Will CTE = NGRI?

The tragedy that is unfolding in courtroom 530 in Middlesex County Superior Court in the case of Commonwealth v. Nathanial Fujita, No. MICR2011-00761 is profound, deep, and heart-achingly sad. On the one hand you have the brutal, senseless murder and irreversible loss of beautiful and vibrant 18 year-old Lauren Astley, allegedly by strangulation and throat-cutting, as well as the pain and anguish of her devoted parents who will never see or embrace their beloved daughter again. On the other, you have her ex-boyfriend and once Trinity College-bound football recruit with a promising future, 20 year-old Nathanial Fujita, as well as his devastated parents, all confronting the likely prospect of him spending the rest of his natural life behind bars, much of which will be in a 6×8 jail cell in a maximum security prison. At the intersection of both, you have the long-shot affirmative defense of Insanity in which the defendant is claiming he lacked criminal responsibility for his conduct as a result of mental disease or defect.

As most seasoned criminal defense attorneys and court-watchers know, "not guilty by reason of insanity" (NGRI) verdicts are few and far between, owing to a variety of factors including skeptical juries, inexact sciences, the defendant all-but conceding he committed an often brutal and horrific crime, and a general fear that NGRI verdicts might literally mean "the defendant has gotten away with murder."  While Fujita may well play out in the end no differently than most other insanity cases, it is well worth watching in terms of its novel reliance on the symptomology of Chronic Traumatic Encephalopathy (CTE), a traumatic brain injury often associated with repeated blows to the head sustained from auto accidents, violent collisions, and concussion-prone contact sports like boxing, football, and ice hockey, to establish lack of criminal responsibility.  Fujita, an accomplished high school player who had purportedly played football since the age of 11, reported to his  forensic psychiatrist numerous blows to the head, some of which, "where everything turned white".

According to neurologists, Stage II symptoms of CTE include depression, explosive temper, problems with impulse control, irrational thinking, and short-term memory issues.  Stage III can include cognitive dysfunction and impaired judgment. Dementia can occur at Stage IV. According to Fujita’s forensic psychiatric expert, CTE can result in "the sort of [psychotic] break from reality" he says Fujita was experiencing at the time of the murder. Aside from the normal risks associated with presenting any insanity defense, a specific problem with this particular defense is that evidence of CTE impairment remains somewhat anecdotal and a suspected diagnosis of the same can only be confirmed by brain biopsy or autopsy, after the patient is dead.

Nonetheless, with the high profile deaths of well-know athletes such as former Chicago Bear Dave Duerson ,  San Diego Charger/Linebacker Junior Seau, Pittsburgh Steeler Mike Webster, NHL tough-guy enforcers, Derek Boogard, Rick Rypien, and Wade Belak, professional wrestler Chris Benoit, and U Penn lineman Owen Thomas which were often preceded by bizarre, irrational, and sometimes violent behaviors, what was once considered anecdotal is rapidly becoming scientific. Perhaps lesser-known, but certainly more cogent to Fujita, is the 2010 death of then 17 year-old Nathan Stiles, who died hours after taking a head trauma inducing hit during his high school homecoming football game.  His post-mortem diagnosis as the youngest known person with CTE certainly lends credence to at least the possibility of Fujita’s claim.

In short, indisputable evidence of the likely effects of CTE is mounting. Because my experience has been that medical proof of organic brain impairment or injury resonates more strongly with juries than subjective scoring and analysis of psychological test results, CTE may well present the type of hard scientific evidence cynical jurors may be looking for in insanity cases. Moreover, in an ALI Model Penal Code State like Massachusetts where the standard for lack of criminal responsibility offers a two alternative-pronged analysis where "a person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease of defect, he lacks substantial capacity to either appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law" [italics added], lay-person jurors may be better able to get their heads-around the second (irresistible/uncontrollable impulse) prong when considering CTE impairment than they can with the much more subjective and harder to define cognitive (failure to appreciate) prong.

In other words, as scientific and medical data and awareness about the consequences of CTE increases, so will the number of CTE-based insanity cases. The evidence in Fujita is fast coming to a conclusion and his case will soon be decided by discussion and deliberation (and remember, should Fujita, in fact, result in a rare NGRI verdict, the Court’s inevitable follow-up finding of "dangerousness" as result of his mental disease or condition will result in his indefinite confinement at Bridgewater State Hospital, likely for many years to come). By contrast, the "case" being made for the effects of CTE is just starting, with years of research and study still needed before experts can provide definitive conclusions to the requisite degree of scientific and medical certainty necessary to aid juries asked to consider complex and difficult issues like criminal responsibility.