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REVISITING THE LEGAL LINK BETWEEN GENETICS AND CRIME DEBORAH W.

DENNO* I INTRODUCTION In 1994,

convicted murderer Stephen Mobley became a cause célèbre when he appealed his death sentence before the Georgia Supreme Court.1 According to Mobley’s counsel,

the trial court should have enabled Mobley to be tested for genetic deficiencies.

The counsel’s interest in genetics testing was prompted for unusual reasons: Mobley’s family history revealed generations of relatives with serious behavioral disorders.

Indications that Mobley shared a genetic propensity for misconduct could help explain some of his troubling tendencies and why he should not be executed.2 In a highly publicized decision,3 the Copyright © 2006 by Deborah W.

Denno This Article is also available at http://www.law.duke.edu/journals/lcp.

McGivney Professor of Law,

Fordham University School of Law ([email protected]).

This article resulted from a Duke University School of Law Symposium on The Impact of Behavioral Genetics on the Criminal Law.

The symposium was hosted by Law and Contemporary Problems and co-sponsored by The Institute of Genome Sciences and Policy’s Center for Genomics Ethics,

as well as by the American Bar Association’s Science and Technology Section.

I appreciate the suggestions and insights I received from the symposium’s participants,

as well as from my colleagues Marianna Gebhardt,

Peter Kougasian,

For comments on earlier versions of this article,

I thank participants in workshops at Arizona State University College of Law,

Fordham Law School,

New York Law School,

and the William and Mary Marshall-Wythe School of Law.

I am most grateful to Marianna Gebhardt for her superb research support and assistance in creating this article’s Appendix,

as well as to Marc Pane and Christina Newhard for their excellent production of Charts 1–3.

Thanks also go to Laurence Abraham,

Dale Baich,

Sean Farrell,

Juan Fernandez,

Janice Greer,

Gregory Kramer,

and Marc Pane for providing research materials,

and to Kathleen Ruggiero and Kim Holder for their work on Charts 1–3.

Fordham University School of Law gave generous funding for this project.

Mobley v.

State,

1995).

See generally Deborah W.

Denno,

Legal Implications of Genetics and Crime Research,

in GENETICS OF CRIMINAL AND ANTISOCIAL BEHAVIOUR 248,

The news media focused on detailing the behavioral disorders across generations of the Mobley family.

Carolyn Abraham,

DNA at 50: The First of a 3 Part Series,

The Bad Seed,

GLOBE & MAIL (Toronto),

March 1,

2003,

at F1 (“[Mobley’s lawyer] knew that arguing a genetic defect would never earn an acquittal.

No credible expert would testify that genes made Mr.

Mobley kill.

But if there was any evidence that bad behaviour ran in the Mobley family,

it might hold up at the sentencing as a mitigating factor.”)

Steve Connor,

Do Your Genes Make You a Criminal

INDEP.

ON SUN.

(London),

1995,

at 19 (“‘There is no legal defence to his crime,’ says .

Mobley’s attorney.

‘There is only the mitigating factor of his family history.

His actions may not have been a product of totally free will.’ Murder,

‘you name it,’ the Mobley family has had it,

Convicted Killer Seeks Brain Test,

TIMES (London),

1995,

aggression and anti-social behaviour

[Vol.

69:209

LAW AND CONTEMPORARY PROBLEMS

Georgia Supreme Court rejected that reasoning and affirmed the trial court’s holding,

explaining that the genetic theory involved in Mobley’s case “will not have reached a scientific stage of verifiable certainty in the near future and .

Mobley could not show that such a stage will ever be reached.”4 One year later,

Mobley’s family history evidence again became an issue.

