Revisiting the legal link between genetics and crime

Law and Contemporary Problems

Volumn 69, Issue 1-2, 2006, Pages 209-258

  Denno, Deborah W ^a  

^a FORDHAM UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33750045005     PISSN: 00239186     EISSN: 00239186     Source Type: Journal    
DOI: None     Document Type: Article

References (446)

1. Mobley v. State, 455 S.E.2d 61 (Ga. 1995).
2. See generally Deborah W. Denno, Legal Implications of Genetics and Crime Research, in Genetics of Criminal and Antisocial Behaviour 248, 248-64 (Gregory Bock & Jamie Goode eds., 1996) (presented at the 1995 Ciba Foundation Symposium 194) (discussing the Mobley case in light of historical and contemporary arguments concerning the use of genetics evidence in criminal law cases).
3. The news media focused on detailing the behavioral disorders across generations of the Mobley family. See, e.g., 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.");
4. Steve Connor, Do Your Genes Make You a Criminal?, Indep. on Sun. (London), Feb. 12, 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, rape, robbery, suicide, 'you name it,' the Mobley family has had it, he says.");
5. Convicted Killer Seeks Brain Test, Times (London), Feb. 14, 1995, at 6 ("Violence, aggression and anti-social behaviour 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.");
6. Michelle Henery, Killer Blamed His Family History, Times (U.K.), Oct. 2, 2002, at 5 (According to Mobley's counsel, Mobley's criminality derived from "four generations of Mobley men," either successful or violent, "including a murderer, a rapist, an armed robber, spouse abusers, several substance abusers and Mobley's father, a self-made millionaire.");
7. Kathryn Holmquist, Nature, Nurture, the "Criminal Gene" - What Makes Men Violent?, Irish Times, May 9, 1996, at 12 ("After [Mobley] was sentenced to death, his lawyers won an appeal. They argued that he was not acting on the basis of 'free will' but due to a genetic predilection. Virtually his entire family, they said, were violent.");
8. Minette Marrin, Freedom Is a Better Bet than the Gene Genie, Sun. Times (U.K.), Oct. 6, 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.").
9. Various news accounts illustrated the degree of attention the Mobley case received. See, e.g., Mike Pezzella, Violence DNA Researchers Mum on Meeting, Hoping to Avoid Protests, Biotech. Newswatch, Apr. 15, 1996, at 14 ("The [Mobley] case became a minor landmark when Mobley's ... attorney ... 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.");
10. Babs Brockway, Mobley's Death Sentence Is Upheld, Times (Gainesville, Ga.), Mar. 18, 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.");
11. Not by Our Genes Alone, New Sci., Feb. 25, 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, held in London ....");
12. Kam Patel, Adrian Raine & Steven Rose, Perspective: An Inside Job Or A Set-Up?, Times Higher Educ. Supplement, Feb. 10, 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.");
13. see also Sarah Boseley, Second Front: Genes In The Dock, Guardian (London), Mar. 13, 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.");
14. 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.");
15. Edward Felsenthal, Legal Beat: Man's Genes Made Him Kill, His Lawyers Claim, Wall St. J., Nov. 15, 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.").
16. Mobley, 455 S.E.2d at 66.
17. Turpin v. Mobley, 502 S.E.2d 458, 463 (Ga. 1998).
18. Id. at 461.
19. Id. at 467.
20. Id. at 463-66.
21. Id. at 466; see also infra notes 41-45 and accompanying text (discussing the testimony of Joyce Ann Mobley Childers).
22. Turpin, 502 S.E.2d at 466.
23. Mark Davis, Final Appeals Fail; Killer Mobley Dies, Atlanta J. Const., Mar. 2, 2005, at B3;
24. Mark Davis, Mobley Dies for 1991 Murder; Supreme Court Denies Last Appeals Half-Hour Before Execution, Atlanta J. Const., Mar. 2, 2005, at 1JJ.
25. See, e.g., Mariya Moosajee, Violence - A Noxious Cocktail of Genes and the Environment, 96 J. Roy. Soc'y Med. 211, 213 (2003) ("[S]ince genetic make-up is predetermined, some might seek to make genes an excuse for misbehavior .... The case of Stephen Mobley ... is a case in point.");
26. Sarah Boseley, Genes' Link To Crime May Be Cited in Court, Guardian (London), Feb. 14, 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);
27. 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.");
28. Roger Highfield, Scientists Can Test Foetus For Violent Gene, Daily Telegraph (U.K.), Feb. 14, 1995, at 4 ("Discovery of a genetic link to aggression may soon have an impact on America's legal system.") (referring to Mobley);
29. Kenan Malik, Refutation: No Such Thing as a Born Killer, Independent (London), Feb. 14, 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");
30. Colin Wilson, Are Some People Born Criminal?, Daily Mail (U.K.), Aug. 2, 2002, at 12 (considering "whether there is such a thing as a 'criminal gene"' to be "one of the great debates of modern times");
31. see also Denno, supra note 2, at 251-53 (citing articles discussing the controversy surrounding the Mobley case).
