Why the Next Civil Rights Battle Will Be Over the Mind

Guest essay by Clive Thompson*

Trolling down the street in Manhattan, I suddenly hear a woman's voice.

"Who's there? Who's there?" she whispers. I look around but can't figure out where it's coming from. It seems to emanate from inside my skull.

Was I going nuts? Nope. I had simply encountered a new advertising medium: hypersonic sound. It broadcasts audio in a focused beam, so that only a person standing directly in its path hears the message. In this case, the cable channel A&E was using the technology to promote a show about, naturally, the paranormal.

I'm a geek, so my first reaction was, "Cool!" But it also felt creepy.

We think of our brains as the ultimate private sanctuary, a zone where other people can't intrude without our knowledge or permission. But its boundaries are gradually eroding. Hypersonic sound is just a portent of what's coming, one of a host of emerging technologies aimed at tapping into our heads. These tools raise a fascinating, and queasy, new ethical question: Do we have a right to "mental privacy"?

"We're going to be facing this question more and more, and nobody is really ready for it," says Paul Root Wolpe, a bioethicist and board member of the nonprofit Center for Cognitive Liberty and Ethics. "If the skull is not an absolute domain of privacy, there are no privacy domains left." He argues that the big personal liberty issues of the 21st century will all be in our heads - the "civil rights of the mind," he calls it.

It's true that most of this technology is still gestational. But the early experiments are compelling: Some researchers say that fMRI brain scans can detect surprisingly specific mental acts - like whether you're entertaining racist thoughts, doing arithmetic, reading, or recognizing something. Entrepreneurs are already pushing dubious forms of the tech into the marketplace: You can now hire a firm, No Lie MRI, to conduct a "truth verification" scan if you're trying to prove you're on the level. Give it 10 years, ethicists say, and brain tools will be used regularly - sometimes responsibly, often shoddily.

Both situations scare civil libertarians. What happens when the government starts using brain scans in criminal investigations - to figure out if, say, a suspect is lying about a terrorist plot? Will the Fifth Amendment protect you from self-incrimination by your own brain? Think about your workplace, too: Your boss can already demand that you pee in a cup. Should she also be allowed to stick your head in an MRI tube as part of your performance review?

But this isn't just about reading minds; it's also about bombarding them with messages or tweaking their chemistry. Transcranial magnetic stimulation - now used to treat epilepsy - has shown that it can artificially generate states of empathy and euphoria. And you've probably heard of propranolol, a drug that can help erase traumatic memories.

Let's say you've been assaulted and you want to take propranolol to delete the memory. The state needs that memory to prosecute the assailant. Can it prevent you from taking the drug? "To a certain extent, memories are societal properties," says Adam Kolber, a visiting professor at Princeton. "Society has always made claims on your memory, such as subpoenaing you." Or what if you use transcranial stimulation to increase your empathy. Would you be required to disclose that? Could a judge throw you off a jury? Could the Army turn you away?

I'd love to give you answers. But the truth is no one knows. Privacy rights vary from state to state, and it's unclear how, or even if, the protections would apply to mental sanctity. "We really need to articulate a moral code that governs all this," warns Arthur Caplan, a University of Pennsylvania bioethicist.

The good news is that scholars are holding conferences to hash out legal positions. But we'll need a broad public debate about it, too. Civil liberties thrive only when the public demands them - and understands they're at risk. That means we need to stop seeing this stuff as science fiction and start thinking about how we'll react to it. Otherwise, we could all lose our minds.

*Reprinted with the written permission of the author from Wired magazine. Clive Thompson writes about science, technology, and culture for the New York Times Magazine, Wired, Discover, and others. Find out more about him at his blog, Collision Detection.

Prominent expert testifies about juror bias

In the United States, African Americans are strongly associated with criminality. Research is accumulating to suggest that this largely unconscious association has a profound effect on criminal justice policies and practices, including jury decision-making.