This time,

new counsel representing Mobley filed a petition for writ of habeas corpus claiming Mobley’s trial counsel were inadequate for a range of reasons: failing to research sufficiently Mobley’s background for mitigating evidence,

neglecting to acquire funds so that a psychologist could provide expert testimony during Mobley’s sentencing phase,

wrongly declining an offer of financial assistance from Mobley’s father to support Mobley’s genetics testing and raising an “unorthodox mitigating defense that attempted to show a possible genetic basis for Mobley’s conduct.”5 The habeas court vacated Mobley’s death sentence on grounds that Mobley’s trial counsel were ineffective

the Georgia Supreme Court reversed and

dominate the family tree of Stephen Mobley .

Lawyers acting for Mobley asked a court to allow him to undergo neurological tests to determine whether he was suffering from an imbalance of brain chemicals that may have contributed to his behaviour.”)

Michelle Henery,

Killer Blamed His Family History,

TIMES (U.K.),

2002,

at 5 (According to Mobley’s counsel,

Mobley’s criminality derived from “four generations of Mobley men,” either successful or violent,

several substance abusers and Mobley’s father,

Kathryn Holmquist,

Nature,

Nurture,

the “Criminal Gene”—What Makes Men Violent

IRISH TIMES,

May 9,

1996,

at 12 (“After [Mobley] was sentenced to death,

They argued that he was not acting on the basis of ‘free will’ but due to a genetic predilection.

Virtually his entire family,

Minette Marrin,

Freedom Is a Better Bet than the Gene Genie,

TIMES (U.K.),

2002,

at 3G (“Generations of Mobleys,

starting with [Stephen’s] great-grandfather,

had been antisocial and violent,

and his lawyers tried to argue that he was hard-wired to be bad.”).

Various news accounts illustrated the degree of attention the Mobley case received.

Mike Pezzella,

Violence DNA Researchers Mum on Meeting,

Hoping to Avoid Protests,

BIOTECH.

NEWSWATCH,

1996,

at 14 (“The [Mobley] case became a minor landmark when Mobley’s .

attempted to get Georgia to pay for a DNA analysis of Mobley in order to obtain evidence based on four generations of violence and aggressive business behavior in his family.”)

Babs Brockway,

Mobley’s Death Sentence Is Upheld,

TIMES (Gainesville,

Ga.),

1995,

at 1 (“The [Mobley] case gained international attention when [Mobley’s lawyer] Summer contended his defense was hurt by Hall Superior Court Judge Andy Fuller’s refusal to approve $1,000 for the tests .

[which] could have shown that Mobley had a genetic predisposition toward violence.”)

Not by Our Genes Alone,

NEW SCI.,

1995,

at 3 (“Mobley’s case became headline news in Britain last week,

thanks to a scientific meeting on the links between genes and crime,

Kam Patel,

Adrian Raine & Steven Rose,

Perspective: An Inside Job Or A Set-Up

TIMES HIGHER EDUC.

SUPPLEMENT,

1995,

at 16 (“[W]hat appears to be pretty much an open and shut case—even Mobeley [sic] has never denied his guilt—has been catapulted on to the battlefield of a fierce worldwide debate.”)

Second Front: Genes In The Dock,

GUARDIAN (London),

1995,

at T2 (“Even if [the Georgia Supreme Court turns down Mobley’s appeal],

lawyers believe it is now no longer a case of whether genetic evidence will be allowed in court but when.”)

Connor,

supra note 2 (“[Mobley’s] last chance of reprieve rests with a plea from his lawyer that the murder was not the evil result of free will but the tragic consequence of a genetic predisposition.”)

Edward Felsenthal,

Legal Beat: Man’s Genes Made Him Kill,

His Lawyers Claim,

WALL ST.

1994,

at B1 (“The [Mobley] case seeks to break new legal ground by bringing into court a growing body of research linking genes and aggressive behavior.”).

Mobley,

Turpin v.

Mobley,

463 (Ga.

1998).