32. 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. 1, 2005). For purposes of clarity, this article continues to refer to the Ciba Foundation in the context of discussions about the Ciba conference.
33. The three-day Ciba Foundation symposium was held on February 14-16, 1995. Contents, in Genetics of Criminal and Antisocial Behaviour, supra note 2, at v.
34. The papers presented at the symposium were published in Genetics of Criminal and Antisocial Behaviour. Id.
35. For the purposes of the symposium, I wrote a chapter about the Mobley case. See Denno, supra note 2, at 248.
36. See Denno, supra note 2, at 248.
37. 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 Antisocial Behaviour, see Clive Cookson, Controversial Search for the Criminal Gene: A Conference the Americans Would not Allow, Fin. Times (U.K.), Feb. 14, 1995, at 8 ("Ten of the 13 speakers [at the Ciba conference] are from the US, where criminal genetics is a particularly controversial issue.");
38. Patel et al., supra note 3, at 16 (exploring opposing viewpoints on the connections between genes and crime and the implications of such on the legal system);
39. Richard W. Stevenson, Researchers See Gene Link to Violence but Are Wary, N.Y. Times, Feb. 19, 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, most ... emphasized that the 'nature versus nurture' debate was not an either-or proposition in this case.");
40. Tom Wilkie, Genes Link to Violence and Crime Condemned, Indep. (London), Feb. 15, 1995, HOME, at 2 (noting that the controversy surrounding the issues discussed at the Ciba symposium had "now reached the European Parliament").
41. See infra Part III.
42. Participants, in Genetics of Criminal and Antisocial Behaviour, supra note 2, at vii.
43. Jasmine A. Tehrani & Sarnoff A. Mednick, Crime Causation: Biological Theories, in 1 Encyclopedia of Crime & Justice 292, 292 (Joshua Dressler et al. eds., 2d ed. 2002).
44. Id.
45. Id.
46. See Deborah W. Denno, Gender, Crime, and the Criminal Law Defenses, 85 J. Crim. L. & Criminology 80, 80-180 (1994) (examining a broad range of statistics on sex differences in crime).
47. See id.
48. 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).
49. Gregory Carey, Human Genetics for the Social Sciences 68 (2003).
50. Denno, supra note 2, at 254;
51. see also Holmquist, supra note 2 (referring to a "criminal gene" in the title of a news article about the Mobley case);
52. Marrin, supra note 2 ("[Mobley's] lawyers tried to argue that [Mobley] was hard-wired to be bad.").
53. Carey, supra note 25, at 452.
54. Denno, supra note 2, at 254;
55. see also Terrie E. Moffitt, Genetic and Environmental Influences on Antisocial Behaviors: Evidence from Behavioral-Genetic Research, in 55 Advances in Genetics 41, 41-104 (Jeffrey C. Hall ed., 2005) (analyzing the interaction between genes and the environment with respect to antisocial behavior).
56. Carey, supra note 25, at 452.
57. For an excellent discussion and analysis of these issues, see Owen D. Jones & Timothy H. Goldsmith, Law and Behavioral Biology, 105 Colum. L. Rev. 405 (2005).
58. Mobley v. State, 426 S.E.2d 150, 151 (Ga. 1993);
59. Mobley v. State, 455 S.E.2d 61, 65 (Ga. 1995);
60. Turpin v. Mobley, 502 S.E.2d 458, 461 (Ga. 1998);
61. Denno, supra note 2, at 251.
62. Turpin, 502 S.E.2d at 463;
63. see infra note 38 and accompanying text.
64. Turpin, 502 S.E.2d at 463.
65. Denno, supra note 2, at 251.
66. Id.;
67. Turpin, 502 S.E.2d at 463-64.
68. Turpin, 502 S.E.2d at 464.
69. Id. at 463.
70. Journalist Tom Junod depicted Mobley's comfortable childhood in blunter terms: Deprivation? Want? Hey, they may explain your typical murderer, your average everyday ghetto shooter, but they sure ... don't explain Tony Mobley. Nothing does. Sure, his father's hard and his mother harder; sure, they divorced when Tony was at a delicate age; sure, he resents ... his older sister. But please, Dr. Freud, you have to believe him: There is nothing any of them did - father, mother, sister, grandpa, grandma, maiden aunt - to deserve him. He didn't get beat, he didn't get [sexually abused]; no, beating and [sexual abuse], they were what he did, and that's how it has always been. Tom Junod, Pull the Trigger, Gentlemen's Q., July 1994, at 92-94.