A few months ago, I posted about research showing that making jurors aware of unconscious bias can increase their open-mindedness and thoughtfulness during deliberations. Now, attorneys in a New Hampshire death penalty case are going a step further, calling one of the nation's best-known social psychologists to testify about unconscious prejudice against African Americans.

Mahzarin R. Banaji, a brilliant and elegant speaker, testified for the first time in her life yesterday at a pretrial hearing for Michael Addison, a black man charged in the killing of white police officer Michael Briggs. Banaji, an authority on the well-known Implicit Association Test, testified as though giving one of her lectures to Harvard psychology students, standing in the witness box and using a laser pointer to highlight her data.

The question on the judge's mind is whether a Black defendant can get a fair trial in New Hampshire, given the state's largely white population.

Banaji's answer: "The likelihood of a fair trial here is abysmally low based on social science."

Defense attorneys are hoping the judge accepts Banaji's evidence and strikes the death penalty against Addison, whose trial is set to start this fall.

But using the Implicit Association Test as evidence of racial bias is controversial, with critics charging that there is insufficient research into the test's accuracy or precisely what it measures. The point-counterpoint controversy is featured in today's Chronicle of Higher Education (unfortunately, I think the article is available only via subscription).

Whatever the outcome of this week's hearing, the topic of unconscious racial animus will likely get more play in court in upcoming months and years. Indeed, scholars associated with a new MacArthur Foundation-funded project on law and neuroscience are looking into doing some proactive training, to teach jurors how bias works and how to counter it in their deliberations.

The Concord Monitor has coverage of the Addison case. TV station WMUR-9 in New Hampshire has a series of online videos of court hearings. Stanford scholar Jennifer Eberhardt's research on race and crime is available here. The Implicit Association Test can be taken online. See my related posts, here and here, or browse through my "race" or "juries" topics, for more information and links.

Statements during insanity evaluation: Admissible?

Can the state introduce at trial incriminating statements made by a defendant during a court-ordered insanity evaluation?

That is one of several intriguing evidentiary issues in the case of Naveed Haq, whose trial gets underway today in a Seattle courtroom.

Haq has pleaded not guilty by reason of insanity (NGI) to multiple charges stemming from a shooting rampage last year at the Jewish Federation of Greater Seattle that left one woman dead and five other people wounded.

Defense attorneys argue that any self-incriminating statements made by Haq to psychologists and psychiatrists should be excluded from evidence, because the evaluations were court-ordered and Haq could not invoke his Fifth Amendment right to silence.

Senior Deputy Prosecuting Attorney Don Raz retorted that "to slice and dice" what information his expert witness can rely on goes against "proper methodology" and is "an affront to good forensic psychology."

This is a thorny issue and one worthy of contemplation by forensic psychologists and psychiatrists. The reigning text in our field, Gary Melton and colleagues' Psychological Evaluations for the Courts, suggests that experts should be "circumspect" in relying upon statements of defendants, especially defendants' statements to police, and should initially refuse to even consider third-party information that is known to be inadmissible so as not to contaminate our opinions. Parsing out specific statements made during a clinical evaluation is probably trickier, but certainly not impossible.

Judge Paris Kallas deferred ruling on the matter pending further contemplation. It will be interesting to see how she decides to balance Haq's rights against self-incrimination with the state’s right to challenge the insanity defense.

Haq's lengthy history of bipolar disorder is not disputed; indeed, it was a basis of the prosecution's decision to drop the death penalty. What is at issue is the severity of his illness, and whether his mental state at the time of the crime met Washington's legal standard for insanity, the M'Naghten test, which requires that a defendant be unable to tell the difference between right and wrong. (For more detail on the standard in Washington, see the 2003 appellate opinion in Washington v. Applin.)

Defense lawyers say Haq was delusional at the time of the murders. The prosecution contends that his careful planning belies psychosis. Insanity verdicts are notoriously difficult to obtain, in part because many people driven by persecutory delusions appear superficially rational and are capable of carrying out complex plans in furtherance of their delusionally based goals.