Winter/Spring 2006]

REVISITING THE LEGAL LINK

concluding counsel had been adequate.7 Likewise,

the Georgia Supreme Court denied reconsideration of the potential for testing Mobley for genetic deficiencies,

but for a somewhat different reason than it had expressed three years earlier.8 In the court’s view,

Mobley had in fact been “able to present the genetics theory” through a relative’s testimony about the family’s generations of behavioral problems

9 however,

even if the court had allowed genetics testing,

“there had been no showing that a geneticist would have offered additional significant evidence.”10 In March 2005,

Mobley was executed by lethal injection.11 Mobley’s request for genetics testing spawned an international debate on the political and scientific acceptance of genetics evidence in the criminal law.12 Near the time of Mobley’s 1994 appeal,

the Ciba Foundation13 sponsored a symposium in London on the Genetics of Criminal and Antisocial Behaviour.14 Because the symposium examined the legal implications of genetics and crime research15 and contributed to the publicity surrounding the Mobley case,16 the issues discussed at Ciba are significant to this article.17 The

see also infra notes 41–45 and accompanying text (discussing the testimony of Joyce Ann Mobley Childers).

Turpin,

Mark Davis,

Final Appeals Fail

Killer Mobley Dies,

ATLANTA J.

CONST.,

2005,

Mark Davis,

Mobley Dies for 1991 Murder

Supreme Court Denies Last Appeals Half-Hour Before Execution,

ATLANTA J.

CONST.,

2005,

Mariya Moosajee,

Violence—A Noxious Cocktail of Genes and the Environment,

96 J.

SOC’Y MED.

some might seek to make genes an excuse for misbehavior .

The case of Stephen Mobley .

Sarah Boseley,

Genes’ Link To Crime May Be Cited in Court,

GUARDIAN (London),

1995,

at 4 (describing the difficulties and misconceptions regarding genetic predisposition to criminal behavior related by participants in the Ciba conference on the Genetics of Criminal and Antisocial Behaviour)

Connor,

supra note 2 (“[A]t a closed meeting of scientists at the Ciba Foundation in London,

Mobley’s family tree will again come under intense scrutiny,

this time by researchers studying the link between genes and violence.”)

Roger Highfield,

Scientists Can Test Foetus For Violent Gene,

DAILY TELEGRAPH (U.K.),

1995,

at 4 (“Discovery of a genetic link to aggression may soon have an impact on America’s legal system.”) (referring to Mobley)

Kenan Malik,

Refutation: No Such Thing as a Born Killer,

INDEPENDENT (London),

1995,

at 15 (describing the Mobley appeal and the Ciba conference as being “[t]wo recent events [that] have revived the debate about whether criminal behaviour is genetically determined”)

Colin Wilson,

Are Some People Born Criminal

DAILY MAIL (U.K.),

2002,

at 12 (considering “whether there is such a thing as a ‘criminal gene’” to be “one of the great debates of modern times”)

at 251–53 (citing articles discussing the controversy surrounding the Mobley case).

The Ciba Foundation is a scientific organization now called the Novartis Foundation.

Information on Novartis Foundation Symposia can be found at http://www.novartisfound.org.uk/ symp.htm (last visited Sept.

2005).

For purposes of clarity,

this article continues to refer to the Ciba Foundation in the context of discussions about the Ciba conference.

The three-day Ciba Foundation symposium was held on February 14–16,

1995.

Contents,

in GENETICS OF CRIMINAL AND ANTISOCIAL BEHAVIOUR,

The papers presented at the symposium were published in Genetics of Criminal and Antisocial Behaviour.

For the purposes of the symposium,

I wrote a chapter about the Mobley case.

See Denno,

See Denno,

For further descriptions of the debates surrounding the issue of genetics and crime outside the context of the Mobley case but in the wake of the Ciba conference on the Genetics of Criminal and

[Vol.

69:209

LAW AND CONTEMPORARY PROBLEMS

Ciba symposium was also relevant to the legal field as a whole because the symposium’s themes squarely addressed a topic that had seemed dormant for years: the interdisciplinary links between genetics and crime.