71. Turpin, 502 S.E.2d at 463-64;
72. Denno, supra note 2, at 251-52;
73. 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, 189 (Jeffrey R. Botkin et al. eds., 1999).
74. Turpin, 502 S.E.2d at 463.
75. Summer, supra note 37, at 189;
76. see also Turpin, 502 S.E.2d at 463-66 (recognizing the lack of available mitigating evidence in Mobley's background).
77. Turpin, 502 S.E.2d at 463-66.
78. Id. at 465;
79. Denno, supra note 2, at 251.
80. At the time of her trial testimony, Joyce Ann went by the name of Joyce Ann Mobley Childers. Denno, supra note 2, at 251.
81. The Turpin court, however, refers to her using two different last names: Joyce Ann Elders, see Turpin, 502 S.E.2d at 465,
82. and Joyce Ann Childers, see id. at 467 (basically the name she used at trial). The court does not explain the discrepancy in names.
83. Turpin, 502 S.E.2d at 465.
84. Id.;
85. Denno, supra note 2, at 251 & fig.1.
86. Denno, supra note 2, at 251 & fig.1.
87. Id.
88. Id. at 252;
89. Summer, supra note 37, at 189.
90. H. G. Brunner et al., Abnormal Behavior Associated with a Point Mutation in the Structural Gene for Monoamine Oxidase A, 262 Science 578 (1993) [hereinafter Brunner et al., Abnormal Behavior];
91. see also Paul S. Appelbaum, Behavioral Genetics and the Punishment of Crime, 56 Psych. Services 25, 25 (2005) (discussing the Brunner et al. study).
92. For a general overview of the research, see Han G. Brunner, MAOA Deficiency and Abnormal Behaviour: Perspectives on an Association, in Genetics of Criminal and Antisocial Behaviour, supra note 2, at 155, 155-67 [hereinafter Brunner, MAOA Deficiency].
93. For details on the studies, see Brunner et al., Abnormal Behavior, supra note 47;
94. H. G. Brunner et al., X-Linked Borderline Mental Retardation with Prominent Behavioral Disturbance: Phenotype, Genetic Localization, and Evidence for Disturbed Monoamine Metabolism, 52 Am. J. Hum. Genetics 1032 (1993) (herinafter Brunner et al., X-Linked].
95. Brunner, MAOA Deficiency, supra note 48, at 156.
96. Id.
97. Brunner et al., X-Linked, supra note 48, at 1035.
98. Brunner et al., Abnormal Behavior, supra note 47, at 578-79.
99. See id. at 578.
100. Denno, supra note 2, at 252.
101. The co-author who volunteered to test Mobley was Xandra Breakefield. Id.
102. Id.
103. Turpin v. Mobley, 502 S.E.2d 458, 466 (Ga. 1998).
104. See supra notes 8-11 and accompanying text.
105. See supra notes 12, 16 and accompanying text.
106. Typically, symposia at the Ciba Foundation do not involve topics that would interest nonscientists. See The Novartis Foundation, http://www.novartisfound.org.uk (last visited Sept. 25, 2005).
107. See also supra note 16 and accompanying text.
108. See supra notes 46-47 and accompanying text. The MAOA deficiency issue has come about in other cases.
109. See Appelbaum, supra note 47, at 25-27.
110. Denno, supra note 2, at 252.
111. Turpin v. Mobley, 502 S.E.2d 458, 463 (Ga. 1998) ("[P]sychological reports showed that Mobley had an average IQ .... Although some psychological reports early in Mobley's childhood suggested that he might have a learning disability or organic brain disorder, later reports found no evidence of either.").
112. Brunner et al., Abnormal Behavior, supra note 47, at 578.
113. Denno, supra note 2, at 251 & fig.1.
114. Id. at 248.
115. Id. at 252.
116. Id. at 252-55.
117. It is beyond the scope of this article to analyze either the research or the publications examining the link between genetics and crime in legal cases. For a few overviews of this literature, see Carey, supra note 25;
118. Denno, supra note 2;
119. Jones & Goldsmith, supra note 29;
120. Moffitt, supra note 28;
121. see also Matthew Jones, Overcoming the Myth of Free Will in Criminal Law: The True Impact of the Genetic Revolution, 52 Duke L.J. 1031, 1039-40 (2003) (describing XYY Syndrome-related studies in the context of the early history of genetic defenses in criminal trials).
122. For recent research reviews, see Carey supra note 25, at 431-57;
123. Tehrani & Mednick, supra note 19, at 292-302;
124. Moffitt, supra note 28, at 41-104;
125. Terrie E. Moffitt, The New Look of Behavioral Genetics in Developmental Psychopathology: Gene-Environment Interplay in Antisocial Behaviors, 131 Psychol. Bulletin 533 (2005).
