Jump to ContentJump to Main Navigation
The Impact of Behavioral Sciences on Criminal Law$

Nita A. Farahany

Print publication date: 2009

Print ISBN-13: 9780195340525

Published to British Academy Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780195340525.001.0001

Show Summary Details

(p.465) Appendices to Chapter 10: Behavioral Genetics Evidence in Criminal Cases: 1994–2007

(p.465) Appendices to Chapter 10: Behavioral Genetics Evidence in Criminal Cases: 1994–2007

Source:
The Impact of Behavioral Sciences on Criminal Law
Publisher:
Oxford University Press

Deborah W. Denno

Appendix a : CHARTS 1–3

Appendices to Chapter 10: Behavioral Genetics Evidence in Criminal Cases: 1994–2007

Chart 1 SEVERITY OF SENTENCING BY NUMBER OF CASES

(p.466)

Appendices to Chapter 10: Behavioral Genetics Evidence in Criminal Cases: 1994–2007

Chart 2 REASONS FOR INTRODUCING GENETICS EVIDENCE BY NUMBER OF CASES

(p.467)

Appendices to Chapter 10: Behavioral Genetics Evidence in Criminal Cases: 1994–2007

Chart 3 NATURE OF EVIDENCE SOUGHT TO BE ADMITTED BY NUMBER OF CASES

(p.468)

Appendix b: CASES REFERENCING GENETICS EVIDENCE, 1994 TO JUNE 1, 2007

Case

Summary

Comments

Miller v. State, No. 01-06-00034-CR, 2007 WL 1559822 (Tex. App. Hous. 1 Dist. May 31, 2007).

Miller was convicted of aggravated robbery. 2007 WL 1559822, at *1. His appeal was based in part on a claim of ineffective assistance of trial counsel. The appellate court affirmed. Id. At the punishment phase, Miller’s mother testified that various family members, including Miller, had been diagnosed with a genetic condition that “can cause rapidly changing behavior,” including paranoia and anxiety. Id. at *2.

Miller’s mother testified that Miller and other family members had been diagnosed with the genetic condition, “acute intermittent porphyria.” Id. at *2.

The appellate court did not refer to this condition in affirming the lower court’s decision. Genetics evidence, then, was mentioned only in passing.

People v. Lancaster, 158 P.3d 157 (Cal. 2007).

Lancaster was convicted of murder, among other offenses, and sentenced to death. 158 P.3d at 162. During the penalty phase, a psychologist testified for the defense that Lancaster has an antisocial personality that might have a genetic component. Id. at 165.

Genetics evidence was mentioned primarily in passing by a testifying psychologist.

State v. Frank, 957 So. 2d 724 (La. 2007).

Frank was convicted of murder and was sentenced to death. 957 So. 2d at 727. On appeal, the state supreme court affirmed in part and remanded in part. Id. On remand, a psychiatrist testifying for the state noted that “there is a possibility that susceptibility to PTSD may be partly genetic and that someone who has inherited a predisposition to the disorder may be vulnerable to mental illness if he or she is traumatized under the stress of environmental influences.” Id. at 734. The district court held that Frank refused the assistance of a mental health expert and concluded that she was not entitled to a new sentencing phase of her trial. On appeal, the state supreme court affirmed, holding in part that Frank did not demonstrate prejudice because she did not have expert assistance funded by the state.

Frank argued that she should be given a new sentencing phase, presumably to bring up past sexual abuse. in the context of stating that her claims of sexual abuse were dubious, an expert “conceded” that vulnerability to PTSD may be partially genetic and therefore, when combined with environmental stressors, may heighten the likelihood of acquiring a mental illness. Id. at 734.

However, Frank was denied a new sentencing phase since she had already refused the assistance of a mental health expert, so the issue went no further. Genetics evidence, then, was mentioned only in passing.

Johnson v. Quarterman, 483 F.3d 278 (5th Cir. 2007).

Johnson was convicted of capital murder and sentenced to death. 483 F.3d at 279. The district court dismissed his subsequent petition for writ of habeas corpus and denied his application for certificate of appealability. The court held that the state court did not unreasonably deny relief on Johnson’s claim that his counsel rendered ineffective assistance, in part by failing to conduct a complete and thorough mitigation investigation. Id. in support of this claim, Johnson submitted an affidavit of a mitigation specialist who stated that she had discovered evidence concerning numerous potentially mitigating factors, including a genetic predisposition to substance abuse. Id. at 278. Johnson then requested a certificate of appealability, to appeal the district court’s denial of relief. This request, too, was denied. Because the district court was found not to have erred in its procedural ruling, the appellate court rendered it unnecessary to address the ineffective assistance claim. Id. at 279. The court did note, however, the district court’s holding that “even if considered, the mitigation specialist’s affidavit would provide no grounds for relief because, in the context of Johnson’s extensive history of extreme and brutal violence, it is highly unlikely that evidence of Johnson’s childhood abuse and privations in foster homes was so compelling that there is a reasonable probability that at least one juror could have reasonably determined that death was not an appropriate sentence.” Id. at 288 n.*.

The mitigation specialist seemed to refer to Johnson’s family history of substance abuse and his genetic predisposition to substance abuse as two separate but related items. Id. at 288 n.*. Also, the appellate court acknowledged the district court’s comments that childhood abuse evidence was not compelling enough to create a “reasonable probability that at least one juror” would have voted against a death sentence; however, the court made no mention of the alleged genetic predisposition in this context. Id. at 288. in general, genetics evidence was mentioned in passing.

People v. Smith, 150 P.3d 1224 (Cal. 2007).

Smith was charged with two counts of first degree murder, among other offenses, and entered a plea of not guilty by reason of insanity. 150 P.3d at 1231. One of several doctors appointed to evaluate Smith testified during the sanity phase that Smith had a genetic predisposition for psychopathy and other untreatable antisocial characteristics. Id. at 1234. The jury returned a verdict that Smith was sane at the time of the offenses. He was subsequently convicted and sentenced to death. The state superior court denied Smith’s automatic application to modify the death verdict and sentenced him accordingly. On automatic appeal to the state supreme court, Smith’s conviction for receiving stolen property was reversed but the judgment was otherwise affirmed. Id. at 1257.

Genetics evidence appeared—if relevant at all—to work against the defendant. An expert who evaluated Smith during the sanity phase of his trial “opined that defendant had a genetic predisposition for psychopathy and antisocial characteristics, and that such disorders were essentially untreatable,” id. at 1234, but “found no psychiatric evidence that defendant was legally insane at the time of the offenses.” Id. At 1235.

Mickey v. Ayers, No. C-93-0243 RMW, 2006 WL 3358410 (N.D. Cal. Nov. 17, 2006).

Mickey was convicted of murder and sentenced to death. 2006 WL 3358410, at *1. The state supreme court affirmed, and Mickey’s application for a writ of certiorari from the U.S. Supreme Court was denied. Following several unsuccessful petitions, Mickey petitioned the district court for habeas corpus relief. His petition was denied on the guilt phase claims, but was granted on the penalty phase claim of ineffective assistance of counsel. Id. The court stated that the performance of Mickey’s counsel was deficient in part because they failed to “effectively utilize the expertise of their mental health experts” in the “preparation and presentation of [Mickey’s] mitigation case. …” Id. at *15. Based on available information regarding Mickey’s background, a forensic psychologist would have testified at the penalty phase regarding the “strong correlation between a genetic history of addictive disorders and predisposition to developing addictions,” and stated that “Mickey’s genetic loading, combined with his family environment and underlying mental illness, caused him to be predisposed to alcohol and drug dependency.” Id. at *19.