The twenty-five symposium attendees represented a range of different academic areas,

and law.18 Their contributions are particularly pertinent today,

at the ten-year anniversary of the first Mobley appeal and as Mobley’s execution again draws public attention to his case.

Mobley’s death stirs the genetics and crime debate with a key question: How have courts and litigators treated genetics evidence in criminal cases during the decade following Mobley’s first trial

? Much of the controversy concerning Mobley was based on the presumption that such evidence would skyrocket in use and abuse.

The following pages seek to determine if such forecasts have been realized.

In essence,

this article takes up where the Ciba symposium’s analysis of the legal consequences of genetics and crime left off—to assess the kinds of exchanges the Mobley case would provoke today.

Contrary to predictions at the time of Mobley’s appeal,

it appears that little has occurred in the area of genetics and crime warranting the concern that Mobley generated.

Of course,

the criminal justice system should remain alert to the potential hazards of genetics evidence.

Yet unsupported fears could also curtail some defendants’ constitutionally legitimate attempts to submit mitigating factors in their death penalty cases,

genetics evidence that could validate the existence of more traditionally accepted mitigating conditions,

Presumably,

judges and juries would be less likely to think that a defendant is feigning states such as schizophrenia or alcoholism if such disorders commonly occurred across generations of the defendant’s family.

Discussions of an interdisciplinary subject of this sort require clear terminology,

especially because of the close ties between biological and social factors and the frequent muddling of the terms “biological” and “genetic.” Therefore,

this introduction briefly sets forth definitions of key terms according to how they are used in much of the research literature and in this article.

In general,

Antisocial Behaviour,

Controversial Search for the Criminal Gene: A Conference the Americans Would not Allow,

TIMES (U.K.),

1995,

at 8 (“Ten of the 13 speakers [at the Ciba conference] are from the US,

where criminal genetics is a particularly controversial issue.”)

Patel et al.,

at 16 (exploring opposing viewpoints on the connections between genes and crime and the implications of such on the legal system)

Richard W.

Stevenson,

Researchers See Gene Link to Violence but Are Wary,

TIMES,

1995,

at 29 (“Researchers [at the Ciba symposium] said .

there was tentative but growing evidence of a genetic basis for some criminal and aggressive behavior.

But clearly mindful of the controversy on this issue,

emphasized that the ‘nature versus nurture’ debate was not an either-or proposition in this case.”)

Tom Wilkie,

Genes Link to Violence and Crime Condemned,

INDEP.

(London),

1995,

HOME,

at 2 (noting that the controversy surrounding the issues discussed at the Ciba symposium had “now reached the European Parliament”).

See infra Part III.

Participants,

in GENETICS OF CRIMINAL AND ANTISOCIAL BEHAVIOUR,

Winter/Spring 2006]

REVISITING THE LEGAL LINK

influences on a person’s behavior.19 Biological variables,

and genetic” effects on how an individual may act.20 Genetic factors are a subset of biological variables,

distinguishable because they are inherited

social factors are not inherited.21 All these categories—social,

and genetic—are related in interesting ways.

For example,

being male is a genetic attribute that strongly predicts crime.22 Yet most men never commit an officially recorded crime,

particularly a violent crime.23 Likewise,

other biological factors and a wide range of social factors mediate the relationship between sex and criminal behavior,

so much so that social variables greatly dominate a researcher’s ability to determine who among a small group of people will engage in criminality.24 A common stereotype is that an individual’s “genotype” or “genetic constitution”25 is static,

as though there is a “crime gene” that “hard-wires” certain people to violate the law.26 But this perspective,

however entrenched in the public’s mind,

Rather,

an overwhelming amount of evidence shows that “environments influence gene expression.”27 In other words,

an individual’s genetic structure may act developmentally and probabilistically in the context of social variables by potentially predisposing an individual to certain behavioral tendencies,

“genotype influences societal response,” which explains,

why men are far more likely than women to wear a tuxedo rather than a dress at formal events.29 These kinds of interlinkages between genotype and the environment become helpful in assessing how genetics evidence may be viewed in a criminal law case such as Mobley.

