john jerry glas deutsch, kerrigan & stiles, l.l.p. new orleans, louisiana

John Jerry GlasDeutsch, Kerrigan & Stiles, L.L.P.

New Orleans, Louisiana

Irresistible Impulses & Disinhibition:Siren Songs In Civil Cases

Traumatic Brain Injuries

CENTERS FOR DISEASE CONTROL AND PREVENTION http://www.cdc.gov/traumaticbraininjury/statistics.html

Scrutiny After TBI

Reduced Self-Control

No Control Over Impulse

(Disinhibition)

Range

(Irresistible Impulse)

Methodology

Irresistible

Not Resisted

Attack Methodology

“The line between an irresistible impulse and an impulse not resisted is probably no sharper than between twilight and dusk.”

U.S. v. Lyons, 731 F.2d 243, 248 (C.A. 5 (La) 1984), quoting American Psychiatric Association Statement On The Insanity Defense, 11 (1982) [APA Statement.

Types Of Impulses

Irresistible

Not Resisted

(involuntary conduct)

(voluntary conduct)

Accountability

Not Culpable

Culpable


(voluntary conduct)

Effect Of Injury

Unable To Resist

Harder To Resist


(voluntary conduct)

Effect Of Injury ?

Zero-Sum Game

Blame The Brain

Blame The Person


(voluntary conduct)

Need For Supervision

“... I can tell you that [plaintiff] is going to break those laws that will put him in some kind of facility within a very short time if he lived independently by himself. . .

I don’t think it’s his cognitive skills that are the problem. I don’t think it’s his memory. . . I think it’s his impulsivity and his lack of self-control and his judgment that are damning him.”

Deposition of Beth Salcedo, MA, SLP, CCC, 6/10/09, p. 132, line 18 et seq

Limit Area & Severity of Brain Injury

Strategy

Rule Out Diffuse Axonal Injury

Limit Lobes Involved

Frontal Lobe

Parietal Lobe

Occipital Lobe

Temporal Lobe

Cerebellum

Limit Functional Regions Of Lobes

Involved

Primary Motor

Premotor Area

Frontal Eye Fields

Dorsolateral Prefrontal Cortex

(& Others)

Frontal Subcortical Circuits

Motor

Oculomotor

Dorsolateral Prefrontal

Anterior Cingulated Orbitofrontal

Severity Of Injury

Brain Herniation

Midline Shift

Mass Effect

Edema

Hematoma


Establish Retained Cognitive Skills

Strategy

Executive Cognitive Function

Behavioral/Emotional Function

Activation Regulation

Meta-Cognitive Processes

Frontal Lobe Functions

Memory

Language

Initiation

Judgment

Impulse Control

Social & Sexual Behavior

Motor Function

Problem Solving

Frontal Lobe Functions



Identify Mechanism & Underlying Disorder

Strategy

Mania

Bipolar Disorder

Frontal Lobe Dementia

Impulse Control Disorder

Disinhibition Syndrome

Organic Personality Disorder

Post-Traumatic Stress Disorder

Disorders

Irresistible Impulses

“There may be an unseen ligament pressing on the mind, drawing it to consequences which it sees, but cannot avoid, and placing it under a coercion, which, while its results are clearly perceived, is incapable of resistance.”

Commonwealth v. Mosler, 6 Pa. L.J. 90, 4 Pa. 264 (Pa. 1846)(per curiam)

Insanity Defense

M’Naghten TestModel Penal Code

17

14

Moral Incapacity 10

M’Naghten + VolitionProduct Mental Illness

3

1

Cognitive Incapacity 1

Clark v. Arizona, 548 U.S. 735, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006)

Model Penal Code Test

American Law Institute Model Penal Code Test (1964)

"a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."




Establish Cognition

Agenda

What is plaintiff’s I.Q.?

Establish Cognition


Was plaintiff under influence of drugs, ETOH, meds?

Establish Cognition

Disinhibition



Does plaintiff recall his behavior?

Establish Cognition

Wild Beast Test

•

Children

Wild Beasts

“a mad man . . . must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than a brute, or a wild beast, such a one is never the object of punishment."

Judge Tracy, Rex v. Arnold, 1724




Did plaintiff understand physical act & consequences?

Establish Cognition





Could plaintiff distinguish between right & wrong?

Establish Cognition

Right & Wrong Test

•

Judge, Bellingham Case1812

“had sufficient understanding to distinguish good from evil, right from wrong.”






Did plaintiff know “nature and quality” of the act?

Establish Cognition







Did plaintiff know behavior was illegal?

Establish Cognition








Did plaintiff believe behavior was immoral?

Establish Cognition









Did plaintiff feel guilty?

Establish Cognition









Did plaintiff feel guilty?

Did plaintiff plead guilty?

Establish Cognition




Establish Cognition

Attack Volition

Agenda

Did plaintiff physically lose control over extremities?

Attack Volition


Did plaintiff plan or organize before (premeditated)?

Attack Volition



Was behavior self-endangering or self-defeating?

Attack Volition




Would plaintiff have waited if an officer was there?

Attack Volition

Wife At Elbow Test

Dr. Thompson. . . in your opinion, if [the doctor’s wife] had walked into the garage. . . before [the doctor] had started to make preparations to commit suicide, do you think [the doctor] would have waited for her to leave before committing suicide?

I think he’d likely would have waited for her to leave.

And why is that, Doctor?

Because I think he would not have wanted to commit suicide in front of her.

Q.

Q.

Deposition of Dr. Thompson, p. 28, line 19 et seq.

A.

A.




Would plaintiff have waited if an officer was there?

Did plaintiff lose all ability to control behavior?

Attack Volition

Ability To Control

People say that he does demonstrate the ability at times to remove himself from a situation that could escalate, calm down, and then return. . .

I have observed that. . .

That’s a social skill or a social pragmatic that he does possess?

He posses it. He doesn’t always use it, but he possesses it.

Q.

Deposition of Beth Salcedo, SLP-CCC, 6/10/09, p. 167, lines 10-19

A.

Q.

A.




Would plaintiff have waited if officer there?


How much disinhibition is required for the behavior?

Attack Volition




Would plaintiff have waited if officer there?


How much disinhibition is required for the behavior?

How did you determine the impulse was irresistible?

Attack Volition

“There is, in short, no objective basis for distinguishing between offenders who were undeterrable and those who were merely undeterred, between the impulse that was irresistible and the impulse not resisted, or between substantial impairment of capacity and some lesser impairment.”

U.S. v. Lyons, 731 F.2d 243, 248 (C.A. 5 (La) 1984), quoting Bonnie, Moral Basis Of The Insanity Defense,

69 ABA J. 194, 196 (1983)

Attack Methodology

Attack Methodology

U.S. v. Lyons, 731 F.2d 243, 249 (C.A. 5 (La) 1984).

“One need not disbelieve in the existence of Angels in order to conclude that the present state of our knowledge regarding them is not such as to support confident conclusions about how many can dance on the head of a pin.

In like vein, it may be that some day tools will be discovered with which reliable conclusions about human volition can be fashioned. It appears to be all but a certainty, however, that despite earlier hopes they do not lie in our hands today.

john jerry glas deutsch, kerrigan & stiles, l.l.p. new orleans, louisiana

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