MAN MURDERS 13 PEOPLE & ASKS FOR AN "AUTOPSY OF MY BRAIN" IN HIS SUICIDE NOTE--AUTOPSY REVEALS STUNNING REASON FOR THE MURDERS

When is someone responsible for criminal behavior? Should a person be punished for doing a heinous act if he has lost the ability to fully control his actions? This article is from the excellent writer, David Eagleman (and many thanks to Fred & CD for lending me a copy of his latest book, Incognito, which I highly recommend especially for his portrayal of sentencing solutions geared toward individual responsibility). This article was excerpted in the Atlantic Magazine.

The Brain on Trial

Advances in brain science are calling into question the volition behind many criminal acts. A leading neuroscientist describes how the foundations of our criminal-justice system are beginning to crumble, and proposes a new way forward for law and order.

By DAVID EAGLEMAN

ON THE STEAMY first day of August 1966, Charles Whitman took an elevator to the top floor of the University of Texas Tower in Austin. The 25-year-old climbed the stairs to the observation deck, lugging with him a footlocker full of guns and ammunition. At the top, he killed a receptionist with the butt of his rifle. Two families of tourists came up the stairwell; he shot at them at point-blank range. Then he began to fire indiscriminately from the deck at people below. The first woman he shot was pregnant. As her boyfriend knelt to help her, Whitman shot him as well. He shot pedestrians in the street and an ambulance driver who came to rescue them.

The evening before, Whitman had sat at his typewriter and composed a suicide note:

I don’t really understand myself these days. I am supposed to be an average reasonable and intelligent young man. However, lately (I can’t recall when it started) I have been a victim of many unusual and irrational thoughts.

By the time the police shot him dead, Whitman had killed 13 people and wounded 32 more. The story of his rampage dominated national headlines the next day. And when police went to investigate his home for clues, the story became even stranger: in the early hours of the morning on the day of the shooting, he had murdered his mother and stabbed his wife to death in her sleep.

It was after much thought that I decided to kill my wife, Kathy, tonight … I love her dearly, and she has been as fine a wife to me as any man could ever hope to have. I cannot rationa[l]ly pinpoint any specific reason for doing this …

Along with the shock of the murders lay another, more hidden, surprise: the juxtaposition of his aberrant actions with his unremarkable personal life. Whitman was an Eagle Scout and a former marine, studied architectural engineering at the University of Texas, and briefly worked as a bank teller and volunteered as a scoutmaster for Austin’s Boy Scout Troop 5. As a child, he’d scored 138 on the Stanford-Binet IQ test, placing in the 99th percentile. So after his shooting spree from the University of Texas Tower, everyone wanted answers.

For that matter, so did Whitman. He requested in his suicide note that an autopsy be performed to determine if something had changed in his brain—because he suspected it had.

I talked with a Doctor once for about two hours and tried to convey to him my fears that I felt [overcome by] overwhelming violent impulses. After one session I never saw the Doctor again, and since then I have been fighting my mental turmoil alone, and seemingly to no avail.

Whitman’s body was taken to the morgue, his skull was put under the bone saw, and the medical examiner lifted the brain from its vault. He discovered that Whitman’s brain harbored a tumor the diameter of a nickel. This tumor, called a glioblastoma, had blossomed from beneath a structure called the thalamus, impinged on the hypothalamus, and compressed a third region called the amygdala. The amygdala is involved in emotional regulation, especially of fear and aggression. By the late 1800s, researchers had discovered that damage to the amygdala caused emotional and social disturbances. In the 1930s, the researchers Heinrich Klüver and Paul Bucy demonstrated that damage to the amygdala in monkeys led to a constellation of symptoms, including lack of fear, blunting of emotion, and overreaction. Female monkeys with amygdala damage often neglected or physically abused their infants. In humans, activity in the amygdala increases when people are shown threatening faces, are put into frightening situations, or experience social phobias. Whitman’s intuition about himself—that something in his brain was changing his behavior—was spot-on.

For the rest of this brilliant article from the The Atlantic Magazine, please go to the following:

The Brain on Trial - Magazine - The Atlantic

FEDERAL PLEA AGREEMENT WAIVER OF APPEAL BITES THE HAND THAT CREATED IT

Federal Criminal Law attorneys often lament the lack of real bargaining power in plea agreements between the Government and Defendants in the Middle District of Florida - and in the case below the Southern District of Florida - often resulting in lopsided plea agreements with bloated provisions which require Defendants to waive their right to appeal among other unsavory actions. Usually, the result is catastrophic for an effective federal appeal should there be any subsequent sentencing issues in need of resoulution. In the case below the waiver of appeal in a Plea Agreement bites the Governments hand allowing the 11the Court of Appeals to reject the Government's attempt to increase the Defendant's sentence upon appeal.

