Roger writing the LAWmag
22
Jul 2013

Killer By Design?

Welcome to technology meets law, 2013.

The history of law is pot-marked with craters, significant changes foisted on the most conservative part of government (the justice system) and brought on by emerging technologies - the development of the fingerprint and, later, photography; and now, cell phone and video camera evidence, etc. etc.

Also this, the murder gene, aka the rage gene, the warrior gene or, to scientists, a variant of the monoamine oxidase A (MAOA) gene.

Waldroup

Davis Bradley Waldroup Jr. lived in a trailer home in Greasy Creek, Tennessee, where the police were summoned on October 13, 2006. Next to the parked truck which belonged to Waldroup, lay a bloody machete and inside the trailer home, there was blood everywhere.

There was also the mutilated body of Ms Leslie Bradshaw. The facts are horrible and need not be repeated here1 except to say that it was one of those cases that as it was committed in a death penalty jurisdiction, would normally lead straight to death row and, in Tennessee, lethal injection. Another feature of the facts, Waldroup did not lose his temper with a machete: he walked through his crime (with children present) with method and thought and was only stopped when a police car miraculously entered his driveway and in the distraction, another victim managed to escape his grasp.

DNA RogerJudge Carroll Ross of Athens, Tennessee drew State v Waldroup. He allowed evidence from a psychiatrist who then introduced the results of genetic testing of the defendant, to the effect that he had something often called the murder gene, a genetic sequence in certain individuals that apparently predispose them to reacting both violently and disproportionately, including going berserk with a machete.

The so-called murder gene is not a scientific term but is one that is used by the media to describe a genetic phenomena also known as the warrior gene presumably because having this gene would make an individual an optimal warrior, having the ability to go berserk with violence in the field of battle.

In an interview he later gave, the defence's expert, Dr. William Bernet, said that he took a blood sample from the defendant and brought it to Vanderbilt University's DNA lab, known as the Molecular Genetics Laboratory, where the doctor was a well-known researcher. Bernet matched Waldroup's DNA with the murder gene - a MAOA variant - and found a match:

"Bernet cited scientific studies over the past decade that found that the combination of the high-risk gene and child abuse increases one's chances of being convicted of a violent offense by more than 400%."

It Worked

It worked. The jury found that Waldroup was pre-disposed to going berserk with a machete, and for that, the charge was reduced from murder to manslaughter. This allowed the defendant to avoid the death penalty; that the action on that day at the trailer park had not been premeditated, but represented actions really unstoppable by the presence of the murder gene within the defendant.

One juror explained:

"Evidence of this gene-environment combination in Waldroup's background also proved pivotal to jurors declining to sentence Waldroup to death.  As one juror characterized some of the jury's deliberations, 'There was more to (Waldroup's) whole life that led to that moment (of killing).' When asked if her assessment took into account Waldroup's genetics, (the juror) responded, 'Oh I'm sure. And his background - nature vs. nurture.'"2

Waldroup is now eligible for parole in 2026, when he will be 52 years old, murder gene and all.

Now What?

One can just imagine how this would go down with the crowd at Starbucks, Waldroup's jury excluded. After committing a murder under other circumstances,  a murder gene individual would receive a credit in law in either a reduction in the charge against her or him, or in the sentence? This, because of an invisible little feature of their person, a so-called genetic predisposition to going berserk or resorting to disproportionate violence.

But oddly enough, while capital offence defense lawyers around the world seek to have their clients tested and will everywhere push this issue to the forefront, that is not likely the area where the scientific novelty will receive the most amount of attention. That will come when prosecutors, faced with circumstantial evidence of a crime or the possibility of other perpetrators, will want to perfect their evidence with a blood sample or saliva swab from the most likely defendant to see if they have the so-called murder gene. Or what if the government announced a murder gene collection database?

Once that starts happening, the civil libertarians will raise this issue like no one else can.

And there could be other ripple-down research such the proposition of a "I am a really, really nice person and I could not possibly commit a crime" gene. Now that would come in handy for defense counsel with clients with lesser crimes.

We will see a justice system initially resist this kind of DNA technology and then by sheer attrition, commence a period of acceptance after which the technology of genetics and predisposing genes will become another chapter in the criminal law handbook, but a potentially long one, and one which may change the field forever.

For better or for worse as to the delivery of justice may depend on the observor's perspective. For one, Ms Leslie Bradshaw is not around to ask.

Better the devil you know? How about the words adopted by an ex-district attorney:

"Precisely how the electrical signals and chemical reactions occurring second by second in the human body make the leap to thought, motivation, impulse—where the physical machinery of man stops and the ghost in the machine, consciousness, begins—is not truly a scientific question, for the simple reason that we cannot design an experiment to capture, measure or duplicate it.

"For all we have learned, the fact remains that we do not understand in any meaningful way why people do what they do, and likely never will."3

REFERENCES:

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