The judge denied a motion by defense attorneys to place the burden on the prosecution to prove that Haq was sane at the time of the rampage. Although the judge observed that Washington's higher courts had "not squarely resolved" this issue, prosecutors argued that a century of state law established that the burden was on the defense to prove insanity. (States handle this issue differently, with about one-third of states putting the burden on the prosecution to prove sanity beyond a reasonable doubt.)

In another evidentiary issue, the judge ruled last week that Haq's videotaped statement to police could not be introduced at his trial, because police ignored not just one but at least six requests for an attorney.

The Seattle Times has ongoing coverage; Wikipedia has additional background on the case.

Fictional confession proves man's undoing

Sensational case mesmerizes Poland

"The perfect crime" is how the Polish media dubbed the unsolved case.

The hog-tied body was found floating in a remote inlet of the Oder River in 2000. Before death, Dariusz Janiszewski was tortured and starved, suggesting he was killed by someone who bore him enmity.

But who would have killed the happily married, good looking, and well liked young advertising executive, an amateur guitarist who enjoyed Led Zeppelin and wore his blond hair long and flowing? Police were unable to locate any suspects, and the case went cold.

Perhaps, as in Edgar Allen Poe's The Tell-Tale Heart, the killer could still hear the beating of the dead man's heart. Or maybe his overconfidence did him in. Maybe it was neither guilt nor overconfidence, but simply the temerity of Jacek Wroblewski (dubbed "Jack Sparrow" by his colleagues), the new detective assigned to the cold case.

Sifting through the case file three years later, the detective decided to trace the whereabouts of the dead man's cell phone. He found that a few days after Janiszewski’s death, "ChrisB[7]" had sold the phone on an Internet auction site. ChrisB[7], as it turned out, was Krystian Bala, a postmodernist intellectual featured in the documentary "Young Money" about Poland's nouveau capitalist class.

That link would not have been enough to convict. But Bala had written a creepy novel called "Amok" that contained startling similarities to the killing. The novel’s protagonist, a postmodernist intellectual named Chris, kills his lover and then sells the murder weapon on the Internet.

Detective Wroblewski pored over Bala's sleazy tract for clues until he had it practically memorized, even hiring a psychologist to analyze the author's personality. Further digging unearthed a direct but hidden connection between Bala and his victim: Janiszewski and Bala's wife had a brief extramarital affair some months before the murder.

Was it guilt, revelry, or a desire for attention that drove Bala to write about his crime?

Gisli Gudjonsson, the internationally known confessions expert and forensic psychologist whom I've previously blogged about, says it is rare for people to be able to keep a horrendous crime totally secret. People, even the most depraved, are social animals.

And Bala, by all accounts, was overconfident. Two psychologists who evaluated him after his arrest reported that he had a high IQ, extreme narcissism, and sadistic tendencies. A lethal combination for his victim and a dangerous one for him, too, in that his constant need to demonstrate his superiority led to anonymous boasts to police and the Polish media of his "perfect crime."

Bala's reported psychological makeup is similar to what psychologist Del Paulhus likes to call the "Dark Triad," a combination of narcissism, psychopathy, and Machiavellianism. Using rather circular reasoning, author Marilee Strong argues in her new book Erased (which I review here) that the triad explains a specific type of cold-blooded, premeditated wife killer, Scott Peterson being the exemplar. (Hans Reiser, currently on trial in Oakland, is potentially another example; I plan to say more about him after the jury verdict.) I say circular, because applying the labels of narcissist, psychopath, and Machiavellian provides little in the way of explanation, nor are these theoretical constructs independent of each other.

Another way to look at these types of killings is to see them as a blending of instrumental and expressive motivations. Instrumental violence is theorized to underlie more rational, goal-oriented killings, such as the murder of a rape or a robbery victim in order to eliminate a witness, or killings that occur during warfare or organized crime disputes. Expressive violence is driven by emotion and is typically impulsive and unplanned.