As the court noted, “[t]he defense could have presented a mitigation case that Mickey was a psychiatrically disturbed individual who was exposed to abuse and surrounded by family members who had psychiatric problems themselves.” Id. at * 20. in essence, the difference between what the defense could have done and did do was “substantial.” Id.

State v. Idellfonso-Diaz, No. M2006-00203-CCA-R9-CD, 2006 WL 3093207 (Tenn. Crim. App. Nov. 1, 2006) (remanding decision of trial court).

Idellfonso-Diaz was charged with murder. 2006 WL 3093207, at *1. On interlocutory appeal, the state contended that the trial court erroneously permitted expert testimony regarding Idellfonso-Diaz’s diminished mental capacity at the time of the crimes. Id. The expert witness had arranged genetic testing for Idellfonso-Diaz and testified that he “had a genetic vulnerability to becoming depressed and dysfunctional, especially in stressful, crisis-type situations.” Id. at *2. The witness also stated that “considered separately, [Idellfonso-Diaz’s] genetic vulnerability … would not have been particularly serious,” but would have “‘impaired him, to some extent’” when combined with other factors such as intoxication, PTSD, and depression. Id. The state argued that because the witness’s testimony did not indicate that Idellfonso-Diaz “completely lacked the mental capacity to commit the crimes, his testimony is inadmissible. …” Id. at *4. The appellate court agreed and remanded the case.

The appellate court considered expert testimony that genetic vulnerability was one factor that may have contributed to defendant’s behavior; however, the court determined that such impairment, along with the defendant’s other disorders, was not sufficiently detrimental to negate the defendant’s mental capacity to commit the crimes. The expert’s testimony was rendered inadmissible.

Hamilton v. Ayers, 458 F. Supp. 2d 1075 (E.D. Cal. 2006).

Hamilton was convicted of murder and sentenced to death. 458 F. Supp. 2d at 1086. His conviction and sentence were affirmed, and his petition for habeas corpus was denied. Hamilton then petitioned for federal writ of habeas corpus. Hamilton argued that he was incompetent to stand trial and that his attorneys did not investigate his mental state. Id. at 1085–86. An expert witness opined that “Hamilton’s family history of genetic disorders,” among other factors, “burdened him with extreme mental and emotional impairments … that compromised his ability to fully appreciate the nature and consequences of his acts or to conform his conduct to the requirements of the law.” Id. at 1091. The witness also stated “that both sides of Hamilton’s family have histories of genetically transmitted disorders which expressed themselves early in Hamilton’s life,” while another expert stressed “that Hamilton was raised in an environment of intergenerational alcoholism, child abuse and domestic violence. …” Id. at 1127. The court noted, however, the lack of medical records to support Hamilton’s claim of incompetence. Id. at 1091. The court also emphasized that Hamilton’s behavior did not appear to be irrational, and he had “not shown that he was unable to understand the nature of the proceedings against him or to assist counsel.” Id. at 1092. The court concluded that “the evidence presented … does not raise a ‘bona fide doubt’ as to Hamilton’s competence to stand trial” and that “defense counsel was not ineffective for failing to raise the issue of Hamilton’s competence.” Id.

Despite substantial testimony by mental health professionals concerning Hamilton’s genetically transmitted disorders and family background of violence and abuse, the court spotlighted other factors relatively more heavily—specifically, Hamilton’s lack of medical records, behavioral irrationality, or indications that he could not understand the proceedings.

State v. Ketterer, 855 N.E.2d 48 (Ohio 2006), cert. denied, Ketterer v. Ohio, 127 S. Ct. 2266 (2007).

Ketterer pleaded guilty to murder and was sentenced to death. 855 N.E.2d at 56. His appeal was based in part on a claim of ineffective assistance of counsel, due to his attorneys’ failure to effectively present mitigating evidence. Id. at 66. At the penalty phase, a clinical psychologist testified that Ketterer “does have a ‘severe mental disease or defect,’” which has a “genetic component … in that Ketterer’s family is ‘filled with people with depression, bipolar disorder, and suicides.’” Id. at 78. The state supreme court described “evidence of Ketterer’s severe mental problems as a significant mitigating factor,” id. at 80, but “conclude[d] that the aggravating circumstances outweigh the collective mitigating factors,” id. at 81, and affirmed the trial court’s ruling, id. at 58.

The concurrence also emphasized the genetic links to defendant’s mental illness, noting that “many of Ketterer’s family members suffer from depression and bipolar disorder,” including a brother treated for “major depressive disorder” as well as bipolar disorder, a second brother who was institutionalized at a state mental hospital, a cousin treated for depression, and another cousin and uncle who both committed suicide. Id. at 83.

Morris v. State, No. W2005-00426-CCA-R3-PD, 2006 WL 2872870 (Tenn. Crim. App. Oct. 10, 2006).

Morris was convicted of murder and rape and sentenced to death. 2006 WL 2872870, at *1. The state supreme court affirmed, and the trial court denied Morris’s petition for postconviction relief. Morris appealed, based in part on a claim of ineffective assistance of counsel. Id. Specifically, Morris argued that his counsel was deficient “in failing to uncover information that would have led to a diagnosis of Bipolar Disorder II. …” Id. at *45. A neuropsychiatrist concluded that Morris suffered from “genetically transmitted” bipolar disorder. Id. at *22. This neuropsychiatrist stated that affidavits from Morris’s family “were crucial with regard to establishing a genetic/family history of mental disorders.” Id. at *47. An expert in medical addiction testified that ‘“[i]n terms of addiction medicine … [w]e go through the family history because we know that addiction is strongly genetic.’” Id. at *18. A mitigation specialist working for Morris testified that because certain mental illnesses are genetic, a “thorough familial investigation” was merited; however, she described “her function in the present case” as “‘not very proactive.’” Id. at *15. The appellate court affirmed the postconviction court’s judgment, however, holding in part that Morris “was not denied effective assistance of counsel at trial or on appeal.” Id. at *35.

While acknowledging expert testimony concerning the genetic, familial, and environmental components of addiction, the court noted that some of the missing information about the defendant viewed by the defense as potential mitigating evidence would have actually been “harmful” because “it revealed and supported [defendant’s] long-time drug use and also indicated that [defendant] relied upon the sale of illegal drugs as a source of income.” Id. at *61.

Loving v. United States, 64 M.J. 132 (C.A.A.F. 2006).

Loving was sentenced to death. His conviction was affirmed by the appellate court and the Supreme Court. Loving subsequently filed a habeas petition. 64 M.J. at 134–35. in partial support for his claim that his trial counsel did not effectively investigate and present mitigation evidence, Loving presented information related to his “parental and family history of alcoholism and substance addiction,” which could have “established [Loving’s] genetic proclivity for alcoholism.” Id. at 151. Noting that Loving “has presented a potentially meritorious claim of ineffective assistance of counsel arising from his trial defense counsel’s failure to … [expand] the mitigation investigation into the defendant’s traumatic life history,” id. at 151–52, the appellate court held it did “not have the factual predicate to determine if [its] prior decision addressing the issue of ineffective assistance of counsel was correct. …” Id. 134. The appellate court thus remanded for an “evidentiary hearing to address the issue of whether [Loving’s] trial defense counsel ‘chose to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible’ thereby prejudicing [Loving] in the capital sentencing phase of the court-martial.” Id.

In remanding for an evidentiary hearing, the court noted that defendant’s “traumatic family background and upbringing” warranted examination of extenuating or mitigating factors. Id. at 152. in general, however, genetics evidence was mentioned in passing.

