As the science of concussions and their long-term effects advance, so too does the many ways in which a criminal defendant may seek to be set free.<\/p>\n
Criminal defendants and their lawyers are looking to prior sport-related brain injuries<\/a> as a causative factor for the illegal behavior.<\/p>\n According to the Observer-Reporter<\/a>, former high school football player, Jordan Clemons, is facing the threat of the death penalty after being charged with brutally murdering his girlfriend.<\/p>\n Clemons\u2019 lawyer recently filed a motion with the court citing his client\u2019s extensive history of brain injuries, including multiple concussive and sub-concussive blows from football. His lawyer requested that a neurologist and psychologist evaluate his client.<\/p>\n The court, correctly, granted his request.<\/p>\n Clemons\u2019 lawyer explained the purpose of his motion, \u201cDiminished capacity is often the phrase used when a defendant\u2019s state of mind does not meet the legal requirements for first-degree murder, which requires a premeditated, willful and deliberate killing with specific intent to kill. If capacity is diminished but a defendant is found to have committed the act, it falls to a lesser degree of murder.\u201d<\/p>\n While not a complete defense, Clemons\u2019 lawyer is seeking medical evidence to establish that his client lacked the necessary mental state to be found guilty for first-degree murder, which could potentially allow the jury to find Clemons guilty of a lesser charge such as second-degree murder. It also sets the stage for the introduction of mitigating factors if Clemons is found guilty of first-degree murder.<\/p>\n This could mean the difference between life in prison and death.<\/p>\n Lawyers have an ethical obligation to provide competent representation<\/a>. This is an ever-evolving ethic, which is especially true in the rapidly advancing area of \u201cneurolaw<\/a>.\u201d<\/p>\n A recent decision by the Alaska Court of Appeals highlights the necessity of investigating a client\u2019s brain-injury history.<\/p>\n In Starr v. State<\/em>, A-11250, 2014 WL 2834502 (Alaska Ct. App. June 18, 2014), a woman was convicted of second-degree murder after stabbing her boyfriend. She subsequently sought post-conviction relief, contending that her lawyer provided ineffective counsel by failing to investigate her concussion history. In her motion, the defendant included an affidavit from a neuropsychologist who opined that Starr\u2019s \u201cbehavior surrounding the stabbing was consistent with her having suffered a concussion.\u201d Id.<\/em><\/p>\n In reversing the trial court\u2019s decision to deny the defendant\u2019s application for post-conviction relief, the Court of Appeals admonished the trial court for violating the defendant\u2019s due process rights when it \u201cskipped Starr\u2019s failure-to-investigate claim\u2026[and] deprived Starr of the opportunity to establish that she has actually suffered a concussion and that the concussion had impacted her culpability\u2026.\u201d Id.<\/em><\/p>\n This case breathes new life into the word \u201ccompetency.\u201d A lawyer clearly has an ethical obligation to investigate his or her client\u2019s brain-injury history and pursue all possible defenses.<\/p>\n As evidenced by the recent cases like Clemons and others<\/a>, lawyers are taking this ethic seriously.<\/p>\n