Jasmine A.

Tehrani & Sarnoff A.

Mednick,

Crime Causation: Biological Theories,

in 1 ENCYCLOPEDIA OF CRIME & JUSTICE 292,

2d ed.

2002).

See Deborah W.

Denno,

Gender,

Crime,

and the Criminal Law Defenses,

85 J.

CRIM.

See id.

See DEBORAH W.

DENNO,

BIOLOGY AND VIOLENCE: FROM BIRTH TO ADULTHOOD 7–28 (1990) (detailing a large longitudinal study of various biological and sociological predictors of sex differences in crime).

GREGORY CAREY,

HUMAN GENETICS FOR THE SOCIAL SCIENCES 68 (2003).

Denno,

supra note 2 (referring to a “criminal gene” in the title of a news article about the Mobley case)

Marrin,

supra note 2 (“[Mobley’s] lawyers tried to argue that [Mobley] was hard-wired to be bad.”).

CAREY,

Denno,

Moffitt,

Genetic and Environmental Influences on Antisocial Behaviors: Evidence from Behavioral-Genetic Research,

in 55 ADVANCES IN GENETICS 41,

Hall ed.,

CAREY,

For an excellent discussion and analysis of these issues,

Jones & Timothy H.

Goldsmith,

Law and Behavioral Biology,

105 COLUM.

[Vol.

69:209

LAW AND CONTEMPORARY PROBLEMS

Part II of this article briefly reviews the facts and legal arguments in Mobley.

Part III addresses the primary issues that concerned the court in Mobley,

noting that many of the original reasons for the controversy over the potential use of genetics evidence remain the same as they did in 1994.

Part IV discusses the twenty-seven key genetics and crime cases occurring between 1994 and 2004,

since Mobley spurred the topical dispute.

These cases,

which are surprisingly small in number,

share several important characteristics: they overwhelmingly constitute murder convictions in which defendants attempted to use genetics evidence as a mitigating factor in a death penalty case (as Mobley did),

and the evidence is introduced mostly to verify a condition (such as a type of mental illness) that is commonly acceptable for mitigation.

Part V concludes that,

contrary to some commentators’ warnings during the first Mobley trial,

the last decade has not revealed a legally irresponsible application of genetics factors in criminal cases.

Rather,

courts continue to regard genetics variables skeptically,

and society still embraces the same political and moral concerns over the role of such information.

At the same time,

courts have failed to provide sound and conceptually consistent reasons for denying defendants’ offers of genetics evidence.

Unwarranted constraints on the admissibility of genetics evidence in death penalty cases can undercut some defendants’ efforts to fight their executions.

For example,

genetics evidence can help validate some traditionally accepted mitigating factors (such as certain psychiatric or behavioral disorders) that can otherwise be difficult for defendants to prove.

By imposing unreasonable limitations on genetics arguments,

the criminal justice system may be undermining the very principles and progressive thinking the cap on genetics evidence was originally intended to achieve.

II THE STEPHEN MOBLEY CASE The facts and legal arguments raised in Mobley provide a broad context for analyzing the applicability of genetics evidence for purposes of mitigation.

On February 17,

1991,

Stephen Mobley entered a Domino’s Pizza store in Oakwood,

Hall County,

Georgia,

In the course of the robbery,

in the back of the head as Collins begged for his life.

Mobley was caught a month later and immediately confessed to the crime.30 The two court-appointed attorneys assigned to Mobley,

Daniel Summer and Charles Taylor,31 faced a daunting dilemma.

There was little about Mobley that aroused legal sympathy or provided “‘traditional mitigation evidence.’”32

Mobley v.

State,

151 (Ga.

1993)

Mobley v.