Jones v. Schriro, 450 F. Supp. 2d 1023 (D. Ariz. 2006).

Jones was convicted of first-degree murder and sentenced to death. 450 F. Supp. 2d at 1025. The state supreme court affirmed the convictions and sentences on direct appeal. Jones then filed a petition for writ of habeas corpus, claiming “ineffective assistance of trial counsel based on counsel’s failure to investigate and present mitigating evidence.” Id. Testifying on behalf of Jones at the sentencing hearing, a mental health expert stated that Jones’s substance abuse was the result of “genetic predisposition and self-medication.” Id. at 1031. Another mental health expert identified mitigating factors that included a “genetic loading for substance abuse and affective disorders.” Id. at 1027. The trial court found, however, that the mitigating circumstances did not outweigh the aggravating circumstances or merit leniency. Id. at 1029. The district court denied habeas relief, holding in part that trial counsel’s failure to seek neuropsychological testing did not prejudice petitioner and thus could not amount to ineffective assistance of counsel. Id. at 1046.

Despite testimony from three expert witnesses concerning defendant’s history of abuse and genetic predisposition, the district court was concerned about the lateness with which some of defendant’s claims were revealed. As the district court explained, “the sentencing judge would likely have viewed with skepticism [defendant’s] more-recent allegations of sexual and physical abuse, given their late disclosure, their inconsistency with other information in the record, and [defendant’s] ‘obvious motive to fabricate.’” Id. at 1047 (citation omitted).

State v. Sexton, 904 A.2d 1092 (Vt. 2006) (affirming in part, reversing in part, and remanding).

Sexton was charged with second-degree murder. 904 A.2d at 1095. A court-appointed psychiatrist concluded that Sexton was insane at the time of his offense, with his psychosis possibly occurring as a result of illegal drugs (e.g., LSD) that “exacerbated or activated a preexisting latent illness.” Id. at 1106. This rare reaction, the psychiatrist noted, is more likely to occur among individuals with a genetic predisposition. Id. at 1105 n.13. Another psychiatrist cited research indicating greater susceptibility to a psychotic response to LSD use among individuals with a genetic predisposition to schizophrenia, and stated that Sexton’s “‘mental health history clearly puts him in this category.’” Id. The district court held that Sexton “was entitled to rely on the defense of diminished capacity due to voluntary intoxication” and, in a second decision, “conclude[ed] that [Sexton] was also entitled to argue that he was legally insane at the time of the killing.” Id. at 1096. On appeal by the state, the state supreme court affirmed in part, reversed in part, and remanded, holding in part that Sexton could not assert an insanity defense “based on the voluntary consumption of illegal drugs that activate a latent mental disease or defect. …” Id. at 1111.

As the state supreme court explained, even if the defendant possessed “a latent mental illness, it does not alter the fact that … defendant would not have been in a psychotic state at the time of the offense had he not chosen to use illegal consciousness-altering drugs.” Id. at 1106. in essence, the defendant’s evidence “demonstrates that his recent, voluntary use of illegal drugs was an essential causal element of the mental illness and psychotic episode that followed.” Id.

Keen v. State, No. W2004-02159-CCA-R3-PD, 2006 WL 1540258 (Tenn. Crim. App. June 5, 2006), cert. denied, Keen v. Tennessee, 127 S. Ct. 2250 (2007).

Keen was convicted of first-degree felony murder and sentenced to death. 2006 WL 1540258, at *1. On direct appeal, his conviction was affirmed, but the state supreme court reversed and remanded. On remand, the jury again imposed the penalty of death and the state supreme court affirmed. Keen’s petition for postconviction relief was denied, and Keen appealed, claiming in part ineffective assistance of counsel. Id. The attorney who represented Keen in his earlier trials testified that she did not offer any evidence regarding a genetic predisposition to mental illness. Id. at *9. A psychologist for the defense testified that within Keen’s family, “‘there is a significant genetic heritability or genetic predisposition to mental illness.’” Id. at *24. He stated that Keen’s siblings’ backgrounds were also important, since “the children share genetic parenting or partial genetic parenting,” as well as “the same climate of abuse and neglect.” Id. He also noted “the importance of multi-generational family history in capital sentencing evaluations,” as “one may be genetically predisposed to many characteristics, such as personality disorders, psychological disorders and substance abuse.” Id. at *23. Based on the psychologist’s overview of Keen’s family history, he concluded that “in the context of a capital murder, one may say that [Keen’s] behavior is at the end of a generational pyramid that involves genetic influences … from generation to generation” and noted that this mitigation evidence was available during Keen’s earlier trials. Id. However, the appellate court affirmed the judgment of the postconviction court, concluding that “[t]here is no reason to lack confidence as to the outcome in this case because the aggravating circumstances submitted to the jury outweighed the mitigating circumstances.” Id. at *46.

The psychologist’s expert testimony emphasized a link between defendant’s family history and his criminal behavior, which involved the rape and murder of a young child, noting for example that “[t]he family’s sexual dysfunction transcends generations and impacts both genders,” and more specifically, the “‘generational sexual deviation and abuse directed toward children.’” Id. at *23. Likewise, in defendant’s family, “there is an increased incidence of persons who abandon their children, of persons who sexually molest children, and persons who have significant alcohol and drug histories. …” Id. at *24. While Keen voluntary chose to commit the crime, “he did not have the same choice as everyone else due to his background and history” as well as “risk factors” that propelled his behavior. Id.

People v. Mertz, 842 N.E.2d 618 (III. 2005), cert. denied, Mertz v. Illinois, 127 S. Ct. 47 (2006).

Mertz was convicted of first-degree murder, among other crimes, and sentenced to death. 842 N.E.2d at 622. On appeal to the state supreme court, he argued in part that imposition of the death penalty was excessive in light of his inherited alcoholism (as well as other factors, such as military service). Id. An expert witness specializing in substance abuse evaluations testified that Mertz “satisfied the criteria for alcohol dependence” and that this dependence was “genetically influenced.” Id. at 641. Additionally, a psychologist testified for the defense “that defendant had a genetic predisposition to alcohol dependence and mood disorder.” Id. at 644. in evaluating Mertz’s excessive sentence argument, the court made strong comments about the testimony on Mertz’s alcoholism: “[D]efendant’s claim of ‘inherited’ alcoholism is highly questionable in terms of credibility and, in our opinion, did little to help defendant at sentencing. Apparently, defendant believed he would be less blameworthy in the eyes of the jurors for his failure to seek help with his drinking problems, and his failure to earnestly try to overcome them, if he attributed the problems to genetics and family models. We believe defendant was mistaken in this respect. Moreover, the case defendant made for ‘inheriting’ alcoholism is not convincing.” Id. at 662.

The court specifically addressed Mertz’s claim of “‘inherited’ alcoholism,” calling it “highly questionable” and doubting its credibility, as well as the extent of the evidence of drinking among his family members. Id. at 662. The court also made clear its skepticism about Mertz’s links between his alcoholism and his behavior. “We believe the effort to blame defendant’s drinking problems upon an alleged genetic or family predisposition was little more than a thinly veiled effort to divert responsibility from defendant for his failure to address his problems and take responsibility for them. To the extent that credible evidence was adduced on this subject, and that evidence might be considered mitigating, we find the weight of that evidence was insignificant.” Id. at 663.

Marquard v. Sec’y for Dep’t of Corrections, 429 F.3d 1278 (11th Cir. 2005), cert. denied, Marquard v. McDonough, 126 S. Ct. 2356 (2006).