126. See Summer, supra note 37, at 182-90.
127. Of course, there are vastly different types of genetics evidence, ranging from family history to modern medical testing. It is artificial to aggregate all the research under one heading. This type of lumping also confuses debates about when and where the evidence should be appropriately applied. The umbrella heading of "genetics evidence" is used in this article, however, to make general points, while recognizing that the points made could differ in their accuracy depending on the type and quality of evidence being discussed.
128. Denno, supra note 2, at 254;
129. see also infra note 189 (describing the reactions to a 1995 University of Maryland conference on The Meaning and Significance of Research on Genetics and Criminal Behavior, in which the public and some conference participants voiced many of these same five concerns).
130. See Denno, supra note 24.
131. Denno, supra note 2, at 254.
132. For examinations of the relationship among these variables, see Carey supra note 25;
133. Denno, supra note 24;
134. Jones & Goldsmith, supra note 29;
135. Moffitt, supra note 28.
136. These cases, which are summarized in the Appendix and in Charts 1-3, infra, were compiled using legal research databases only. Other cases may exist in which genetic predisposition evidence was at issue or potentially could have been at issue; however, such cases were either not published or were not made known publicly in a way that made them readily verifiable. (A general internet search turned up references to cases in which genetics evidence was relevant; in most instances, however, efforts to locate such cases on Westlaw or LexisNexis were unsuccessful.) The twenty-seven cases discussed in this article also do not include Mobley, 455 S.E.2d 61 (Ga. 1995), which already has been examined in some detail, or other decisions in which genetics evidence may have been an issue in a context not relevant to this article.
137. For example, in People v. Rodriguez, 764 N.Y.S.2d 305 (N.Y. Sup. Ct. 2003), the New York Supreme Court held a defendant may be compelled to provide a blood sample for DNA testing so the defendant's DNA could be compared to DNA evidence from a crime scene.
138. Id. at 311-15.
139. The court ruled that the defendant's DNA could be used only for that criminal proceeding, however, and could not be placed into a DNA database for comparison with DNA evidence from other unsolved crimes. Results of DNA testing must be kept confidential - defendant has an "'exclusive property right' to control dissemination of his genetic makeup." Id. at 311.
140. In essence, the opinion concerns privacy rights and DNA samples, as well as ways in which genetic material has been abused in the past. Id. at 307-15.
141. See infra p. 239.
142. See infra pp. 221, 223, 224.
143. See infra Chart 1 and app. In twenty-one of the twenty-seven examined cases, the defendant received the death penalty. See Dennis ex rel. Butko v. Budge, 378 F.3d 880, 882 (9th Cir. 2004), cert. denied, stay denied, Dennis v. Budge, 542 U.S. 959 (2004);
144. Landrigan v. Stewart, 272 F.3d 1221, 1223 (9th Cir. 2001), vacated, reh'g en banc granted, 397 F.3d 1235 (9th Cir. 2005), aff'g in part, rev'g in part,
145. Landrigan v. Schriro, 441 F.3d 638 (9th Cir. 2006) (en banc);
146. Hendricks v. Calderon, 864 F. Supp. 929, 931 (N.D. Cal. 1994), aff'd, 70 F.3d 1032, 1035 (9th Cir. 1995), cert. denied, 517 U.S. 1111 (1996);
147. Fudge v. State, 120 S.W.3d 600, 601 (Ark. 2003);
148. Rogers v. State, 783 So. 2d 980, 980 (Fla. 2001);
149. People v. Armstrong, 700 N.E.2d 960, 963 (III. 1998);
150. People v. Franklin, 656 N.E.2d 750, 750 (III. 1995);
151. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002);
152. Benefiel v. State, 716 N.E.2d 906, 910 (Ind. 1999);
153. State v. Manning, 03-1982 (La. 10/19/04);
154. So. 2d 1044, 1057, cert. denied, Manning v. Louisiana, No. 04-8851, 2005 U.S. LEXIS 3059 (U.S. Apr. 4, 2005);
155. Billiot v. State, 655 So. 2d 1, 2 (Miss. 1995);
156. State v. Ferguson, 20 S.W.3d 485, 485 (Mo. 2000);
157. State v. Timmendequas, 737 A.2d 55, 65-66 (N.J. 1999);
158. State v. Hartman, 476 S.E.2d 328, 331 (N.C. 1996);
159. State v. Hughbanks, 99 Ohio St. 3d 365, 2003-Ohio-4121,
160. N.E.2d 1081, at ¶ 30;
161. State v. Spivey, 692 N.E.2d 151, 155 (Ohio 1998);
162. State v. Wilson, No. Civ.A. 92CA005396, 1994 WL 558568, at *1 (Ohio Ct. App. Oct. 12, 1994);
163. Von Dohlen v. State, 602 S.E.2d 738, 740 (S.C. 2004), cert. denied, South Carolina v. Von Dohlen, No. 04-937, 2005 U.S. LEXIS 2695 (U.S. Mar. 21, 2005);
164. Cauthern v. State, 145 S.W.3d 5711, 578 (Tenn. Crim. App. 2004);
165. Alley v. State, 958 S.W.2d 138, 140 (Tenn. Crim. App. 1997);
166. Hall v. State, 160 S.W.3d 24, 26 (Tex. Crim. App. 2004), cert. denied, Hall v. Texas, No. 04-8762, 2005 U.S. LEXIS 5073 (U.S. June 27, 2005). In three cases, the defendant was sentenced to life imprisonment.