United States v. Arthur Smith, No. 10–15044 

( September 7, 2011) Appeal from the United States District Court for the Southern District of Florida Panel: Tjoflat, Carnes, and Fay, Circuit Judges. Carnes, Circuit Judge: Affirmed Writing that “sentence appeal waivers serve interests of the judiciary as well as interests of the government and defendants,” the Eleventh Circuit yesterday refused to allow the government to withdraw its previously filed brief – in which it had argued that appellant Smith’s appeal waiver applied to preclude relief – and refused the government’s request to vacate the sentence and remand for resentencing under the Court’s recent decision in United States v. Rojas, 645 F.3d 1234 (11th Cir. 2011). The Court held hold that claims under the Fair Sentencing Act of 2010, like any other type of sentence claim, can be waived by a knowing and voluntary appeal waiver, noting that “a waiver would be worthless if it covered only issues that lacked merit.” Because it found that Appellant Smith’s appeal waiver was knowing and voluntary, it affirmed his sentence. The full text of the decision can be found here: 
http://www.ca11.uscourts.gov/opinions/ops/201015044.pdf 


Federal Crimes Trial Lawyer & Criminal Defense Attorney in Florida

USING THE SENTENCING COMMISSION REVIEW TABLE FOR UNIQUE SENTENCING ARGUMENTS

Many thanks to Amy Baron-Evans for this unique argument at federal sentencing for clients showing the court the effects of disparity of sentences for similar acts and there respective recidivism rates. As defense lawyers in the Middle District of Florida are aware these arguments typically are met with indifference by our local Judges; however, its great to throw in as an additional point where a Judge is leaning in your direction anyway and is searching for any reason to reduce the sentence - say, within the framework of the personal characteristics of your client:

The Commission's Fifteen Year Review reports that the recidivism rate of defendants sentenced as career offenders based on prior drug offenses "more closely resembles" the recidivism rate for offenders in the otherwise applicable criminal history category.  See U.S. Sent’g Comm’n, Fifteen Years of Guidelines Sentencing:  An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 133-34 (2004). I just noticed this Table 14 in the Commission's 2010 Sourcebook. You can find this at the following place ------ --------- --------http://www.ussc.gov/Data_and_Statistics/Annual_Reports_and_Sourcebooks/2010/Table14.pdf  Using it, you could argue that the average sentence for a drug trafficker sentenced as a career offender is 167 months, but for a defendant in criminal history IV, for example, it's 98.3 months, or 60% of the career offender sentence. Or, for example, if your client's instant offense is robbery but he is a career offender based on drug priors, the average sentence for a robber sentenced as a career offender is 156.3 months but for a defendant in criminal history IV, it's 71.5 months, or 45% of the career offender sentence. There are lots of ways you could use this table in career offender and other cases.  It shows average sentence length for primary offenses by criminal history category. 

NO IT'S NOT CSI FORENSIC LAB FAILURES WITH ERRORS, LIES & FALSE TESTIMONY

Every attorney practicing Criminal Law needs to be aware that Testimony provided by Government Experts is often riddled with error. And error leads to the worst thing that can happen in criminal law, wrongful convictions.
 A new book, Strengthening Forensic Science in the United States: A Path Forward shows the failure of many crime labs to abide by scientific standards. Here are a few of their findings:

Forensic labs "lack mandatory and enforceable standards, founded on vigorous research and testing, certification requirements, and accreditation. Additionally, forensic science and forensic pathology research, education, and training lack strong ties to our research universities and national science assets.  ...  In addition to the problems emanating from the fragmentation of the forensic science community, the most recently published Census of Crime Laboratories conducted by BJS describes unacceptable case backlogs in state and local crime laboratories."  Due to documented understaffing, the NRC found that makes it difficult for the labs to avoid errors.  They find the standards of forensic practice in need of serious upgrading.  Of greater concern than that they are understaffed is the "knowledge base" problem; "Adding more dollars and people to the enterprise may reduce case backlogs, but it will not address fundamental limitations in the capabilities of forensic science disciplines to discern valid information from crime scene evidence."