Marquard was convicted of first-degree murder and armed robbery and sentenced to death. 429 F.3d at 1282. The district court denied his petition for habeas corpus relief. On appeal, Marquard claimed ineffective assistance of counsel during the penalty phase of his trial. Id. at 1294. During the penalty phase, a psychologist testified that individual personality traits stem in part from “genetic predisposition.” Individuals who develop “maladaptive personality traits” are considered to have a “personality disorder,” which varies in type depending on the individual. Id. at 1288. The psychologist stated that Marquard “had traits typical of many different personality disorders.” Id. The court of appeals affirmed, holding in part that the state court’s decision that counsel did not meet the standard for ineffective assistance because it did not present some of the mitigation evidence was not “‘contrary to’ clearly established federal law.” Id. at 1306.

The role of genetics evidence as related to Marquard is more implied than directly stated. The expert witness testified that Marquard presented “‘personality problems,’” and then explained that individual personality traits are “traceable to genetic predisposition and also the individual’s environment and upbringing and values in the home.” Id. at 1288. Genetics evidence, then, was mentioned only in passing.

State v. Manning, 885 So. 2d 1044 (La. 2004).

Defendant was convicted of first-degree murder and sentenced to death. 885 So. 2d at 1057. At the sentencing phase, a forensic psychiatrist offered mitigation expert testimony, stating that during a psychiatric evaluation, defendant “minimized his alcohol problems, which may have stemmed from a genetic predisposition.” Id. at 1096–97. Defendant appealed to the Louisiana Supreme Court on claims unrelated to the genetics evidence. His conviction was affirmed. Id.

Genetic predisposition was mentioned only in passing.

Von Dohlen v. State, 602 S.E.2d 738 (S.C. 2004).

Defendant was convicted of murder and armed robbery and sentenced to death. 602 S.E.2d at 740. His convictions and sentence were affirmed on direct appeal, and he applied for postconviction relief, arguing that during the sentencing phase, a psychiatrist for the defense had understated defendant’s mental illness. Id. at 741. At the postconviction relief hearing, the psychiatrist testified that had he seen certain medical and psychiatric records (which had been available before the trial), he would have diagnosed the defendant with a more serious mental illness. This diagnosis would have been based in part on records indicating a possible genetic basis for the defendant’s chronic depression, as well as on an overall genetic predisposition for mental disorders. Id. at 741–42. The hearing judge denied relief, but on appeal the South Carolina Supreme Court reversed and remanded for a new sentencing hearing, holding that defense counsel’s lack of preparation prevented a defense expert witness from accurately depicting defendant’s mental condition at the time of the crime. Id. at 746.

Genetic predisposition was not a pivotal issue but may have formed some of the basis for remand.

Dennis ex rel. Butko v. Budge, 378 F.3d 880 (9th Cir. 2004).

Defendant pled guilty to first-degree murder and was sentenced to death. 378 F.3d 882. The Nevada Supreme Court affirmed. Defendant filed a petition for writ of habeas corpus, which was dismissed by the state district court. Defendant appealed to the Nevada Supreme Court, but then requested that his appeal be withdrawn. His counsel refused defendant’s request, questioning defendant’s competence. Id. at 883. The Nevada Supreme Court remanded the case to state district court for a competency hearing. Defendant was found competent, and his counsel was directed to withdraw the appeal. Id. at 886. Instead, defendant’s counsel removed herself from the case and filed a “next-friend” petition for habeas corpus in the federal district court. The petition was dismissed for lack of standing because the defendant was deemed competent. Id. at 887–88. Defendant’s former counsel appealed. Id. at 888. The court of appeals affirmed the dismissal of the petition and denied the request for a stay of execution. Id. at 895. The concurring opinion commented on the difficulty of distinguishing a mental illness from “the myriad … memories, experiences and genetic predispositions that go to make up each individual’s unique personality. …” Id. The concurrence also noted that “[w]e as judges and lawyers attempt to capture these philosophical dilemmas in words that can have very different meanings to different people, and that often may not respect the concepts that mental health professionals would use to capture cognitive and volitional capacity.” Id.

The case itself did not involve genetics evidence, but the concurring opinion mentions genetic predispositions in the context of differentiating such predispositions from mental illness (asking how mental illness can be distinguished from genetic predisposition).

Hall v. State, 160 S.W.3d 24 (Tex. Crim. App. 2004) (en banc).

Defendant was convicted of capital murder and sentenced to death. 160 S.W.3d at 26. On appeal, the Texas Court of Criminal Appeals affirmed his conviction and sentence. Defendant then appealed to the U.S. Supreme Court and filed a state application for writ of habeas corpus. The Supreme Court vacated the Texas Court of Criminal Appeals’s decision and remanded the case for reconsideration in light of Atkins v. Virginia, 536 U.S. 304 (2002). Hall, 160 S.W. 3d at 27. in defendant’s habeas action, the trial court determined that the matter of defendant’s mental retardation was an issue of fact that had not been resolved, and it ordered a hearing by way of affidavits. Id. at 26–27. The defendant submitted affidavits from two psychologists stating that he was mentally retarded. Id. at 32. One affidavit described defendant’s appearance as typical of fetal alcohol syndrome and stated that the defendant also exhibited characteristics resembling other genetic disorders (e.g., XXY), which had existed at birth. Id. at 33. The State submitted a rebuttal affidavit from a neuropsychologist who had testified during the guilt phase of the trial. Id. at 35. This witness explicitly stated that the defendant did not exhibit symptoms of such genetic disorders. Id. The habeas trial court concluded that the defendant was not mentally retarded, and therefore denied relief. The Texas Court of Criminal Appeals determined that the trial court was in the best position to evaluate conflicting evidence regarding the defendant’s mental state, and thus affirmed the trial court’s decision. Id. at 40.

The Texas Court of Criminal Appeals noted that testimony was presented both by and against the defendant regarding the similarity, or lack thereof, of defendant’s mental condition to several genetic disorders. Id. at 39–40. The court weighed this testimony collectively with other evidence in finding against the defendant.

Cauthern v. State, 145 S.W.3d 571 (Tenn. Crim. App. 2004).

Defendant was convicted of felony murder and sentenced to death. 145 S.W.3d at 578. On direct appeal, the Tennessee Supreme Court remanded for resentencing, and defendant was again sentenced to death. The sentence was affirmed on appeal, and defendant’s subsequent petition for postconviction relief was denied. Id. at 579. Defendant appealed the denial of his petition based in apart on a claim of ineffective assistance of counsel at both preceding sentencing hearings: his psychiatric expert witness at the postconviction hearing testified that mitigation evidence could have been presented of defendant’s family history suggesting a genetic predisposition to impulsive behavior. Id. at 588. The Tennessee Court of Criminal Appeals affirmed the denial of postconviction relief, holding any shortcomings by counsel would have made no difference to the outcome. Id. at 578.

In rejecting defendant’s claim that he was prejudiced by the failure to present mitigating evidence about his background at the capital resentencing trial, the court noted that defendant’s stepsiblings experienced abusive upbringings but did not appear to suffer from violent inclinations. Id. at 609.

Davis v. State, No. M2003-00744-CCA-R3-PC, 2004 WL 253396 (Tenn. Crim. App. Feb. 11, 2004).

The only contested issue at the guilt phase of defendant’s trial for murder, reckless endangerment, and carrying a weapon on school property, was his mental state at the time of the crimes. 2004 WL 253396, at *4. A psychiatrist testified for the defense that defendant had a genetic predisposition for mental illness because numerous family members had been hospitalized for mental illness. Id. Defendant was convicted of first-degree murder and sentenced to life imprisonment. Id. at *1. His petition for postconviction relief was dismissed and its dismissal affirmed on appeal to the Tennessee Court of Criminal Appeals. Id. at *11.

