For what may be the first time, fMRI scans of brain activity have been used as evidence in the sentencing phase of a murder trial, reports Science magazine. Defense lawyers for an Illinois man convicted of raping and killing a 10-year-old girl used the scans to argue that their client should be spared the death penalty because he has a brain disorder. The defendant, Brian Dugan, had pleaded guilty to killing Jeanine Nicarico after kidnapping her from her home in 1983. “Nobody thought we had any chance at all going in,” says defense attorney Steve Greenberg.
The defense tried an unusual strategy: They argued that Dugan was born with a mental illness–psychopathy–that should be considered a mitigating factor because it impaired his ability to control his behavior. Jonathan Brodie, a psychiatrist at New York University testified for the prosecution. “I said the scans are of wonderful technical quality, but so what? They’re not relevant here,” Brodie says. After 5 hours of deliberation the jury told the judge they’d come to a decision. Before the sentence could be read, the jury asked for more time and the judge sequestered them overnight. The next day they returned with a death sentence for Dugan. The jury apparently had planned to sentence Dugan to life in prison, with at least one juror holding out against the death penalty, which requires a unanimous vote. The last minute change is highly irregular, says Greenberg, who is planning an appeal.