Bala's motive was jealous rage, but his cunning and intelligence enabled him to harness his rage in order to plot and execute a more chilling murder. (Check out the recent San Francisco killing of Leonard Hoskins for what could turn out to be a similar blending of instrumental and expressive violence.)

But even more essential to these types of killings than cold-blooded cunning is a chilling level of entitlement. These types of killers, mainly relatively privileged white men, seem to believe that they have the unalienable right to permanently dispose of others who become inconvenient to them. One of the few nonwhite wife killers in Strong's book, for example, is a star football player; as catalogued in recent books on sexual violence in competitive sports, these cultural icons take entitlement to a whole higher plane.

What proved Bala's undoing was his arrogant horn tooting. Amok, described as "a pulp-fiction orgy of bestiality, pornographic Oedipal complexes and indiscriminate sexual violence," went on to become a star witness against him at his trial last year. Simultaneously, the book surged from obscurity to bestseller status as the Polish public lapped up every detail in the most sensational trial in the nation's history.

Although Bala was convicted of murder and sentenced to 25 years in prison, his conviction has been overturned and a retrial is expected to get underway soon.

For a lengthy essay on the Bala case, see David Grann's "Letter from Poland" in the New Yorker. News coverage is here and here; literary commentary is here. BBC has an interesting article here on cases of voluntary confession. Photo credit: valobstruction's "SUV parked in a loading zone" (Creative Commons license).

Sex offender sues over firing

A convicted rapist fired from his job at a McDonald's after a woman told management he was a registered sex offender is suing the restaurant's owner and the woman, claiming information about him on the state's Sex Offender Registry Board was misused.

"He's a shining example of someone doing everything he's supposed to do and still getting a raw deal at the end of the day," said the attorney for 50-year-old Scott Gagnon, who spent almost his entire adult life in prison for a series of rapes.

That's the lead in yesterday's Boston Globe; the full story is here. Pertinent commentary can be found at the Sex Crimes and Sex Offender Research blogs.

Does CSI Effect really lead to more acquittals?

Crime dramas saturate network television. Most focus on science and technology, blending reality and fiction to give viewers unrealistic beliefs about evidence in real-life cases. For the past few years, prosecutors have been lamenting this so-called CSI Effect, stating that jurors are making impossible demands for scientific evidence in order to convict.

But does the expectation of scientific evidence really translate into increased acquittals? And, if so, are viewers of TV crime shows more susceptible to this effect?

Those were the questions that a Michigan judge and two other researchers set out to answer, through a survey of more than 1,000 randomly selected jurors.

Judge Donald Shelton and colleagues found that almost half of the prospective jurors surveyed expected to see scientific evidence in every case, with 22 percent expecting DNA evidence – a highly unrealistic expectation. Not surprisingly, this expectation was stronger for regular viewers of CSI, who were also more likely to believe that their favorite TV crime dramas were realistic.

However, the jurors' expectations did not necessarily translate into an automatic tendency to acquit. Rather, jurors said they would only demand scientific evidence if the prosecutor did not call the victims or others as witnesses. In rape cases, however, CSI viewers were less likely than other jurors to say they would convict a suspect in the absence of DNA evidence (which often is not available in real-life sexual assault cases).

Increased expectations of law enforcement are not necessarily a bad thing, Judge Shelton argued in an essay published in this month’s National Institute of Justice journal (available online here). Perhaps, he wrote, police should make more of an effort to get the scientific evidence that the public seeks. And, when such evidence is not available, attorneys and judges need to learn how to explain this reality to the jury.

"Most importantly," wrote Shelton, who has written extensively on the impact of technology on the law, "prosecutors, defense lawyers, and judges should understand, anticipate, and address the fact that jurors enter the courtroom with a lot of information about the criminal justice system and the availability of scientific evidence."