Defendant’s appeal was unrelated to his alleged genetic predisposition. Genetic predisposition was mentioned only in passing.

State v. Scott, 800 N.E.2d 1133 (Ohio 2004).

Scott was convicted of murder, among other offenses, and sentenced to death. 800 N.E.2d at 1139–40. On appeal, the state supreme court affirmed the lower court’s judgment, holding in part that the aggravating circumstances outweighed the mitigating factors. Id. at 1151. Included in Scott’s mitigation evidence was testimony from a social worker/mitigation specialist, stating in part that Scott was genetically predisposed for chemical dependencies. Id. at 1148.

Genetic predisposition was mentioned only in passing.

Fudge v. State, 120 S.W.3d 600 (Ark. 2003).

Defendant was convicted of capital murder and sentenced to death. 120 S.W.3d at 601. The Supreme Court of Arkansas affirmed. Defendant appealed a denial of his petition for postconviction relief to the Arkansas Supreme Court, which concluded that the trial court’s order denying defendant’s petition had not met statutory requirements for written findings regarding defendant’s allegation of ineffective assistance of counsel. Id. at 604. The attorneys had failed, among other things, to investigate and present mitigating evidence during the penalty phase, including defendant’s propensity for violence towards women, which “either resulted from a genetic condition or is behavior that was learned from his male role models.” Id. at 602–03. The Arkansas Supreme Court reversed the trial court’s decision and remanded the case for specific findings and conclusions of law. Id. at 603.

The alleged genetic condition was listed as a potentially mitigating factor that required consideration by the trial court.

People v. Allaway, No. G030307, 2003 WL 22147632 (Cal. App. 4 Dist. Sept. 18, 2003).

Allaway was charged with murder, among other offenses, and found not guilty by reason of insanity. 2003 WL 22147632, at *1. His application to be transferred from a state mental hospital to an outpatient treatment facility was denied, and he appealed, claiming that the trial court’s decision was not supported by substantial evidence. Id. An independent evaluator testified that Allaway is genetically predisposed to mental illness and psychotic behavior, and the court noted that Allaway “seemed to admit as much in his testimony.” Id. at *3. The appellate court affirmed the trial court’s judgment, finding no abuse of discretion. Id. at *6.

Here, genetics evidence worked against Allaway for purposes of evaluating future dangerousness. His application for transfer was denied in part based on the testimony of an independent evaluator who stated that Allaway had a “genetic predisposition” to mental illness and psychotic behavior. Id. at *3. The court seemed to accept the genetics link, albeit in a way that worked against Allaway’s application.

State v. Hughbanks, 792 N.E.2d 1081 (Ohio 2003).

Hughbanks was convicted of murder and sentenced to death. 792 N.E.2d at 1089. The appellate court appeared to include “genetic tendency” among the defendant’s relevant background factors: defendant’s father was diagnosed with schizophrenia and there can be “sometimes a familial augmentation” because “schizophrenia ‘runs in families.’” Id. at 1101. The court acknowledged that “many” of defendant’s family members suffered from mental illness and noted the likely negative effect on defendant’s “growth and development.” Id. at 1103. Yet the court found that the aggravating circumstances of the crime outweighed such mitigating factors. Id. at 1104.

The alleged genetic condition was listed as a potentially mitigating factor. Id. at 1103.

Head v. Thomason, 578 S.E.2d 426 (Ga. 2003).

Thomason was convicted of murder, among other crimes, and sentenced to death. 578 S.E.2d at 428. Conviction and sentence were affirmed, and Thomason filed for writ of habeas corpus, which was denied on all grounds except one: that Thomason received ineffective assistance of counsel during the sentencing phase, in part due to his counsel’s failure to offer available mitigation evidence. Id. This evidence included the opinion of a social worker who stated “that Thomason’s family had a strong genetic disposition to alcohol and drug abuse.” Id. at 429 n.1. The habeas court ordered a new sentencing trial, and the warden appealed. Thomason cross-appealed the habeas court’s rejection of his other claims. Id. at 428. On appeal, the state supreme court affirmed the grant of a new sentencing trial, holding in part that defense counsel was ineffective due to failure to offer available mitigating evidence. Id. at 430.

The court stressed “the importance of mitigating evidence in death penalty cases, [explaining] that an attorney has not acted reasonably when he fails to call mental health experts he knows have mitigating evidence and explains his failure to present lay mitigating evidence by asserting that he had no experts to call.” Id. at 430.

State v. Madey, No. 81166, 2002-Ohio-5976, 2002 WL 31429827 (Ohio App. 8 Dist. Oct. 31, 2002) (vacating and remanding sentencing decision of trial court).

Madey was convicted of misdemeanor assault and appealed. 2002 WL 31429827, at *1. The appellate court found that the trial court abused its discretion in imposing probation conditions related to Madey’s drinking, and therefore vacated the sentence and remanded the case. Id. The trial court asked Madey’s mother whether “she knew ‘anything about genetic predisposition to alcoholism?’” and whether she “had a concern that her daughter would become ‘a flaming alcoholic’ because, with such an ethnic background, ‘there [was] nothing she can do about it.’” Id. The trial court also required Madey to “both immediately cease her only employment and also submit an essay ‘on alcoholism and the American Indians,’” id. at *4, which it justified “in part because the issue of a ‘genetic predisposition toward alcoholism’ had been raised in the defense expert’s report and Madey therefore was being ‘hypocritical’ in challenging the terms imposed.” Id. at *4 n.4. The appellate court found that the trial court’s conditions “bear no relation to an interest in doing justice as well as in rehabilitation.” Id. at *4. in vacating defendant’s sentence and remanding, the appellate court also noted that defendant did not “[attempt] to use her family background to excuse her behavior.” Id.

The trial court’s comments are uniquely disturbing in many ways, particularly in terms of how the court stereotypes the relationship between ethnic or national background and alcoholism. For example, the court asked defendant’s mother “if she had ‘ever been on an Indian reservation?’ and if she had ever seen ‘the Scotch or Irish drinking?’” Id. at *1. in turn, the court continuously projected defendant’s danger without any evidence, even characterizing her potential state of being a murder victim as a danger to others: “[I]f you start drinking like this, you’re a danger. You will go out and get yourself attacked, or murdered, or something, and put yourself in these hopeless conditions, which is a bad example, and every time somebody is killed or raped in society, that diminishes the public safety overall.” Id. at *2.

State v. Arausa, No. 2002-439113 (Dist. Ct. Lubbock County July 5, 2002), aff’d, Arausa v. State, No. 07-02-0396-CR, 2003 WL 21803322 (Tex. Ct. App. Aug. 6, 2003).

Defendant was convicted of first-degree, aggravated sexual assault and sentenced to life imprisonment. 2003 WL 21803322, at *1. Defendant claimed on appeal that although a psychologist appointed by the trial court had found him legally sane and competent to stand trial, the trial court had erred in refusing his request for an appointment with a psychiatrist, instead, to assist him in the development of mitigation evidence. Id. at *2. Defendant argued in part that a psychiatrist had been required to discuss a study indicating a genetic predisposition among victims of abuse to become abusers themselves. Id. at *4. The court of appeals responded that the appellant had not based his original request for a psychiatrist on the need to discuss the gene study. On a more general level, the court saw no relevance of the request for the psychiatrist to the defense. It affirmed, concluding defendant was not entitled to a new trial.

The court responded specifically to the defendant’s claim of genetics evidence, but not on a substantive level.

