Defending Kevin Davis’s “The Brain Defense”

By Andreas Kuersten

The drafting of a book is an intense undertaking, requiring a significant devotion of time and effort. Accordingly, book reviewers have an obligation to apply themselves dutifully to their task out of respect for the authors, the work that went into the target material, and the readers who turn to them for recommendations on how to spend their valuable time.

With the aforementioned in mind, I recently read a book review in the Times by Caleb Carr, in which he reviewed Kevin Davis’ latest book, The Brain Defense: Murder in Manhattan and the Dawn of Neuroscience in America’s Courtrooms.  Carr’s assessment of the work was far from positive.  Nevertheless, as someone who works in the area of criminal law and whose research focuses on the intersection of this legal subfield and neuroscience, I was interested in a non-academic take on the issues that I’ve devoted so much of my time to, so I purchased the book.  After finishing it, I reread Carr’s review, and found it to be fundamentally, factually inaccurate.  Irrespective of his subjective opinion, Carr entirely misstates what is actually contained in the book, to the point that one might even venture that he merely skimmed it before nonchalantly churning out his review.  I was surprised that such an esteemed outlet as the Times would publish such a flagrant misrepresentation, and feel compelled to call attention to this unfortunate situation.  The New York Times Book Review is arguably the most influential guide to readers, and Davis’s years of research and writing and resulting book deserve more than the perfunctory and faulty treatment accorded to them by Carr.

The Brain Defense addresses the rise in the use of neuroscience evidence in criminal legal proceedings over the last several decades, building its narrative around the famous case of Herbert Weinstein.  Many of Carr’s misrepresentations have to do with Davis’s presentation of this case.

Weinstein was a 65-year-old, mild-mannered former ad executive who, during a disagreement with his wife, became violent and strangled her.  He then threw her body out the window of their twelfth floor Manhattan apartment in an effort to make her death look like a suicide.  In preparation for trial, Weinstein’s attorney, Diarmuid White, arranged for his client to undergo several brain imaging sessions.  These revealed a growth the size of an orange (a cyst) pressing against Weinstein’s brain, and that the brain regions abutting the cyst were relatively inactive compared to their activity in normal brains.  Moreover, the regions affected were located in the left frontal lobe, and are typically involved in such cognitive tasks as judgment and impulse control.  White seized on these results and sought to argue that, as a result of the cyst, Weinstein was legally insane when he murdered his wife and should therefore be found not guilty by reason of insanity.  The judge ultimately admitted the brain imaging evidence, but barred any expert testimony expressly linking the cyst to Weinstein’s violent behavior.  Nevertheless, the possible influence of the images, coupled with Weinstein’s diminishing funds for legal fees, led to a plea agreement whereby Weinstein pled guilty to manslaughter and received a much shorter sentence than if he had been convicted of murder.

In his review, Carr claims that “Davis never adequately explores alternate behavioral theories (the work of forensic psychology) that were and are illuminating” in the Weinstein case.  This is untrue.  Davis details Weinstein’s gambling debts, attendance at meetings of the Hemlock Society (a national right-to-die organization that often discusses suicide methods), childhood bullying (and emotional reactions to such situations), and heated conflict with his wife prior to her murder (pp. 118-21, 148, 152, 183-84).  And these are offered as possible alternative explanations for Weinstein’s crime.  Moreover, the case never went to trial.  The only major courtroom action was an evidence hearing in which the parties argued over the admission of images of Weinstein’s brain.  Thus, other explanations for Weinstein’s conduct were never a factor in legal proceedings, although Davis writes that they would have been in the event of a trial (p. 152).

Carr next laments that “for all his conversations with psychiatrists, neuroimagers, neuroscientists and legal players (on both sides), Davis does not mention any interview with [Daniel] Martell,” a neuropsychologist expert witness for the prosecution who was highly critical of Weinstein blaming his cyst for his conduct.  Yet Davis specifically writes in the “Notes” section of the book that the material for chapter nine, in which he extensively presents Martell’s opinions, (pp. 118-21), “was drawn from interviews with Daniel Martell…” (p. 305).

In addition to his misstatement regarding Martell, Carr goes on to write, “Nor does Davis weigh any assertions other than those of the defendant and his lawyer that Weinstein’s ‘brain made him do it.’”  This is patently false.  Extensive stretches of the book are devoted to the expert witnesses and overall case presented by the prosecutor, Zach Weiss, which were very clearly hostile to the contention that Weinstein’s “brain made him do it” (pp. 115-21, 147-58).  Davis then comes back to an interview he conducted with Weiss in which the former prosecutor repeated his criticisms of Weinstein’s defense, (pp. 229-30), and summarizes an article written by Weiss several years after the case in which he expresses significant concern with the admission of brain images as evidence in criminal trials (pp. 184-85).  Davis also presents Martell’s reiterated criticisms of Weinstein’s cyst defense from an article the neuropsychologist wrote on the case, (pp. 183-84), as well as the views of Kim Glazer Goldberg, the daughter of the victim, from an interview, who expressed that she “didn’t buy it” with regard to Weinstein’s argument (pp. 232-33).  There is even this reference to the unambiguously critical position of Professor Stephen Morse of the University of Pennsylvania Law School, who has studied the Weinstein case in-depth: “The Weinstein case, he argues, is a glaring example of the misuse of neuroscience in the courtroom” (p. 286).

