With Sotomayor’s Elmore Dissent, Another Inroad for Neuroscience into Law

Roland Nadler

With the U.S. Supreme Court’s new term officially underway in October, the time has come for court-watchers to once again scrutinize the Justices’ every word for signs of impending developments in the law.  Myself, I’ve never had the confidence in my prognosticating ability to fill out a FantasyScotus bracket, fascinated though I am by the Court as an institution.  But to this autumnal flurry of tea-leaf reading I’ll just add one modest contribution: Justice Sotomayor’s dissent from the denial of certiorari in Elmore v. Holbrook tells us that some basic measure of neuroscientific literacy is going to become more of a necessity for criminal defense lawyers as time goes on.  Counsel who fail to inquire into their clients’ brains will increasingly run the risk that their legal assistance is later deemed ineffective.

In one sense, this is an easy prediction because it is already true.  Work by Nita Farahany and Ellen Koenig, among many others, tells us that neuroscience is — and should be — on the minds of attorneys who wish to avoid ending up on the wrong side of Strickland v. Washington.  All the same, seeing signs of this trend reaching the pages of the United States Reports feels like a significant step.

By way of summary: the petitioner in this case, Clark Elmore, spent much of his childhood and young adulthood being exposed to serious neurotoxins, including pesticides and Agent Orange.  By the time he was in his 20s, he was having clear difficulties functioning in society; a later series of tests would reveal that his capacity for “cognitive control,” that all-important function of the prefrontal cortex that exercises veto power over impulsive emotional behavior, was in the first (i.e. bottom) percentile.  The eventual capital crime he committed — the rape and murder of his stepdaughter, gut-wrenching in its details — struck experts as a clear manifestation of his organic brain damage.

For all Elmore’s penalty-phase jury knew, though, there was nothing unusual about him beyond the brutality of his crime.  Elmore’s lawyer put on only the most perfunctory mitigation case, and failed to address anything about neurotoxin exposure or cognitive deficits.  Interestingly, though, in reviewing Elmore’s challenge to his conviction, the Washington Supreme Court correctly observed that unquestionably, the defense “did investigate petitioner’s mental deficiencies.”  And indeed, Elmore’s counsel did consult with mental health professionals, who concluded that Elmore was neither insane nor a psychopath.

Perhaps this is why the U.S. Supreme Court declined to take up Elmore’s case; we’ll never know, since the denial of certiorari is accompanied by no explanation.  Justices Sotomayor and Ginsburg saw it otherwise, at any rate.  The problem, Sotomayor wrote, was that Elmore’s lawyer, ignoring the advice of more seasoned colleagues and other clear indicators about his client’s issues, failed to dig deeper.  The Strickland standard for measuring whether counsel’s assistance was effective may indeed allow for attorneys to make strategic choices that appear self-defeating in hindsight — but not even Strickland excuses an unreasonable failure to investigate with thoroughness, or at least something remotely resembling it.

If this were just a case of a lawyer failing to say, “hm, I wonder if I should look into some brain-based defense for my client,” it would not be all that new or interesting.  After all, Strickland itself involved a lawyer who failed to obtain a psychiatric evaluation; as is so often the case when discussing neuroethical issues in law or elsewhere, we can’t pretend that the relevance of the brain to our deployment of concepts like morality and agency is somehow new.  But this is something quite distinct: Justice Sotomayor finds fault with Elmore’s lawyer for failing to make the leap from psychiatric investigation to neuropsychiatric investigation.  The failure to test “for any sort of brain damage” was key; the conclusion that Elmore’s lack of diagnosable psychopathy foreclosed any viable brain-based defense was unreasonable.

It’s this detail, I think, that is a sign of the times for law and neuroscience.  Lawyers have needed to be conversant in 101-level psychology for decades.  But needing to make arguments about why a neurotoxin-pickled prefrontal cortex should sway a jury to view a heinous murder as the product of deficient cognitive control?  That’s a more novel skillset to demand.

We oughtn’t overstate the significance of “the Supreme Court” saying this — both because it wasn’t said by the Court, only by two dissenting Justices, and because the Court chose not to hear the case — so these words remain, despite their august author, just words.  At the same time, it now seems likelier that the day will come — and soon — when the Supreme Court actually does create a new high water-mark for neuroscientific literacy standards in the IAC context.  And the thing about high water-marks is they only ever do two things: stay the same, or creep on higher.

Roland Nadler is a former Fellow of the Center for Law and the Biosciences and is currently a law clerk to the Hon. D. Brock Hornby of the U.S. District Court for the District of Maine.  He offers this academic commentary, which represents solely his own views and not those of any judge, strictly in his personal capacity, and he expresses no view as to the merits of any proceeding currently pending in, or any issue likely to come before, the federal courts.