Stevens v. State, 770 N.E.2d 739 (Ind. 2002).

Defendant was convicted of murder and sentenced to death. 770 N.E.2d at 745. His conviction was affirmed on direct appeal to the Supreme Court of Indiana. Defendant’s petition for postconviction relief was denied and its denial affirmed by the Indiana Supreme Court. The petition was based in large part on various claims of ineffective assistance of counsel. Id. at 746. The supreme court rejected these claims, emphasizing that defense counsel’s strategy had been sound. Id. at 752. Defendant’s proposed alternative strategy, the court pointed out, would have conflicted with the defense’s theory that he was a “passive victim of abuse.” Id. at 754. This theory was supported by the testimony of a psychologist for the defense that the defendant’s genetic predisposition was partly to blame for his behavior.

Genetic predisposition was mentioned only in passing, in the context of pointing out why the alternative defense strategy now proposed by the defendant would not have worked (indicating the alternative strategy would have conflicted with the existing defense theory).

Landrigan v. Stewart, 272 F.3d 1221, (9th Cir. 2001), aff’d in part and rev’d in part en banc, Landrigan v. Schriro, 441 F.3d 638 (9th Cir. 2006), rev’d, Schriro v. Landrigan, 127 S. Ct. 1933 (2007).

Defendant was convicted of murder and sentenced to death. His conviction was affirmed on direct appeal by the Arizona Supreme Court. 272 F.3d at 1223. His petition for postconviction relief was denied, as was his petition for habeas corpus. On appeal of these, defendant claimed ineffective assistance of counsel based on counsel’s failure to present mitigating evidence during the sentencing phase of his trial. Id. at 1224. The Ninth Circuit noted that defense counsel had attempted to present evidence regarding defendant’s drug and alcohol addictions during the guilt phase, but that defendant thwarted all such efforts. Id. at 1225. Further, any inadequacies in defense counsel’s investigation prior to the sentencing phase resulted from defendant’s lack of cooperation. Id. at 1230–31. The court was thus skeptical of defendant’s insistence “that he would have allowed the presentation of genetic predisposition evidence.” Id. at 1231. The court concluded that “it is not reasonably probable that the outcome would have been affected,” had evidence of the alleged genetic predisposition to violence been introduced. Id. The Ninth Circuit Court of Appeals, on rehearing en banc, remanded for an evidentiary review, stating that “a defendant can be prejudiced by an attorney’s failure to investigate and present mitigating evidence that could influence the judge’s appraisal of moral culpability.” 441 F. 3d at 649-50. On May 14, 2007, the U.S. Supreme Court reversed the Ninth Circuit, stating that “Landrigan’s mitigation evidence was weak, and the postconviction court was well acquainted with Landrigan’s exceedingly violent past and had seen first hand his belligerent behavior.” 127 S.Ct. at 1944. Further, “the mitigating evidence [Landrigan] seeks to introduce would not have changed the result.” Id.

Citing Mobley v. Head, 267 F.3d 1312 (11th Cir. 2001), and Turpin v. Mobley, 502 S.E.2d 458 (Ga. 1998), the Ninth Circuit characterized the “genetic violence” theory as “rather exotic at the time, and still is.” Landrigan, 272 F.3d at 1228. The theory “suggests that [defendant’s] biological background made him what he is.” Id. Likewise, the court stated, “It is highly doubtful that the sentencing court would have been moved by information that [defendant] was a remorseless, violent killer because he was genetically programmed to be violent, as shown by the fact that he comes from a family of violent people, who are killers also.” Id. at 1228–29. The court also cited People v. Franklin, 656 N.E.2d 750 (III. 1995), in commenting that although [defendant’s] new evidence can be called mitigating in some slight sense, it would also have shown the court that it could anticipate that he would continue to be violent.” Landrigan, 272 F.3d at 1229.

Rogers v. State, 783 So. 2d 980 (Fla. 2001).

Defendant was convicted of first-degree murder and was sentenced to death. 783 So. 2d at 985. On direct appeal, the Florida Supreme Court affirmed, holding in part that the trial court had given proper weight to such mitigating evidence as penalty-phase testimony from a defense mental health expert witness that the defendant suffered from a rare genetic mental disease called porphyria. Id. at 997.

Genetics evidence was mentioned only in passing.

West v. Bell, 242 F.3d 338 (6th Cir. 2001).

West was sentenced to death for rape and murder. 242 F.3d at 339. His attorneys at his state postconviction proceedings filed a motion for appointment of counsel and stay of execution to determine whether West “knowingly, voluntarily, and competently waived his right to seek federal habeas.” Id. The district court entered a stay of execution and scheduled a competency hearing; however, the appellate court vacated the stay of execution, holding in part that West’s former counsel was not able to sue for federal habeas relief as West’s “next friend.” Id. at 341–43. The dissent argued in favor of affirming the district court’s stay of execution, finding that West’s defense counsel could assert rights for West as a next friend in part because there was “reasonable cause to believe that West is incompetent to make a decision to forego filing a federal habeas corpus petition.” Id. at 344. This reasonable cause stemmed in part from defense counsel’s provision of an affidavit from a psychiatrist who indicated that West may be genetically predisposed to mental illness. Id.

Genetics evidence was mentioned only in passing.

State v. Maraschiello, 88 S.W.3d 586 (Tenn. Crim. App. 2000).

Defendant was convicted of charges including first-degree murder and arson and sentenced to life in prison. 88 S.W.3d at 590. On appeal, defendant claimed in part that the trial court had wrongfully excluded testimony that he suffered from “Gulf War Syndrome.” Id. At defendant’s trial, a psychiatrist had testified for the defense that due to mental illness in defendant’s family, defendant was probably afflicted with a genetic predisposition for a delusional disorder, which was exacerbated by his stressful experiences in the military during the Persian Gulf War. Id. at 599. The Tennessee Court of Criminal Appeals affirmed the trial court’s decision to exclude subsequent testimony regarding “Gulf War Syndrome.” Id. at 609.

Genetic predisposition was mentioned in the context of recounting testimony from the trial. Id. at 599. The alleged predisposition was given only passing mention.

Sanchez v. Ryan, 734 N.E.2d 920 (III. App. Ct. 2000).

The Secretary of State denied defendant’s petition to have his driving privileges reinstated. 734 N.E.2d at 921. Defendant’s appeal was based in part on the rejection of expert testimony regarding defendant’s alleged “inherited alcohol tolerance.” Id. at 925. Defendant had claimed that he inherited a high tolerance for alcohol from his uncle and grandfather. Id. at 922. A state circuit court affirmed, as did the Illinois Appellate Court, id., the latter ruling that this testimony had been properly rejected, id. at 924.

In upholding the trial court’s and hearing officer’s rejection of the expert testimony, the court noted that “[t]he record shows that the hearing officer accepted the possibility that a person’s tolerance to alcohol could be inherited. The hearing officer simply refused to believe that the [defendant] here had an inherited high tolerance.” Id. at 925.

State v. DeAngelo, No. CR 97010866S, 2000 WL 973104 (Conn. Super. June 20, 2000).

Defendant was acquitted of robbery, larceny, and attempted assault charges after the court found him unable to control or recognize the wrongfulness of his behavior due to a combined ingestion of alcohol and legally prescribed drugs. 2000 WL 973104, at *1. The court ordered an examination to determine defendant’s mental condition. At a subsequent hearing to investigate whether defendant posed a risk of future violent or criminal behavior, id. at *2, psychiatrists agreed that defendant suffered from obsessive-compulsive disorder (OCD), but varied in their treatment recommendations and assessment of future risk, id. at *3. One psychiatrist testified that defendant “need[ed] supervision; especially if he has a genetic predisposition to bipolar disorder.” Id. at *6. He concluded that “if the [defendant] suffer[ed] another manic episode, he could be dangerous to himself and dangerous to others.” Id. The court determined that, overall, the evaluation team had found that defendant’s release would put the public in danger and ordered that he be committed to a maximum security psychiatric unit for a maximum of ten years, since he “presently constitutes a danger to himself and others.” Id.