167. See Davis v. State, No. M2003-00744-CCA-R3-PC, 2004 WL 253396, at *1 (Tenn. Crim. App. Feb. 11, 2004);
168. State v. Maraschiello, 88 S.W.3d 586, 590 (Tenn. Crim. App. 2000);
169. State v. Arausa, No. 2002-439113 (Dist. Ct. Lubbock County July 5, 2002), aff'd, Arausa v. State, No. 07-02-0396-CR, 2003 WL 21803322 (Tex. Ct. App. Aug. 6, 2003).
170. In one case, the defendant was acquitted. State v. DeAngelo, No. CR 97010866S, 2000 WL 973104, at *1 (Conn. Super. Ct. June 20, 2000).
171. In one case, the defendant was sentenced to thirty-five years of imprisonment. People v. Hammerli, 662 N.E.2d 452, 452 (III. App. Ct. 1996).
172. Finally, in one case, the defendant's driving privileges remained suspended. Sanchez v. Ryan, 734 N.E.2d 920, 921 (III. App. Ct. 2000).
173. Mitigation evidence can be introduced during the penalty phase of a death penalty case to support attorneys' explanations for why a defendant should not be executed. Linda E. Carter & Ellen Kreitzberg, Understanding Capital Punishment Law 137 (2004).
174. The evidence, which is typically introduced through the use of expert testimony, focuses on a potentially wide range of individualized circumstances - for example, that the defendant had no prior criminal record, came from an abusive home, is remorseful, will not be dangerous in the future, is young, has a mental disorder, or suffers from any one of various life circumstances. Id. at 137-38.
175. Although the Supreme Court permits substantial flexibility in the kind of evidence that can be admitted for mitigation purposes, the Court also allows states considerable discretion in how that evidence can be structured. Id.
176. substantial case law and literature on this topic are discussed in detail elsewhere. See generally id. at 137-56 (providing a general overview of the key cases and literature on mitigation evidence in death penalty cases).
177. See infra Chart 2 and app. Genetics evidence has been used to validate the existence of a wide range of serious conditions. See Dennis ex rel. Butko, 378 F.3d at 895 (Berzon, J., concurring) (mental illness);
