Monday, June 4, 2018

Session 3: The Abby Normal Brain

The Historic Jeanine Nicarico Murder Case

The 1983 murder of Jeanine Nicarico is the nightmare of every parent, but the disturbing details are not part of this story. You can always read about it in on Wikipedia if you have a morbid curiosity.

Police and prosecutors sent two men, Rolando Cruz and Alejandro Hernandez, to death row. After years of appeals, a sheriff's lieutenant reversed his testimony and Cruz was acquitted at his third trial in 1995. Shortly thereafter charges against Hernandez were dropped.

Three DuPage County prosecutors and four deputies were indicted for conspiracy, because they had hidden evidence that showed Cruz and Hernandez were innocent.. 

You see, Brian Dugan had confessed.

Brian Dugan and the Abby Normal Brain Defense

Brian Dugan was a very bad man doing time for similar crimes. In 2009 he pled guilty at his death penalty trial and the jury considered whether he should be sentenced to death or not.

This is where the Abby Normal Brain defense -- and, more or less, the Bear -- comes in.

It is relevant to this course on how the internet is making us stupid and wicked because a big part of that story is about how our online time is physically changing our brains. The other is a media critique along the lines of McLuhan and Postman. Eventually, it will all come back around to show how many of the problems we see in the world are, if not manifestations of, at least aggravated by humans struggling with new ways of handling information without giving it sufficient thought because it's just so easy and ubiquitous.

For the first time in Illinois history, the results of functional magnetic resonance imagery (fMRI) were to be introduced into evidence. Dr. Kent Kiehl had taken his fMRI road show from New Mexico to Illinois to see if Brian Dugan was a psychopath or not.

You probably know what an MRI is, or perhaps have even had one. An MRI gives a static picture of the brain. An fMRI purports to scan the brain, run the results through a computer, and show brains in the process of being used. In this case, emotionally-charged pictures are shown to the subject to see what areas "light up" -- or don't. Kiehl claims to be able to detect psychopathy this way.

Just Because We Can, Should We?

The Bear had been arguing in print and in our little circle of death penalty lawyers on the state payroll  that the last thing defense lawyers should do is portray defendants as nothing more than "Abby Normal" brains.

Bear did not and still does not understand how it is a good thing to prove to a jury a defendant is a remorseless intraspecies predator incapable of empathy and biologically doomed by an Abby Normal brain to commit crimes. Not that there aren't psychopaths, although they're rare. Ted Bundy is the classic example. Brian Dugan might be one, for all Bear knows.

Not only is the Bear philosophically opposed to a reductionist materialistic world-view, he does not welcome this kind of thing into the law. But most of all, he thought it was just a bad strategy. 

Prosecutors (Bear's first death penalty case was as prosecutor) and defense counsel use all sorts of tricks to dehumanize (prosecutors) and humanize (defense). The prosecutor stands and points an accusing finger at the defendant (he's always "the defendant"). The defense lawyer puts his arm around his client at counsel table and leans in to whisper into his ear, even if it's just to say, "look how jurors two and three are paying more attention to each other than the evidence." He's always named, never "the defendant."

They call it "optics" now, a term the Bear finds annoying, but there you go. On some level, jurors think, "Wow, that nice Bear isn't afraid of him, so he can't be all bad." Or, maybe, "That Bear is just as awful as his client." You just never knew what jurors are thinking.

Boning Up on the Brain

Before the fMRI of Brian Dugan was entered into evidence, the Bear had done much research on the brain. It was of vital professional importance. He lost the argument. The defense went forward on the cockeyed theory that Brian Dugan should be spared because he was a dangerous, broken machine. 

He was sentenced to death (not that a different theory would have made much difference). The Bear, however, had learned a whole lot about how our brains work, and has kept up with the research. 

That is why he read with such interest the book by Nicholas Carr, The Shallows: What the Internet is Doing to Our Brains. Carr marshals impressive evidence that the internet is physically changing our brains and the very way we think. Is it possible we're all getting our own Abby Normal brains from the enormous differences between what we do online and anything that humanity has ever seen before?


  1. Ooooh! Just ordered 'The Shallows' from the library. Will you be handing out gold stars or 'warm fuzzy' stickers for completion?

  2. Replies
    1. Yay! I feel really special. But chagrined that I'm receiving it over the Internet. :/

  3. Finally, just what we wanted but don't deserve.


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