An alleged genetic predisposition to bipolar disorder played a role in one psychiatrist’s recommendation that the defendant required supervision. Id. at *6. Genetics evidence was mentioned in passing.

State v. Ferguson, 20 S.W.3d 485 (Mo. 2000).

Defendant was convicted of first-degree murder and sentenced to death. 20 S.W.3d at 485. Following appeal and retrial, the defendant was again convicted and sentenced to death. Defendant’s postconviction motion was denied. Defendant’s appeal was based in part on a claim of ineffective assistance of counsel, id. at 505, because his counsel had failed to investigate and present evidence in the penalty phase including proof of defendant’s genetic predisposition to a major depressive disorder, id. at 509. The Missouri Supreme Court affirmed, concluding that even without the submission of this evidence, there was “ample [other] evidence in support of mitigation, and counsel’s failure to present additional evidence that would have been cumulative does not amount to ineffective assistance of counsel.” Id.

Genetic predisposition was mentioned only in passing.

Benefiel v. State, 716 N.E.2d 906 (Ind. 1999).

Defendant was convicted of rape and murder and sentenced to death. 716 N.E.2d at 910. The Indiana Supreme Court affirmed the sentences and conviction on direct appeal. Defendant’s petition for postconviction relief based largely on a claim of ineffective assistance of counsel was denied. Id. at 911–12. On appeal, defendant argued in part that his counsel had failed to present mitigating evidence during the penalty phase. Id. at 912. These mitigating factors included a genetic predisposition to “‘schizotypal personality disorder.’” Id. at 913. Expert witnesses had testified to this disorder during the guilt phase; therefore, the court reasoned that “[b]ecause the guilt phase evidence was incorporated into the penalty phase, this evidence was available for the jury to consider when it determined its recommended punishment.” Id. Finding no reasonable probability that the failure to reintroduce the testimony had affected the death sentence imposed by the jury, the Indiana Supreme Court determined that defendant suffered no prejudice, and affirmed. Id. at 919.

The appeal focused on the phase at which the mitigating evidence, including a genetic predisposition to a personality disorder, was offered. The court concluded that offering this evidence during the guilt phase was sufficient to ensure that the jury could consider it in determining an appropriate sentence.

State v. Timmendequas, 737 A.2d 55 (N.J. 1999).

Defendant was charged with murder, two counts of felony murder, first-degree kidnapping, and four counts of first-degree assault. 737 A.2d at 64. He was convicted and sentenced to death on the murder charge and received two life imprisonment sentences on the other charges. Id. at 65–66. At the sentencing hearing a psychologist called by the defense testified that defendant’s “[l]ow IQ and genetic defects may [have] … play[ed] a role.” Id. at 71. The New Jersey Supreme Court affirmed defendant’s conviction and sentence. Id. at 172.

The appeal was not based on alleged genetic predisposition. Id. at 55. Genetics evidence was mentioned only in passing.

State v. Spivey, 692 N.E.2d 151 (Ohio 1998).

Defendant was convicted of charges including aggravated murder and was sentenced to death. 692 N.E.2d at 155. Evidence presented by defendant during the penalty phase included testimony from a developmental pediatrics specialist who had earlier diagnosed the defendant with XYY syndrome, a chromosome abnormality resulting in an increased risk of mental disease and behavioral problems. Id. at 165. The specialist testified “that [defendant’s] chromosome abnormality placed him at risk for committing criminal acts, but that the syndrome itself did not cause him to be aggressive or to commit violent acts.” Id. Although the Ohio Supreme Court affirmed defendant’s conviction and sentence, the court noted that the defendant’s “various psychological problems” merited some mitigation. Id. at 170.

The specialist elaborated that “family environment plays a vital role in whether a person with XYY syndrome is likely to engage in criminal behavior.” Id. at 165. Thus, “in this regard … [defendant] ‘did not have a fair shake either from mother nature or from the environment.’” Id. The witness further explained that “‘[t]he combination of the two factors, his genetics, the family, and failure of the environment to fulfill his needs leads to his criminal behavior and violent behavior.’” Id.

People v. Armstrong, 700 N.E.2d 960 (III. 1998).

Defendant was convicted of charges including felony murder and was sentenced to death. 700 N.E.2d at 963. At the sentencing hearing, the trial court had restricted the testimony of a social worker who spoke to the defendant’s genetic predisposition to alcoholism because the witness lacked the expertise required to offer an opinion on genetics. Id. at 970. The Illinois Supreme Court held that the trial court had properly excluded this and other testimony, id. at 970–71, and affirmed the lower court’s decision in all respects, id. at 963.

The court did not comment on the general admissibility of genetics evidence. This outcome suggests that the evidence might have been admissible if the testifying witness had possessed the necessary expertise.

Alley v. State, 958 S.W.2d 138 (Tenn. Crim. App. 1997).

Defendant was convicted of charges including murder and sentenced to death. 958 S.W.2d at 140. The Tennessee Supreme Court affirmed each conviction on direct appeal. Id. After he was denied by the trial court, defendant appealed as a matter of right to the Tennessee Court of Criminal Appeals. The Tennessee Court of Criminal Appeals reversed denial of defendant’s petition for postconviction relief and remanded the case to the trial court for an evidentiary hearing with a new judge. Id. at 147. At the hearing, members of a medical team that had evaluated defendant before trial testified that they had not consulted a geneticist regarding various physical problems that afflicted the defendant. Id. at 141. A mental health program specialist explained that these problems appeared to be unrelated to defendant’s defense of multiple personality disorder and thus did not merit further investigation. Defendant was classified as a malingerer. A psychiatrist testified that while “a cluster of physical anomalies can point to a syndrome with a genetic origin,” the team did not see fit to “consult a geneticist in this case.” Id. at 143. A psychologist who had examined defendant testified that “genetic defects would possibly affect behavior,” but noted that “at the time of the evaluation … the team deemed as unnecessary any investigation of genetic problems.” Id. On appeal, defendant claimed that he had been denied effective assistance of counsel with respect to proving his mental condition. Defendant argued, in part, that “his counsel was ineffective by failing to introduce any significant mitigating evidence during the sentencing phase of the trial.” Id. at 150.

The appeal implies that defendant’s genetic condition may have influenced defendant’s behavior. Expert witnesses acknowledged that genetic factors may negatively affect behavior but claimed that this was not true in the present case.

State v. Hartman, 476 S.E.2d 328 (N.C. 1996).

Defendant was convicted of charges including first-degree murder and was sentenced to death. 476 S.E.2d at 331. On appeal, defendant argued that the trial court had committed reversible error by refusing his request to submit specific nonstatutory mitigating circumstances (presumably during the sentencing phase), instead combining them to simplify the presentation to the jury. Id. at 339–42. Defendant argued in addition that the trial court’s instructions had prevented the jury from evaluating relevant mitigating evidence, such as his family history of alcoholism, instead submitting the following instruction: “Consider whether the defendant is an alcoholic.” Id. Presented this way, this statement did not allow the jury to determine whether the defendant had a “genetic predisposition to alcohol abuse,” and the jury “was more than likely” to view the defendant’s alcoholism “simply as weakness or unmitigated choice.” Id. The North Carolina Supreme Court held that the jury was able to consider any mitigating evidence due to a “catchall mitigating circumstance” that had been submitted, id., and affirmed, id. at 349.