178. Landrigan, 272 F.3d at 1228-29 (predisposition towards violence);
179. Hendricks, 864 F. Supp. at 935 (mental illness);
180. Fudge, 120 S.W.3d at 602-03 (violence towards women);
181. DeAngelo, 2000 WL 973104, at *6 (bipolar disorder);
182. Rogers, 783 So. 2d at 996 (porphyria);
183. Armstrong, 700 N.E.2d 970 (alcoholism);
184. Franklin, 656 N.E.2d at 761 (mental illness, predisposition towards violence);
185. Sanchez, 734 N.E.2d at 922 (alcohol tolerance);
186. Hammerli, 662 N.E.2d at 456 (severe mood disorder);
187. Stevens, 770 N.E.2d at 750 (dissociative disorder);
188. Benefiel, 716 N.E.2d at 913 (schizotypal personality disorder);
189. Manning, 03-1982 (La. 10/19/04);
190. So. 2d at 1097 (alcoholism);
191. Billiot, 655 So. 2d at 8 (schizophrenia);
192. Ferguson, 20 S.W.3d at 509 (depression);
193. Timmendequas, 737 A.2d at 71 (pedophilia);
194. Hartman, 476 S.E.2d at 342 (alcoholism);
195. Hughbanks, 99 Ohio St. 3d 365, 2003-Ohio-4121, 792 N.E.2d 1081, at ¶ 11-3 (schizophrenia);
196. Spivey, 692 N.E.2d at 165 (extra Y chromosome);
197. Wilson, 1994 WL 558568, at *43 (alcoholism);
198. Von Dohlen, 602 S.E.2d at 741-42 (depression, mental disorders);
199. Cauthern, 145 S.W.3d at 588 (impulsive behavior);
200. Davis, 2004 WL 253396, at *4 (depression, mental illness);
201. Maraschiello, 88 S.W.3d at 598 (delusional disorder);
202. Alley, 958 S.W.2d at 140-43 (physical abnormalities, neurosis, Multiple Personality Disorder);
203. Hall, 160 S.W.3d at 32-33 (Fetal Alcohol Syndrome, Fragile X Syndrome, Klinefelter's Syndrome, extra Y chromosome);
204. Arausa, No. 07-020396-CR, 200-3 WL 21803322, at *4 (propensity of abused to become abusers).
205. See infra Chart 3 and app. Chart 3 illustrates the frequency with which defendants sought to admit different forms of genetics evidence. The total number will be more than the number of examined cases (twenty-seven), because in some cases the defense attempted to introduce more than one form. Defendants sought to admit expert testimony regarding a direct evaluation of the defendant in eleven instances. See DeAngelo, 2000 WL 973104, at *6;
206. Rogers, 783 So. 2d at 995;
207. Hammerli, 662 N.E.2d at 456;
208. Stevens, 770 N.E.2d at 750;
209. Manning, 03-1982 (La. 10/19/04);
210. So. 2d at 1097;
211. Billiot, 655 So. 2d at 8;
212. Timmendequas, 737 A.2d at 71;
213. Hughbanks, 99 Ohio St. 3d 365, 2003-Ohio-4121, 792 N.E.2d 1081, at ¶ 113;
214. Spivey, 692 N.E.2d at 165;
215. Alley, 958 S.W.2d at 140-43;
216. Hall, 160 S.W.3d at 32-33. Defendants also attempted to introduce evidence regarding their family histories in eleven instances.
217. See Hendricks, 864 F. Supp. at 935;
218. Rogers, 783 So. 2d at 995;
219. Armstrong, 700 N.E.2d at 970;
220. Franklin, 656 N.E.2d at 761;
221. Sanchez, 734 N.E.2d at 922-23;
222. Benefiel, 716 N.E.2d at 913;
223. Hartman, 476 S.E.2d at 342;
224. Wilson, 1994 WL 558568, at *43;
225. Cauthern, 145 S.W.3d at 588;
226. Davis, 2004 WL 253396, at *4;
227. Maraschiello, 88 S.W.3d at 598. Defendants attempted to introduce evidence regarding their behavioral histories twice.
228. See Landrigan, 272 F.3d at 1228-29;
229. Ferguson, 20 S.W.3d at 509. Defendants also attempted to introduce their medical records in two instances.
230. See Benefiel, 716 N.E.2d at 913;
231. Von Dohlen, 602 S.E.2d at 741-42. One defendant attempted to introduce medical studies as evidence.
232. See Arausa, 2003 WL 21803322, at *4. One case did not describe the nature of the evidence sought to be introduced.
233. See Fudge, 120 S.W.3d 600. Finally, one case examined did not involve the introduction of genetics evidence, genetics being mentioned only in passing.
234. See Dennis ex rel. Butko, 378 F.3d at 895 (Berzon, J., concurring).
235. For further discussion of the tendency of individuals to overplay the powerful effect of biology on behavior, see Deborah W. Denno, Commentary, in Understanding Crime: A Multidisciplinary Approach 175, 175-80 (Susan Guarino-Ghezzi & A. Javier Treviño eds., 2005).
236. DeAngelo, 2000 WL 973104, at ↑;
237. Rogers, 783 So. 2d at 997;
238. Manning, 03-1982 (La. 10/19/04);
239. So. 2d at 1097;
240. Timmendequas, 737 A.2d at 71;
241. Wilson, 1994 WL 558568, at *43;
242. Davis, 2004 WL 253396, at 4;
243. Maraschiello, 88 S.W.3d at 598. Although these cases reference genetics evidence only in passing, some of the cases are relevant nonetheless to discussions that appear elsewhere in this article's analysis.
244. N.E.2d at 739.
245. Id. at 754.
246. Id. at 755.
247. Stevens v. State, 770 N.E.2d at 739, may be seen as implicit approval of a genetics defense because the court did not consider a defense theory partially based on genetics evidence to constitute ineffective assistance of counsel. Yet the theory was obviously considered unsuccessful, nonetheless.
248. S.E.2d 738 (S.C. 2004), cert. denied, South Carolina v. Von Dohlen, No. 04-937, 2005 U.S. LEXIS 2695 (U.S. Mar. 21, 2005).
249. Id. at 746.
250. Id. at 741.
251. Id. at 741-42.
252. S.W.3d 485 (Mo. 2000).
253. Id. at 509.
254. Id.
255. N.E.2d 906 (Ind. 1999).
256. Id. at 913.
257. Id.
258. N.E.2d 750 (III. 1995).
259. Id. at 761.
260. F.3d 1221, 1221 (9th Cir. 2001), vacated, reh'g en banc granted, 397 F.3d 1235 (9th Cir. 2005).
261. The Ninth Circuit recently issued an order on this case. Landrigan v. Schriro, 441 F.3d 638 (9th Cir. 2006)(en banc)(affirming in part and reversing in part district court's denial of a capital habeas petition because defendant demonstrated colorable claim of ineffective assistance of counsel during penalty phase based on counsel's failure to investigate and present mitigating evidence including defendant's family history and mental illness, which could have resulted in a sentence other than death).
