Post on 30-Dec-2015
description
John Jerry GlasDeutsch, Kerrigan & Stiles, L.L.P.
New Orleans, Louisiana
Irresistible Impulses & Disinhibition:Siren Songs In Civil Cases
Traumatic Brain Injuries
CENTERS FOR DISEASE CONTROL AND PREVENTION http://www.cdc.gov/traumaticbraininjury/statistics.html
Attack Methodology
“The line between an irresistible impulse and an impulse not resisted is probably no sharper than between twilight and dusk.”
U.S. v. Lyons, 731 F.2d 243, 248 (C.A. 5 (La) 1984), quoting American Psychiatric Association Statement On The Insanity Defense, 11 (1982) [APA Statement.
Effect Of Injury
Unable To Resist
Harder To Resist
(involuntary conduct)
(voluntary conduct)
Effect Of Injury ?
Need For Supervision
“... I can tell you that [plaintiff] is going to break those laws that will put him in some kind of facility within a very short time if he lived independently by himself. . .
I don’t think it’s his cognitive skills that are the problem. I don’t think it’s his memory. . . I think it’s his impulsivity and his lack of self-control and his judgment that are damning him.”
Deposition of Beth Salcedo, MA, SLP, CCC, 6/10/09, p. 132, line 18 et seq
Limit Functional Regions Of Lobes
Involved
Primary Motor
Premotor Area
Frontal Eye Fields
Dorsolateral Prefrontal Cortex
(& Others)
Frontal Subcortical Circuits
Motor
Oculomotor
Dorsolateral Prefrontal
Anterior Cingulated Orbitofrontal
Executive Cognitive Function
Behavioral/Emotional Function
Activation Regulation
Meta-Cognitive Processes
Frontal Lobe Functions
Memory
Language
Initiation
Judgment
Impulse Control
Social & Sexual Behavior
Motor Function
Problem Solving
Frontal Lobe Functions
Limit Area & Severity of Brain Injury
Establish Retained Cognitive Skills
Identify Mechanism & Underlying Disorder
Strategy
Mania
Bipolar Disorder
Frontal Lobe Dementia
Impulse Control Disorder
Disinhibition Syndrome
Organic Personality Disorder
Post-Traumatic Stress Disorder
Disorders
Irresistible Impulses
“There may be an unseen ligament pressing on the mind, drawing it to consequences which it sees, but cannot avoid, and placing it under a coercion, which, while its results are clearly perceived, is incapable of resistance.”
Commonwealth v. Mosler, 6 Pa. L.J. 90, 4 Pa. 264 (Pa. 1846)(per curiam)
Insanity Defense
M’Naghten TestModel Penal Code
17
14
Moral Incapacity 10
M’Naghten + VolitionProduct Mental Illness
3
1
Cognitive Incapacity 1
Clark v. Arizona, 548 U.S. 735, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006)
Model Penal Code Test
American Law Institute Model Penal Code Test (1964)
"a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."
Limit Area & Severity of Brain Injury
Establish Retained Cognitive Skills
Identify Mechanism & Underlying Disorder
Establish Cognition
Agenda
What is plaintiff’s I.Q.?
Was plaintiff under influence of drugs, ETOH, meds?
Does plaintiff recall his behavior?
Establish Cognition
Wild Beast Test
•
Children
Wild Beasts
“a mad man . . . must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than a brute, or a wild beast, such a one is never the object of punishment."
Judge Tracy, Rex v. Arnold, 1724
What is plaintiff’s I.Q.?
Was plaintiff under influence of drugs, ETOH, meds?
Does plaintiff recall his behavior?
Did plaintiff understand physical act & consequences?
Establish Cognition
What is plaintiff’s I.Q.?
Was plaintiff under influence of drugs, ETOH, meds?
Does plaintiff recall his behavior?
Did plaintiff understand physical act & consequences?
Could plaintiff distinguish between right & wrong?
Establish Cognition
Right & Wrong Test
•
Judge, Bellingham Case1812
“had sufficient understanding to distinguish good from evil, right from wrong.”
What is plaintiff’s I.Q.?
Was plaintiff under influence of drugs, ETOH, meds?
Does plaintiff recall his behavior?
Did plaintiff understand physical act & consequences?
Could plaintiff distinguish between right & wrong?
Did plaintiff know “nature and quality” of the act?
Establish Cognition
What is plaintiff’s I.Q.?
Was plaintiff under influence of drugs, ETOH, meds?
Does plaintiff recall his behavior?
Did plaintiff understand physical act & consequences?
Could plaintiff distinguish between right & wrong?
Did plaintiff know “nature and quality” of the act?