Carr also asserts that “Davis fails to adequately explore or appreciate how ‘the brain defense’ came back to haunt Weinstein, as it has so many similar defendants.”  This contention is easily shown to be inaccurate by the following passage: “By claiming that the cyst in his brain had had something to do with causing him to kill his wife, Weinstein might have hurt his chances for parole.  It gave the commission good reason to conclude that Weinstein was still a potential danger to society.  After all, if he had been unable to control his impulses due to a brain dysfunction, what would he do if another person angered him?  Could his condition spark another attack?” (p. 222).   In addition, Davis addresses the broader implications of the possible double-edged nature of defenses based on brain dysfunction: “A popular theory has it that while the use of neuroscientific evidence may help exonerate defendants, it could backfire by unfairly marking them as a future danger to society by showing their brains aren’t working properly.  In her paper [Professor Deborah] Denno [of Fordham University School of Law] rebuts that theory, finding that such evidence is rarely used to invoke or predict a defendant’s future dangerousness” (p. 214).

Stepping away from Davis’s treatment of the Weinstein case, Carr takes issue with “[l]ong chapters [] devoted to a far-ranging set of subjects, many unrelated to Weinstein’s and similar cases: Tales of veterans with traumatic brain injury or violent football players suffering from chronic traumatic encephalopathy.”  He claims that these chapters are inappropriately included and that “[t]he reader forgets, sometimes, the rather spectacular subtitle of the book, and the fact that the book has a specific focus.”  It’s perplexing that Carr would think that chapters addressing the legal implications of typical brain injuries affecting categories of individuals are out of place in a book examining the intersection of criminal law and neuroscience.  The two chapters examining the plights of veterans and football players with brain damage suffered in the course of their professions raise important questions beyond simply whether evidence of such afflictions should be admissible in criminal trials. There are numerous professions that involve repetitive trauma to the head.  Are they creating criminals?  If neuroscience evidence is determined to be admissible, does it matter how the brain damage came about?  Are veterans with brain maladies less blameworthy for their crimes or less deserving of harsh criminal penalties than those born with them or who acquire them through leisure activities, such as skiing or skateboarding?  By raising these questions, the chapters in question are important additions to The Brain Defense.

Finally, Carr takes issue with how Davis concludes: “Despite overwhelming evidence to the contrary, his closing words ring full of hope: ‘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.’”  For starters, Carr misquotes Davis.  The sentence actually continues a point started at the beginning of the paragraph and starts with “But accepting…” (p. 288).  In turn, Carr ignores the sentences immediately preceding the passage he quotes, in which Davis is very clear about the limitations of neuroscience evidence in criminal proceedings: “[D]ecades of research do tell us that damages brains—‘broken brains,’ if you will—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 any crime—or pinpoint the cause of a single act or demonstrate that someone is legally insane” (p. 288).  Carr also ignores the entire concluding chapter that precedes the passage he quotes, in which Davis robustly presents strong arguments against the admission of neuroscience evidence to legally excuse individual criminality (pp. 267-89).  And Carr leaves unmentioned Davis’s presentation of the numerous other ways in which advances in neuroscience can legitimately impact legal systems, such as by “illuminat[ing] how we decide to punish people, how we rehabilitate them, and how we might create a fair system of justice by understanding how people process information when weighing whether to commit a crime”  (p. 270).  Neuroscience’s contributions are more likely to be in the realms of broad legal policy and frameworks, not individual cases, and, contrary to Carr’s misstatements, this is the point with which Davis concludes.  (The aforementioned points also clearly contradict Carr’s assertion that, throughout the book, Davis “could not help but bring his natural proclivities towards the defense’s side to bear.”  Detailed criticisms of Weinstein’s use of neuroimaging for criminal defense purposes, and the general use of neuroscience evidence in individual criminal cases, are presented throughout the book, and the concluding chapter brings the problematic nature of such practices home.)

All told, Carr’s review is a very inaccurate relation of what is actually contained in The Brain Defense.  I reiterate my disappointment that such a work found its way into the Times.  Davis’s book is a detailed and balanced account of the increasingly intertwined fields of neuroscience and criminal law, and is well worth readers’ time.

Picture: Copyright Penguin Random House, The Brain Defense: Murder in Manhattan and the Dawn of Neuroscience in America’s Courtrooms

One response to “Defending Kevin Davis’s “The Brain Defense”

  1. I’m delighted that you took the time and effort to write this! I agree with you 100%! I checked to see what Carr had written in the past when this review was released and immediately realized that he seems to dislike scientific forensics and instead seems to focus on writing about old-fashioned, shoe-leather practices of solving crimes. I found the review to be misleading, inaccurate, and unfair. I was shocked that The NY Times would select this particular author to review this particular book. The Brain Defense is the most thorough and accurate book on the intersection of law and neuroscience. It’s garnered rave reviews in almost every major publication except the Times which is an unusual occurrence. I would like to see The New York Times do something to make up for this unfair review. I know personally the extent to which Kevin Davis went to get the truth and the facts presented in his book. I am the daughter of Herbert Weinstein and he is the ONLY person, out of the hundreds who have written about my father’s case, who actually contacted me, other family, the defense lawyers, the prosecutor, and researchers directly involved in the Herbert Weinstein case as it unfolded.

    Liked by 1 person

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