difficulties in interpreting fMRI scan data, as for example when researchers ran fMRI scans on a dead salmon fish, and discovered false positives.

In 1985, Wikipedia link for Brian Dugan Brian Dugan, who was already in prison for the murder of a 27-year-old woman and the rape and murder of a 7-year-old girl, confessed to the abduction, rape and murder of Jeanine Nicarico in 1983. In 2005, Dugan was indicted for the Nicarico murder, and in 2009, he pleaded guilty. However, Brian Dugan’s lawyer, Steve Greenberg, tried using the testimony of Dr. Kent Kiehl who had performed fMRI scans on Dugan. Dugan and Greenberg wished to claim that since Dugan was (allegedly) a psychopath, and since allegedly the fMRI scans proved that, then Dugan suffered from diminished capacity, and should not be sentenced to death.

Yet very obviously:
  • fMRI scans carried out in 2009 say nothing about intent in 1983;
    .
  • psychopathy is not a mental illness of compulsion; a psychopath is able to behave in accordance with the law but chooses not to, or in other words, a psychopath does not suffer from diminished incapacity;
    .
  • the status of research into mental states and intent using fMRI technology is still very young and under severe doubt and criticism.

    In a video (from PBS Wired News, 2007) at the bottom of this blog post, Daniel Langleben, a pioneer of the fMRI technique, questions its use in courts and its reliability in lie detection. as have others.
    .
  • Brian Dugan's actions show every sign of being able to plan and to carry out plans, of being able to plan to abduct, rape and murder, and being able to plan to avoid detection; that in itself is a very strong indicator that Brian Dugan does not possess diminished capacity in any way whatsoever.

This was the first time in criminal court proceedings that fMRI scans have been used as alleged evidence of a person's intent; however, fMRI scans were tentatively attempted by David Zevin, a lawyer in Brooklyn, as a kind of glorified lie detector in a court case on a sexual harrassment suit.

Moreover, two companies in the USA, Cephos (Massachusetts) and No Lie MRI (San Diego, California), are both marketing fMRI's as glorified lie detectors, even though the evidence for such alleged lie-detection is very tentative and dubious as yet. Let alone that even the established polygraph lie-detectors, relying on skin-conductance/-capacitance, pulse and so on, still have big problems in their methodology and reliablity, as David Thoreson Lykken detailed in his book, A Tremor In The Blood: The Uses And Abuses Of The Lie Detector. So the market is rushing in to offer what amounts to no more as yet than trying to baffle people with what is claimed to be science -- and when it comes to psychopathy, claims are being made (as for diminished mental capacity) that are simply not true.

There are excellent reasons why intent, the question of diminished capacity, free will and compulsion all come up in appropriate court cases; but the use of faux science in designer defences amounts to abuse of science and abuse of justice and law.


Raymond Tallis at The New Humanist has blogged about the abuse of neuroscience in similar ways, and brought up the problem of scientism inherent in the abuse of such procedures as the fMRI in court cases and so on.


Daniel Langleben, a pioneer of the fMRI technique, questions its use in courts and its reliability in lie detection (from PBS Wired News, 2007):







This blog case study revolving around one single paper is part of a series of blog posts of mine on the nature/nurture, mind/body areas of issues.

Also see this for general information on this area if this is all very new to you.
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  1. Old Comment
    One question: That definition of psychopath is rather broad, isn't it? That means civil disobedience is psychopathic (since participants can behave according to the law, but choose not to), 17 year olds that drink alcohol are psycopaths and so on. How the hell does that one work?

    ETA: Ah, the author defines it with a lack of conscience. Ok.
    Posted 07-Jul-2010 at 03:39 PM (15:39) by Fizzle Fizzle is offline
  2. Old Comment
    Gurdur's Avatar
    Quote:
    Originally Posted by Fizzle View Comment
    One question: That definition of psychopath is rather broad, isn't it? That means civil disobedience is psychopathic (since participants can behave according to the law, but choose not to), 17 year olds that drink alcohol are psycopaths and so on. How the hell does that one work?
    ETA: Ah, the author defines it with a lack of conscience. Ok.
    I will be tackling psychopathy in full in a future blog post soon.
    Posted 07-Jul-2010 at 04:23 PM (16:23) by Gurdur Gurdur is offline
  3. Old Comment
    lifelinking's Avatar
    Interesting stuff Gurdur
    Posted 18-Jul-2010 at 08:48 PM (20:48) by lifelinking lifelinking is offline
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06-Jul-2010, 05:09 PM (17:09)
The new Twinkie defence: abuse and misuse of fMRI's and science, and using the label psychopath as an excuse - blog by Gurdur - Blogs on the Heathen Hub heathen-hub.com/blog.php?b=444

NeuroLaw Blog » Can an fMRI tell when I’m lying?

10-Oct-2010, 01:59 AM (01:59)
ll types of MRI and PET scans, is primarily used to understand brain anatomy and function.” A video shown on another blog explains the reservations scientists have regarding fMRI technology (Gurdur):

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