Did plaintiff know behavior was illegal?
Establish Cognition
What is plaintiff’s I.Q.?
Was plaintiff under influence of drugs, ETOH, meds?
Does plaintiff recall his behavior?
Did plaintiff understand physical act & consequences?
Could plaintiff distinguish between right & wrong?
Did plaintiff know “nature and quality” of the act?
Did plaintiff know behavior was illegal?
Did plaintiff believe behavior was immoral?
Establish Cognition
What is plaintiff’s I.Q.?
Was plaintiff under influence of drugs, ETOH, meds?
Does plaintiff recall his behavior?
Did plaintiff understand physical act & consequences?
Could plaintiff distinguish between right & wrong?
Did plaintiff know “nature and quality” of the act?
Did plaintiff know behavior was illegal?
Did plaintiff believe behavior was immoral?
Did plaintiff feel guilty?
Establish Cognition
What is plaintiff’s I.Q.?
Was plaintiff under influence of drugs, ETOH, meds?
Does plaintiff recall his behavior?
Did plaintiff understand physical act & consequences?
Could plaintiff distinguish between right & wrong?
Did plaintiff know “nature and quality” of the act?
Did plaintiff know behavior was illegal?
Did plaintiff believe behavior was immoral?
Did plaintiff feel guilty?
Did plaintiff plead guilty?
Establish Cognition
Limit Area & Severity of Brain Injury
Establish Retained Cognitive Skills
Identify Mechanism & Underlying Disorder
Establish Cognition
Attack Volition
Agenda
Did plaintiff physically lose control over extremities?
Did plaintiff plan or organize before (premeditated)?
Attack Volition
Did plaintiff physically lose control over extremities?
Did plaintiff plan or organize before (premeditated)?
Was behavior self-endangering or self-defeating?
Attack Volition
Did plaintiff physically lose control over extremities?
Did plaintiff plan or organize before (premeditated)?
Was behavior self-endangering or self-defeating?
Would plaintiff have waited if an officer was there?
Attack Volition
Wife At Elbow Test
Dr. Thompson. . . in your opinion, if [the doctor’s wife] had walked into the garage. . . before [the doctor] had started to make preparations to commit suicide, do you think [the doctor] would have waited for her to leave before committing suicide?
I think he’d likely would have waited for her to leave.
And why is that, Doctor?
Because I think he would not have wanted to commit suicide in front of her.
Q.
Q.
Deposition of Dr. Thompson, p. 28, line 19 et seq.
A.
A.
Did plaintiff physically lose control over extremities?
Did plaintiff plan or organize before (premeditated)?
Was behavior self-endangering or self-defeating?
Would plaintiff have waited if an officer was there?
Did plaintiff lose all ability to control behavior?
Attack Volition
Ability To Control
People say that he does demonstrate the ability at times to remove himself from a situation that could escalate, calm down, and then return. . .
I have observed that. . .
That’s a social skill or a social pragmatic that he does possess?
He posses it. He doesn’t always use it, but he possesses it.
Q.
Deposition of Beth Salcedo, SLP-CCC, 6/10/09, p. 167, lines 10-19
A.
Q.
A.
Did plaintiff physically lose control over extremities?
Did plaintiff plan or organize before (premeditated)?
Was behavior self-endangering or self-defeating?
Would plaintiff have waited if officer there?
Did plaintiff lose all ability to control behavior?
How much disinhibition is required for the behavior?
Attack Volition
Did plaintiff physically lose control over extremities?
Did plaintiff plan or organize before (premeditated)?
Was behavior self-endangering or self-defeating?
Would plaintiff have waited if officer there?
Did plaintiff lose all ability to control behavior?
How much disinhibition is required for the behavior?
How did you determine the impulse was irresistible?
Attack Volition
“There is, in short, no objective basis for distinguishing between offenders who were undeterrable and those who were merely undeterred, between the impulse that was irresistible and the impulse not resisted, or between substantial impairment of capacity and some lesser impairment.”
U.S. v. Lyons, 731 F.2d 243, 248 (C.A. 5 (La) 1984), quoting Bonnie, Moral Basis Of The Insanity Defense,
69 ABA J. 194, 196 (1983)
Attack Methodology
Attack Methodology
U.S. v. Lyons, 731 F.2d 243, 249 (C.A. 5 (La) 1984).
“One need not disbelieve in the existence of Angels in order to conclude that the present state of our knowledge regarding them is not such as to support confident conclusions about how many can dance on the head of a pin.
In like vein, it may be that some day tools will be discovered with which reliable conclusions about human volition can be fashioned. It appears to be all but a certainty, however, that despite earlier hopes they do not lie in our hands today.