Brain-testing technique on trial in court

The squiggly lines long have been used to help diagnose learning disabilities and dementia. Defense attorneys now want to use the brain-mapping technique to save clients' lives.

First admitted in a Florida criminal courtroom last year, Quantitative EEG, or QEEG, testing is a hot-button issue in death penalty cases.

Backers maintain that QEEGs could become this century's forensic equivalent of DNA, an emerging technology that will help guide judges and jurors in determining whether a defendant has brain damage.

"This is not a magic pill," says William A. Lambos, a psychologist who has administered the test to a dozen local inmates facing the death penalty. "The jury is given information they might not normally have, and it should help it make an informed decision on how a sentence should be decided."

Detractors question its validity, saying the technique hasn't undergone the rigorous scientific scrutiny needed before becoming legally acceptable.

"The purpose of any test in courts is making an association, and in that sense this technique is useless," says Gabriel Alejandro De Erausquin, a professor of neurology, neurosurgery and psychiatry at the University of South Florida. "It doesn't tell you anything about any particular person committing a particular act."

Judges throughout the state have been asked to admit the test in sentencing hearings in capital cases since a Miami jurist allowed it in the trial of Grady Nelson, convicted of stabbing his wife 61 times and then raping and stabbing her 11-year-old mentally disabled daughter in 2005.

A jury convicted Nelson in July 2010. His attorneys asked to use QEEG results at his sentencing hearing and a judge complied, believed to be the first time the results were used in a major criminal case. In December, the jury split 6-6 on sentencing, resulting in an automatic life sentence. Jurors deliberated for about an hour. In interviews, jurors also split on the impact of the QEEG testimony.

The state is appealing the judge's decision.

Just after that ruling, Lambos was contacted by the Hillsborough County Public Defenders Office. Public Defender Julie Holt said she couldn't comment on pending cases.

Lambos wouldn't identify his clients.

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Holt's office wants to use the brain-mapping tests in the cases of Humberto Delgado, accused of shooting to death Tampa Police Cpl. Mike Roberts in August 2009; Richard McTear Jr., accused of throwing his girlfriend's 3-month-old son from a moving car onto Interstate 275 in May 2009; and Kenneth Ray Jackson, charged with raping, killing and torching a Seffner woman in September 2007.

Robert Batey, a criminal law professor at Stetson University College of Law, says defense attorneys naturally are going to seek permission to admit results of the test in court.

"You are going to try everything you can," Batey says. "It is part of the ethical responsibility of a defense attorney in any case and particularly in a death penalty case."

But it is up to a judge to determine whether particular scientific evidence can be admitted.

The brain-mapping debate is playing out before Hillsborough Circuit Judge Emmett Lamar Battles, who is considering whether to allow jurors to hear about it in Delgado's trial.

Delgado's attorneys are pushing to have it admitted should there be a sentencing hearing in the case; prosecutors are arguing to keep it out.

Battles heard a day's worth of testimony Friday and will hear from more witnesses Monday.

It will be next year before a judge decides whether the technique can be used in trials of McTear and Jackson.

Batey says judges have to take care in dealing with scientific evidence.

"Jurors are swayed by the aura of science," he says.

Visual evidence can be persuasive.

"The more input you can give a juror, the more likely you are to get your message across," he says. "You want to hear evidence, but you also want to see it."

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QEEGs visually depict what doctors and psychologists long have testified about, Lambos says.

"It is something that is clearly obvious to a jury," Lambos says. "It shows which parts of the brain are acting like normal or appear damaged."

Sensors are placed on the scalp as electric current is passed through it, recording the fluctuations as waves. That information then is fed into a computer, where it is converted to numbers and compared with a database of neurotypical, or normal, scans.

"We use the brain map as a functional picture of the brain. It is more sensitive than an MRI," Lambos says.

But De Erausquin said too many factors can affect the test: whether the subject moves, blinks or hears a noise, or variations in the placement or pressure of the sensors on the scalp.

"It has to be taken with a grain of salt," he says. "It is less precise than it seems."

De Erausquin says standards for the tests and interpreting the results in a courtroom situation have not been established, nor has its error rate. He also questions the databases being used to generate the visual depictions.

"I think it's a mistake," De Erausquin says of courtroom use of QEEGs. "The key issue in using any particular evidence is whether the results make it more or less likely for someone to commit a particular act, and, scientifically, that is difficult to do."

However, De Erausquin says QEEGs are a useful technique to be used with others in analyzing a person's brain.

"A diagnosis almost is never done by a single means," he says.

Lambos, co-owner of CNS-Wellness, uses QEEG to guide his nonmedication treatment of various disorders. He said the legal use of the testing is only a sideline.

"It wasn't invented for forensic reasons, but it is an application of technology that fits in nicely with what we do," he says.

Lambos says QEEG needs to be used in conjunction with other diagnostic tools.

"When they all point in the same direction, we know there is something there," he says.

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Lambos says his equipment is portable and thus is suitable for testing jail inmates. He intentionally knows nothing about a person before testing them, he says.

"I'm simply looking at the data and determining what is consistent with or not consistent with" normal brain mapping results, he says. "The computer puts data on a page; a human being still has to interpret it."

Lambos says the initial forensic assessment costs about $2,500. The private nonlegal uses are much less expensive.

Batey says the piecemeal approach is typically how courts deal with new technology. "Someone has to be the first," he says.

Judges generally are wary of new technology because of the uncertainty of how it might sway jurors, Batey says.

He compares the use of QEEGs with that of CAT scans, first used in the trial of John Hinckley Jr. in the attempted assassination of President Ronald Reagan. It was admitted to show the possibility that Hinckley had schizophrenia. He was found not guilty by reason of insanity, and jurors later acknowledged the scan played a role in their decision.

"This is just the early skirmishes in the battle of the acceptability of QEEGs," Batey says. "We won't know the results for several years and several appellate court rulings."

Lambos has no doubt QEEGs eventually will be universally accepted.

"Brain function is brain function," he says. The QEEG maps "are very definitive; they show damage that is readily apparent."

De Erausquin understands Lambos' and others' zeal for the tests.

"They have a tool they are convinced can do what they say it can do and are trying to get the use of that tool expanded," he says. "It is an obtainable goal, but we are not there yet."

Lambos says the technique could change the legal system. Lawyers already are contacting him about the technique's applicability in civil cases, he says.

"The phone rings every week," Lambos says. "All these attorneys talk to each other."