Brain Tumor Defense For Jewish Center Bomb Threat Suspect Recalls 1991 Murder Trial

Ken Davis's book, "The Brain Defense," looks at the murder trial of Herbert Weinstein, in which lawyers argued that Weinstein was not guilty of killing his wife, because he had a brain tumor.

MICHEL MARTIN, HOST:

Finally today, we want to turn to a disturbing story causing consternation in the U.S. and abroad. A 19-year-old has been arrested at his home in Israel in connection with dozens of threatening phone calls to Jewish community centers in the U.S., where he's also a citizen. The rash of threats caused tremendous distress and fear. Many community centers, schools and other gathering places have had to evacuate or increase security in recent months. His Israeli public defender is offering a theory for this disturbing behavior, though.

According to the Israeli media, defense lawyer Galit Bash is suggesting a brain tumor the suspect has had since he was 14 is affecting his behavior so dramatically that he's not been able to go to school or serve in the military. Now, you might find this argument hard to believe, but it is not new. Back in 1991, a murder trial in the U.S. brought modern neuroscience into the courtroom as a legal defense strategy, and along with it ideas that have challenged centuries-old notions about morality, motivation and consciousness.

A new book out called "The Brain Defense" tells the story of Herbert Weinstein, who confessed to police that he'd strangled his wife and threw her out of the window of their 12th-floor apartment in Manhattan. Weinstein's lawyer noticed that something seemed off about his client. He seemed strangely detached about the death of his wife. And it turned out he had a massive cyst in his brain. So Weinstein's lawyer posed the question - could the brain tumor be responsible for his client's behavior? And if so, did that mean Weinstein was innocent?

The author of "The Brain Defense," Kevin Davis, joined me from WBEZ in Chicago. And given how important the case has become to criminal defense, I ask him why the case of Harvey Weinstein (ph) isn't better remembered today.

KEVIN DAVIS: At the time of the murder, it made the front page of the New York papers. As a matter of fact, one of the headlines said "High-Rise Horror." So at the time it was a very, very high-profile case. But after the initial murder had occurred, nobody covered the trial during a day-to-day basis, so it just sort of was under the radar for a long time.

MARTIN: Well, he wasn't the first to argue or to have his representatives argue that he was not responsible because of a brain defect. So why do you think Weinstein's case became such a marker in this area?

DAVIS: So brain scans had been used prior mostly in death penalty cases. But the Weinstein case was different in that this was used in what's known as the guilt phase of a trial. This idea that people whose brains are damaged should be considered differently under the law goes all the way back to the Greek court system, where the Greeks had recognized and tried to create a judicial system in which they took into consideration the mental state of someone.

They were interested in why people committed crimes. And they also recognized that people with mental defects should be considered differently under the law. And this eventually would lead to different forms of the insanity defense over the years.

MARTIN: Well, one of the things that made this case particularly challenging for Mr. Weinstein's lawyer, Diarmuid White, is that he confessed. So tell us a little bit about Mr. Weinstein's lawyer, Diarmuid White, and how he came up with the idea of trying to get these brain scans admitted as evidence.

DAVIS: Sure. Diarmuid White was certainly an innovator with this case. You know, like any good lawyer, his job is to come up with the best defense he possibly could for his client. So he smartly had some of his staff research medical journals, studies about the effects of brain tumors and brain damage on people's impulses. And he was able to also recruit some very important neuroscientists who helped affirm this idea that the cyst in Weinstein's brain impaired his ability to control his impulses.

MARTIN: This was back in 1991. It was a very different era. Now, you know, we live in an age when we have started to hear so much more about the human brain. We're talking about CTE in football players, for example, and whether there's a connection to their off-the-playing-field behavior. And yet you tell us - and I think most people know this - that judges, jurors, even other scientists remain profoundly skeptical about the so-called brain defense. Why do you think it is that this is not widely accepted when other forms of scientific evidence, like, for example, DNA are now widely accepted?

DAVIS: It's been used for years in our court system, arguments about mental health and mental defects. That's really not new. The hard thing is to really show cause and effect. Did they get that injury before they became involved in criminal activity? We don't really know.

MARTIN: But is the question here why aren't more juries persuaded by this science when they are in fact persuaded by other science? And is that in part because the people who are in a position to mount this kind of defense tend to be more affluent when a lot of people may have been exposed to this kind of trauma and just don't have the means to dig into this area?

DAVIS: Well, right, and you make a good point, Michel. I mean, all clients cannot afford to have expensive brain scans. In my book, I talk about a lawyer in Florida who asks every one of his clients, whether they've been arrested for DUI or for murder, to have their brain scanned at their own expense, which is about $3,000. So no, not everybody is going to be able to do that sort of thing.

But the other thing is that the brain defense is not necessarily meaning that clients or defendants are to get off scot-free. You know, we have an obligation to protect people. And we also have an obligation, on the other hand, to offer compassionate understanding and smart sentencing to people who may benefit from treatment in addition or in lieu of incarceration.

MARTIN: And what about the person - obviously, you know, a criminal case is not, you know, a personal matter. It is the people versus whomever. It is the society rendering its judgment about what is best. But yet we have come to a place of believing that people who've been harmed deserve to be heard. Do you think that if we were to take a different approach that people who have been harmed by somebody with a brain defect or brain trauma - do you think that that would offer closure?

DAVIS: It might offer some understanding. You know, for example, Herbert Weinstein's entire family believed that he should go to prison. But over the years, they began to soften their position a little bit because it helped them understand a little bit about why it was. It didn't excuse him, but it helped them understand why. You know, Herbert Weinstein did not fit the traditional legal definition of insanity.

He understood the difference between right and wrong. And he could appreciate the consequences of his actions. But his family believes that that cyst - and if you see a picture of it in a brain scan, it's very compelling - must have had some effect on his thinking on that terrible day that he had killed his wife.

MARTIN: Before we let you go, Kevin Davis, you know I've got to ask - what happened?

DAVIS: Do I really have to give away the ending?

MARTIN: Yes. This was in 1991. We can Google it.

DAVIS: So the battle in court over the admission of this evidence ended with a judge saying that this PET scan can be admitted in court. So the prosecutor in the case, Zachary Weiss, he looked at those images and thought, if a jury sees this, if they see this image with a big black hole in it that they're going to think something is definitely wrong with this guy. So he reached out and offered a plea agreement. So Weinstein did serve a number of years. And he was released when he was almost 80. And he died just about a year or so after being released from prison.

MARTIN: That's Kevin Davis. His book is called "The Brain Defense: Murder In Manhattan And The Dawn Of Neuroscience In America's Courtrooms." Thank you for the spoiler alert. Kevin Davis, thanks so much for speaking with us.

DAVIS: Thank you, Michel.

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