State,

65 (Ga.

1995)

Turpin v.

Mobley,

461 (Ga.

1998)

Denno,

Turpin,

see infra note 38 and accompanying text.

Turpin,

Winter/Spring 2006]

REVISITING THE LEGAL LINK

Mobley’s father was a multimillionaire.33 White and young (age twenty-five at the time of his crime),

Mobley had recently left a home of economic privilege34 having experienced “a childhood standard of living [that] had ranged from middle class to affluent.”35 Mobley’s parents and sister,

stated that he had never been neglected or abused,

sexually or physically.36 Rather,

Mobley showed an early and continuous history of personal and behavioral disorders that became ever more troubling with age.

As a young child,

Mobley cheated,

Such conduct worsened in adolescence,

resulting in prison sentences for forgery and culminating in numerous armed robberies during Mobley’s mid-twenties.

Following this yearslong crime spree,

Mobley robbed and murdered Collins.

While awaiting trial for Collins’s death,

Mobley’s aggression was out of control: He fought continually with other inmates,

tattooed the word “Domino” on his own back,

and verbally taunted and threatened prison guards.

As a youth and as an adult,

seemingly no amount of counseling or punishment could contain Mobley’s outbursts.37 Mobley did have one advantage at the time of his trial—his attorneys,

Summer and Taylor,38 proved to be creative and concerned advocates determined to put forward the best case that someone like Mobley could possibly have.

According to Summer’s account of his trial tactics,

he and Mobley “realized that they had no legal defense to the armed robbery and murder charges because of Mobley’s numerous confessions,

and they also recognized that they had no traditional ‘mitigating’ evidence that they could offer the jury to convince them to spare [Mobley’s] life.”39 In light of these circumstances,

Summer attempted to collect a wide range of other information in order to provide some kind of explanation for Mobley’s history and disposition.40 In the course of analyzing Mobley’s family,

Summer

Denno,

Turpin,

Turpin,

Journalist Tom Junod depicted Mobley’s comfortable childhood in blunter terms: Deprivation

they may explain your typical murderer,

your average everyday ghetto shooter,

Nothing does.

Sure,

his father’s hard and his mother harder

they divorced when Tony was at a delicate age

But please,

Freud,

you have to believe him: There is nothing any of them did—father,

He didn’t get beat,

he didn’t get [sexually abused]

and that’s how it has always been.

Tom Junod,

Pull the Trigger,

GENTLEMEN’S Q.,

July 1994,

Turpin,

Denno,

Daniel A.

Summer,

The Use of Human Genome Research in Criminal Defense and Mitigation of Punishment,

in GENETICS AND CRIMINALITY: THE POTENTIAL MISUSE OF SCIENTIFIC INFORMATION IN COURT 182,

Botkin et al.

1999).

Turpin,

Summer,

Turpin,

[Vol.

69:209

LAW AND CONTEMPORARY PROBLEMS

interviewed Joyce Ann Mobley Childers,

the first cousin of Mobley’s father.41 At Mobley’s sentencing hearing,

Childers testified that four generations of Mobleys—including Mobley’s uncles,

and a grandfather—consistently engaged in acts of violence,

and behavioral disorder.42 Such behavior ranged from serious crimes (murder and rape) to extreme spousal abuse,

and antisocial conduct.43 At the same time,

a substantial number of Mobleys were highly successful at business.44 This split created a family reputation of peculiar renown: the Mobleys were either behaviorally disturbed or business achievers,

they were both.45 What instigated Stephen Mobley’s violence

but Summer attempted to find out.

He and Taylor requested experts and financial support of $1,000 so that scientific tests could be conducted to determine if Mobley showed any kind of genetic or neurochemical imbalance.46 In an effort to bolster the demonstrated need for funding,

Summer introduced into evidence a then-recent article by Han Brunner and others,

published in the prestigious journal Science.47 The article (and other publications following it)48 reported the result

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