The North Carolina Supreme Court ruled that even if the trial court erred by not submitting evidence of defendant’s “‘genetic predisposition to alcohol abuse’” as a mitigating factor, the “error was harmless beyond a reasonable doubt.” Id. at 342.

People v. Hammerli, 662 N.E.2d 452 (III. App. Ct. 1996).

Defendant was charged with first-degree murder, found guilty but mentally ill, and sentenced to 35 years in jail. 662 N.E.2d at 452. At the trial, a forensic psychiatrist testified for the defense that defendant was afflicted with a “genetic predisposition to severe mood disorder.” Id. at 456. On appeal, defendant claimed the trial court had incorrectly rejected his insanity plea. Id. at 458. The appellate court affirmed, noting that the circuit court “did not specifically embrace or reject any of the expert testimony,” but “clearly found defendant mentally ill, but able to conform his conduct to the requirements of the law at the time of the crime.” Id. Because “[t]his determination was not against the manifest weight of the evidence,” the court concluded “that defendant failed to sustain his burden of proving he was insane by a preponderance of the evidence.” Id. at 458–59.

The Appellate Court appeared dubious of the defense expert witnesses’ testimony, noting, for example, that although the defendant’s treating psychiatrist had diagnosed him with improving depression, all four experts “found defendant to be legally insane at the time of the murder and were able with hindsight to fit defendant’s actions into their various diagnoses.” Id. at 458. “Each [expert] found in defendant’s behavior facts to support his own opinion.” Id.

People v. Franklin, 656 N.E.2d 750 (III. 1995).

Once defendant’s murder conviction and death sentence were affirmed by the Illinois Supreme Court, he sought postconviction relief, alleging, inter alia, ineffective assistance of counsel. 656 N.E.2d at 760–61. The Circuit Court of Cook County’s denial of relief was appealed to the Illinois Supreme Court, and defendant’s conviction was affirmed. Id. at 754. in support of his claim of ineffective assistance, defendant alleged that an investigation by counsel would have revealed mitigation evidence including “his family’s history of mental illness and violence.” Id. at 761. The court found it unlikely that such evidence would have affected defendant’s sentence. “The proffered evidence regarding defendant’s psychological problems and his family’s violent and psychological history was not inherently mitigating. Although this evidence could have evoked compassion in the jurors, it could have also demonstrated defendant’s potential for future dangerousness and the basis for defendant’s past criminal acts. The evidence of defendant’s mental illness may also have shown that defendant was less deterrable or that society needed to be protected from him.” Id. (citation omitted). The Illinois Supreme Court affirmed. Id. at 754.

A genetics defense was alluded to and rejected, although it was never actually identified as such. in support of his claim of ineffective assistance of counsel, defendant also argued that his counsel had failed to request a jury instruction explaining that “the alternative sentence to death is natural life in prison without parole, if the State places the defendant’s future dangerousness at issue.” Id. at 760. However, this court concluded that “the prosecution did not place the defendant’s future dangerousness at issue during the second stage of the sentencing hearing,” thus rendering defendant’s claim without merit. Id.

Billiot v. State, 655 So. 2d 1 (Miss. 1995).

Defendant was convicted of capital murder and sentenced to death. 655 So. 2d at 2. At a postconviction evidentiary hearing to determine the defendant’s competency to be executed, a psychology professor who had interviewed and examined defendant testified that he did not believe that the allegedly schizophrenic defendant was malingering because of defendant’s “genetic predisposition for the symptoms” of schizophrenia. Id. at 8. The court nevertheless found the defendant competent. On appeal, the Mississippi Supreme Court held the trial court had not erred in refusing to weigh the testimony of this one witness more heavily than the combined testimony of the other expert witnesses, all of whom opined that defendant was competent to be executed. Id. at 14. Categorizing defendant’s competency to be executed as a “post-conviction relief question” properly deferred to the judgment of the trial and circuit judges, that court refused to conduct de novo review. Id. at 12.

The appellate court acknowledged that the witness testifying to defendant’s genetic predisposition to schizophrenia “had done more recent and more extensive research on the issue of [defendant’s] sanity” than had the other expert witnesses. Id. at 13.

State v. Wilson, No. Civ. A. 92CA005396, 1994 WL 558568 (Ohio Ct. App. Oct. 12, 1994).

Defendant was convicted of aggravated murder, kidnapping, and aggravated arson and was sentenced to death. 1994 WL 558568, at *1. On appeal, the Ohio Court of Appeals affirmed, determining, in part, that the aggravating circumstances of the crime outweighed the mitigating factors presented during the penalty phase, such as defendant’s genetic predisposition to alcoholism. Id. at *43.

Genetic predisposition was mentioned only in passing.

Hendricks v. Calderon, 864 F. Supp. 929 (N.D. Cal. 1994), aff’d, 70 F.3d 1032 (9th Cir. 1995).

Defendant was convicted of two counts of first-degree murder, including felony murder, and was sentenced to death. 70 F.3d at 1035. His petition for writ of habeas corpus was denied. On appeal, the denial was reversed and remanded. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Defendant’s amended petition was denied and remanded again for a postconviction hearing on defendant’s claim of ineffective assistance of counsel as to the penalty phase of his trial. Hendricks, 70 F.3d at 1035 n.1. Defendant claimed his counsel had failed to call two expert witnesses who could have testified about mitigating circumstances. These witnesses stated at the hearing that defendant had a family history of mental illness and that he therefore had a genetic predisposition to serious mental illness. 864 F. Supp. at 934–35. The experts explained that the predisposition was “exacerbated by … [a] violent and traumatic upbringing” that included physical, emotional, and sexual abuse. Id. at 935. One expert stated that the defendant was “genetically predisposed and vulnerable to serious mental illness.” Id. Another would have testified at trial that defendant “was insane and that he had diminished capacity at the time of the homicides.” Id. The Ninth Circuit Court of Appeals agreed with the district court that although it was reasonable for trial counsel not to call the experts to testify about an insanity defense during the guilt phase, withholding this potential mitigating evidence of a genetic predisposition to mental illness and insanity at the sentencing phase was not unreasonable under the circumstances and was prejudicial. 70 F.3d at 1044–45. The Ninth Circuit further suggested that mitigating evidence regarding the defendant’s “difficult life” might have affected the outcome of the case. Id. at 1045.

“Quoting Penry [v. Lynaugh, 492 U.S. 302 (1989)], the Hendricks court reiterated that ‘the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background, character, or the circumstances of the crime.’ in Hendricks’s case, evidence of a genetic predisposition to mental illness would certainly be classified as ‘relevant to a defendant’s character.’ Thus, the court held that Hendricks’s trial counsel’s failure to offer, among other things, mitigating evidence of a genetic predisposition to mental illness and insanity at the sentencing phase resulted in prejudice.” Cecilee Price-Huish, Born to Kill? “Aggression Genes” and Their Potential Impact on Sentencing and the Criminal Justice System, 50 SMU L. REV. 603, 617–18 (1997) (citations omitted).

(p.469) (p.470) (p.471) (p.472) (p.473) (p.474) (p.475) (p.476) (p.477) (p.478) (p.479) (p.480) (p.481) (p.482) (p.483) (p.484) (p.485) (p.486) (p.487) (p.488) (p.489) (p.490) (p.491) (p.492) (p.493) (p.494) (p.495) (p.496) (p.497) (p.498)