262. Landrigan, 272 F.3d at 1228.
263. Id. at 1228 n.4
264. (citing Turpin v. Mobley, 502 S.E.2d 458, 458 (Ga. 1998)).
265. State v. Landrigan, 859 P.2d 111, 112 (Ariz. 1993).
266. Turpin, 502 S.E.2d at 460.
267. Landrigan, 859 P.2d at 118.
268. Landrigan, 272 F.3d at 1223.
269. According to an amended brief filed on January 8, 2001, mitigating factors would have included evidence that "[Landrigan's] brain does not work the way it is supposed to due to genetics and in utero exposure to alcohol and other toxic substances." Corrected Brief of Appellant at 22, Landrigan v. Stewart, 272 F.3d 1221 (9th Cir. 2001) (No. 00-99011) [hereinafter Corrected Brief of Appellant]. This condition "was exacerbated due to abandonment and other emotional detachments that [Landrigan] experienced when he was a baby, as well as substance abuse as a youth and as an adult."
270. Id.
271. Landrigan, 272 F.3d at 1225.
272. Id. at 1228.
273. Corrected Brief of Appellant, at 61. Landrigan's counsel on appeal argued that trial counsel made only a minimal effort to gather mitigating evidence, and that "all the signals were there ... to recognize [Landrigan's brain dysfunction], conduct an investigation ... and present it to the court at the sentencing hearing."
274. Id.
275. Id.
276. F.3d 1312 (11th Cir. 2001).
277. S.E.2d 458 (Ga. 1998).
278. Landrigan, 272 F.3d at 1228 n.4.
279. Landrigan refuted the panel's reliance on the Mobley cases in a subsequent supplemental brief. Supplemental Brief of Petitioner-Appellant at 2, Landrigan v. Stewart, 397 F.3d 1235 (9th Cir. 2005) (No. 00-99011). Citing a wide range of research for support, the brief emphasized that Landrigan's genetic predisposition does not render violent behavior a certainty, but simply indicates a higher risk for antisocial tendencies.
280. Id. at 1.
281. Landrigan, 272 F.3d at 1229.
282. Id.
283. Petitioner-Appellant's Petition for Panel Rehearing and Rehearing En Banc at 3, Landrigan v. Stewart, 397 F.3d 1235 (9th Cir. 2005) (No. 00-99011) [hereinafter Petitioner-Appellant's Petition].
284. Id.
285. Respondents-Appellees argued, however, that the appellate court properly limited its consideration of mitigating factors to genetics evidence, since it was the only evidence presented to the state court in support of Landrigan's ineffective assistance of counsel claim during the first post-conviction relief proceeding. Respondents-Appellees' Supplemental Brief at 7-10, Landrigan v. Stewart, 397 F.3d 1235 (9th Cir. 2005) (No. 00-99011).
286. State v. Eastlack, No. CR-28677 (Ariz. Sup. Ct. Apr. 11, 1997).
287. Petitioner-Appellant's Petition, at 13. In further support of this assertion, appellant's counsel submitted a supplemental letter calling the court's attention to recent scholarship related to the use of biopsychosocial research in the legal system.
288. Jeffrey L. Kirchmeier, A Tear in the Eye of the Law: Mitigating Factors and the Progression Toward a Disease Theory of Criminal Justice, 83 Or. L. Rev. 631 (2004).
289. Petitioner-Appellant's Petition, at 14-15.
290. Id. at 16.
291. Attorneys for the appellee responded by arguing that the appellate court did not present the genetic predisposition as evidence of future dangerousness, but simply indicated it was unlikely to have affected the outcome of the trial. Respondents-Appellees' Response to Petitioner-Appellant's Petition for Panel Rehearing and Rehearing En Banc at 13, Landrigan v. Stewart, 397 F.3d 1235 (9th Cir. 2005) (No. 00-99011).
292. Landrigan v. Stewart, 397 F.3d 1235, 1235 (9th Cir. 2005).
293. See infra Part V.
294. F. Supp. 929 (N.D. Cal. 1994), aff'd, 70 F.3d 1032 (9th Cir. 1995).
295. F.3d at 1045. The court rejected the defendant's claim that his counsel was ineffective for failing to present this same evidence during the guilt phase.
296. Id.
297. Id.
298. The reasoning in Hendricks markedly contrasts with the arguments presented in State v. Hartman, 476 S.E.2d 328 (N.C. 1996).