Forensic "science " research is hap-hazard, and they criticize it being driven by "professional [i,e., LEO] cultures" with a "reliance on apprentice-type training and a guide-like structure of disciplines." -- "The fragmented nature of the enterprise raises the worrisome prospect that the quality of evidence presented in court, and its interpretation, can vary unpredictably according to jurisdiction." The forensic science community lacks central governance to pull itself out of its current weaknesses, and none of the disciplines sees any need for change -- though NRC does -- they are certain that DOJ and the FBI should not be the seat of that governing body though: "There is little doubt that some existing federal entities are too wedded to the current 'fragmented' forensic science community, which is deficient in too many respects.  Most notably, those agencies fail to produce a rigorous research agenda to confirm the evidence reliability methodologies used."

Now they know what we always knew: it's like science, but not always real science with the rigors and tests of reliability real science requires; leading to real errors as well as   erroneous interpretation of results in testimony. It's also important to note that even fingerprint evidence is often unreliable and DNA evidence can be fabricated, with the government often providing false forensics testimony.

NO IMMUNITY FOR SERVICE OF PROCESS IN FLORIDA LAW

Brand new Florida law regarding service of process - Thanks to Maria J. Gutierrez for providing this important summary of Florida's new law ending immunity for service of process.

The immunity enjoyed by residents of Florida’s gated communities is over for many. Security guards, doormen and other sentinels of gated communities and condominium complexes are now required to allow unannounced access to process services which means our privacy rights have taken another blow. Even though gated communities have increased dramatically in recent history Florida becomes on the third state, following California and Georgia, to pass a law that allows for the serving notice of lawsuit on residents of such communities. 

One alternative to serving the process personally of course is to publish notices but judges recognize the poor likelihood that a defendant will see a public notice. This is often not the best way to ensure fair due process. 

It's important for lawyers to remember that on occasion judges have invalidated service because the process server didn’t initial the documents for recording in the place a judge specified and this led to confusion about where to annotate a document. This is now clarified in the bill in that the initial should be on the front page of the service documents. And in Florida when it can be proven that service of process was fraudulent the server can be charged with a felony.

At a time when many more people are being served with legal papers than ever before in the history of Florida, it's to thier benefit that process servers are often very resourceful people and will have to be so if they are to serve documents on the residents on Fisher Island just off South Beach. Access to the Island is controlled by way of a privately operated ferry by the Islanders who can refuse to take anyone to the Island on the ferry. So process servers may have to learn to swim or club together and get a boat to take them across the Island should there be a need for effecting service in the future. Hope if you go to that Island no one tries to serve you there.

FLORIDA FEDERAL CRIMINAL DEFENSE ATTORNEYS SHOULD NOTE CHANGES FOR APPEAL BRIEFS

Many of the Clearwater Criminal Defense Lawyers and CJA lawyers may not be aware that on Monday, Aug. 1, 2011, the new appellate rules go into effect. Just when you think you understand them, the legal rules always change.

For Federal lawyer's who have an appeal it's always important to review the rules before you file a brief. There aren't many changes, mostly nuances and reorganization of the 11th Circuit Clerk's office.  Many appeals will either be based on an entire trial or will involve an appeal of the Federal Sentencing Guidelines or the way the Court interprets and applies the guidelines or the law itself such as an appeal on whether false imprisonment of lawyers is a violent crime under the federal law - it isn't.

One important change is the re-designation of the “Statement of Jurisdiction” section of the initial brief to “Statement of Subject-Matter and Appellate Jurisdiction.” 11th Cir. R. 28-1(g). This may sound trivial, but the Court likes procedural conformity, so it is a good idea to comply. For briefs filed on or after Monday, August 1, 2011, change the jurisdictional section in your template and now entitled it: "Statement of Subject-Matter and Appellate Jurisdiction." As per the contents of the jurisdictional statement, 11th Cir. R. 28-1(g) has been amended to note that the "jurisdictional statement must contain all information required by FRAP 28(a)(4) through (D)." 
Federal Rules of Appellate Procedure 28(a)(4)(A) through (D) specify that the jurisdictional statement include the basis for the district court’s jurisdiction {18 U.S.C. § 3231 in criminal appeals} and the appellate court’s jurisdiction {18 U.S.C. § 3742 in most sentencing appeals; 28 U.S.C. § 1291 in most other types of criminal appeals}, with citations to the applicable statutes and relevant facts establishing jurisdiction, the filing dates establishing the timeliness of the appeal, and an assertion that the appeal is from a final order or judgment. 

It's also important in grinding federal cases to never give up hope. Often federal defense lawyers seem beaten down by harsh results and the overwhelming complexity of the appeals process. Never forget the successes which federal appeals have brought countless defendants to restrict harsh unfair drug sentencing such as the crack to cocaine ratio as redefined by Congress and the Courts due to countless defense appeals from lawyers who never forgot simple plain fairness.