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To Jon Schuppe
He says his brain is coded to kill. 1
The claim seemed like an extension to the judge. Prosecutors and some scientists. However, Yepez brought it before the Supreme Court of New Mexico, who agreed to think about it.
The court's ruling – months away – could accelerate a trend in the criminal justice system: the use of behavioral genetics and other neuroscience research, including the analysis of tumors and chemical imbalances, to explain why criminals violate the law. The rapidly evolving field is forcing officials to tackle new questions about how brain changes affect behavior – and how to persuade others to think about guilt and punishment.
This groundbreaking evidence collected through brain scans, psychological examinations, and genetic sequencing was used in a variety of ways to test whether a defendant was capable of deliberate murder if a defendant had the authority to stand trial whether an accused should die. Most of these attempts to use neuroscience as a defense have failed, researchers say. However, according to a study, about 20 percent of respondents have worked to gain new hearings or reversals.
This is worrisome for researchers who fear that some tactics are pushing the boundaries of science.
The law at the moment exists in this gray area, where everyone recognizes that both genetic and environmental factors can influence the guilt, "said Owen Jones, a professor of law at Vanderbilt University, the research network for law and neuroscience passes. "But how do you know when and how much?"
A Brain Research Test
Yepez's journey to this limit began with a DNA test for mailing.
In October 2012, he was first charged with murder – for bashing his friend's mother's girlfriend to death. He admitted that he had attacked the 75-year-old victim in a drunken quarrel. But he said he could not remember much and did not explain why he had reacted so violently. He seemed confused about what he had done, according to Ian Loyd, a public defender assigned to represent him.
Several months later, as they were preparing for the trial, Loyd attended a conference in Washington. One of the speakers was the forensic psychiatrist William Bernet. Bernet recounted the story of a defendant in Tennessee who was given the option of death penalty and convicted a jury in 2009 that he had earned a less severe sentence. The defendant had argued that a genetic deficiency – a variant of a gene called MAO-A that governs aggressive behavior in males – as well as abuse suffered as a child, was partly responsible for his crime.
Effects of the Mutation The criminal behavior was first documented in 1993 among members of a Dutch family, with a rigorous version found in a handful of families around the world. There are fewer extreme and less rare versions associated with an increased risk of criminal convictions – but only for men who have also been mistreated as children. Some researchers began calling MAO-A a "warrior gene," a term picked up by documentary filmmakers, talk show hosts, and consumer DNA test companies.
Loyd scribbled notes and thought of Yepez. "Maybe he has that gene too," Loyd recalls thoughtfully.
Loyd went online and found a commercial genetic testing company, FamilyTreeDNA, that charged $ 99 to see if anyone had the MAO-A deficiency. He had one of his investigators visit Yepez in Santa Fe Prison, where he wiped Yepez's cheek for cells. A few weeks later, the results were positive again.
"This is the defense I want to pursue," Loyd told Yepez.
In order to stay in court, Loyd called Bernet, an emeritus professor at the Medical Faculty of Vanderbilt University, who proposed to recruit a geneticist for a more comprehensive test. Geneticist David Lightfoot concluded that it was "beyond doubt" that Yepez had the MAO-A mutation, according to court records. A psychologist also conducted a series of tests with Yepez, who alleged that he was abused as a child, including beatings with a belt buckle, Loyd said.
A judge held a hearing in January 2015 to decide if these findings could be used as evidence. A defense lawyer said the MAO-A shortage and abuse claims "led Yepez to commit violent behavior." However, the prosecutors claimed that the science was not reliable and the connection with the murder was weak. The judge refused to allow this.
Four months later, a jury that did not know Yepez's genetic mutation convicted him of second-degree murder. The judge sentenced him to 22 years in prison.
Yepez appealed. A higher court said that the judge should have allowed the genetic evidence, but did not drop the verdict, as it would have made no difference, because the conviction of a second-degree killer did not have to prove that Yepez had "a definite intention" his victim kill victims. Yepez turned to the Supreme Court of New Mexico, which had agreed last fall to hear the case.
Yepez, who stays at Lea's penitentiary, could not be reached for an interview. But his lawyers said they hope the State Supreme Court would grant him a new lawsuit, this time using genetic evidence to declare the killing.
Helen Bennett, the attorney representing Yepez before the State Supreme Court, said the case will examine how neuroscience makes it difficult to determine whether someone wanted to commit a crime.
"These genetic markers and the way we learn how they work in the brain make the determination of intent much more nuanced," Bennett said.
A Growing Strategy
The growth of neuroscience findings – typically in the form of brain scans and psychological tests – goes back about three decades. It was mostly used to demand the most lenient for teenagers or against the death penalty for murderers. However, the strategy has expanded to cover a wider range of cases.
Several years ago, Nita Farahany, a professor of law and philosophy at Duke University, investigated the growing influence of neuroscience in the criminal justice system. It found more than 2,800 judicial decisions from 2005 to 2015, in which the defendants had cited in their arguments neuroscience. The crimes ranged from fraud and kidnapping to drugs and murder. About 20 percent of these defendants had a positive outcome, such as a new hearing to see if the evidence should be taken to court, or the annulment of an earlier verdict.
"Every year, more and more criminal culprits are using the neurosciences to substantiate their allegations of diminished responsibility for their criminal behavior and their moral guilt for their conviction," she wrote in a study published in the January issue The Annual Review of Criminology was published.
She cited this as an example A California man whose lawyers convinced a judge in 2008 that he was unable to stand trial for the murder of his mother by: He showed that he was diagnosed with developmental disorders, and in another case, in Arizona, a man accused of possession of a cargo of marijuana confessed and tried to resign, saying brain injury and severe migraine prevented him from understanding that he had renounced his right to silence, and the judge did not believe him. In a third case, a woman sentenced in 2011 for murdering her boyfriend for first-degree murder, her mental illness and a brain tumor played a role, and a Massachusetts court upheld and overturned the conviction.  Many of these claims exaggerate science, Farahany said – neuroscience may help to understand a person's inclinations and inclinations but can not say what they thought or felt at the time of the crime. Therefore, many scientists reject the use in the courtroom.
Behavior is determined by a variety of forces in the brain, with genes as a starting point, researchers say. The experiences or the environment of a person play a big role. And it is difficult to pinpoint a direct cause and effect for a particular disease.
Henry Greely, director of the Center for Law and Biosciences at Stanford Law School, who worked with Farahany in their latest study, said so if he did. As a judge in Yepez's case, he probably would not have any evidence allow for the MAO-A.
"It does not go as far as junk science, but it's close," he said.
However, he also added attempts by criminals in the use of neuroscience "will increase, even if lawmakers and courts try to stop them, because there are so many different ways to address them."
Many Scientists and researchers point out that prosecutors could also have a chance to resort to neuroscience evidence, arguing that a defendant is dangerous and should be severely punished.
Bennett, Yepez's lawyer, said it's important to push criminal justice into neuroscience and think differently about people le do bad things.
"As citizens, we have an obligation to listen to this science and make informed decisions before taking away the freedom of another person," she said.