299. Hartman argued the trial court's restructuring of his requested jury instruction regarding his family history of alcoholism prevented the jury from considering relevant mitigating evidence - specifically, Hartman's genetic predisposition to alcohol abuse. Id. at 342.
300. The trial court instead submitted the following instruction: "'Consider whether the defendant is an alcoholic.'" Id.
301. Stated this way, Hartman posited, the jury "'was more likely'" to view Hartman's alcoholism "'simply as weakness or unmitigated choice.'" Id.
302. The court rejected this argument, holding that a "catchall mitigating circumstance" instruction that had been submitted was sufficient to address any such concerns. Id.
303. S.W.3d 571, 613 (Tenn. Crim. App. 2004).
304. Id. at 609.
305. S.W.2d 138 (Tenn. Crim. App. 1997).
306. Id. at 149-50.
307. Id. at 143.
308. Id.
309. F.3d 880 (9th Cir. 2004), cert denied, stay denied,
310. Dennis v. Budge, 542 U.S. 959 (2004).
311. Id. at 895.
312. Id.
313. See generally Denno, supra note 2, for an overview of some of these challenges.
314. See supra Chart 2; infra app. These types of mitigating factors include predispositions to alcoholism, depression, impulsive behavior, violence, and aggression. See supra Chart 2 and supra note 71 (discussing the different types of genetics evidence). The conditions range from the specific (such as XXY Syndrome, porphyria, and bipolar disorder) to the general (for example, mental disorders, personality disorders, mood disorders, and "genetic defects"). See supra Chart 2 and supra note 81 (listing the ways genetics evidence validates the existence of serious conditions).
315. See, e.g., Landrigan v. Stewart, 272 F.3d 1221 (9th Cir. 2001) vacated, reh'g en banc granted,
316. F. 3d 1235 (9th Cir. 2005), aff'g in part, rev'g in part,
317. Landrigan v. Schriro, 441 F.3d 638 (9th Cir. 2006) (en banc);
318. Hendricks v. Calderon, 864 F. Supp. 929 (N.D. Cal. 1994), aff'd, 70 F.3d 1032 (9th Cir. 1995);
319. People v. Franklin, 656 N.E.2d 750 (III. 1995);
320. Sanchez v. Ryan, 734 N.E.2d 920 (III. App. Ct. 2000);
321. State v. Hartman, 476 S.E.2d 328 (N.C. 1996);
322. State v. Hughbanks, 99 Ohio St. 3d 365, 2003-Ohio-4121,
323. N.E.2d 1081;
324. Cauthern v. State, 145 S.W.3d 571 (Tenn. Crim. App. 2004);
325. Davis v. State, No. M2003-00744-CCA-R3-PC, 2004 WL 253396 (Tenn. Crim. App. Feb. 11, 2004);
326. State v. Maraschiello, 88 S.W.3d 586 (Tenn. Crim. App. 2000).
327. Cauthern, 145 S.W.3d at 609.
328. Ohio St. 3d 365, 2003-Ohio-4121, 792 N.E.2d 1081, at ¶¶ 136-37.
329. In Hughbanks, id. at ¶ 134, and at least two other cases,
330. State v. Spivey, 692 N.E.2d 151 (Ohio 1998),
331. and State v. Wilson, No. Civ.A. 92CA005396, 1994 WL 558568 (Ohio Ct. App. Oct. 12, 1994), the courts did not expressly reject mitigating evidence regarding genetics, but held that the aggravating circumstances of the crime outweighed any mitigating factors. Family history was not specifically offered as proof of a genetics defense in Spivey and Wilson. Spivey involved a diagnosis of XYY Syndrome.
332. N.E.2d at 165. A defense expert testified that although the syndrome itself does not cause aggression, the defendant's family environment exacerbated his condition and resulted in his criminal behavior.
333. Id. Wilson merely listed the defendant's genetic predisposition to alcoholism among the mitigating factors presented during the penalty phase, and offered no further information concerning its origins.
334. WL 558568, at *13 n.5.
335. Landrigan, 272 F.3d at 1228-29.
336. People v. Franklin, 656 N.E.2d 750 (Ill. 1995).
337. Landrigan, 272 F.3d at 1229. The Franklin court further concluded the following: The proffered evidence regarding defendant's psychological problems and his family's violent and psychological history was not inherently mitigating. Although this evidence could have evoked compassion in the jurors, it could have also demonstrated defendant's potential for future dangerousness and the basis for defendant's past criminal acts. The evidence of defendant's mental illness may also have shown that defendant was less deterrable or that society needed to be protected from him.
338. N.E.2d at 761 (citations omitted).
339. See supra note 122 and accompanying text for other commentary on the double-edged-sword dilemma in Landrigan; see infra Part V for further discussion of this issue in the context of additional conceptual problems with the genetics evidence cases.
340. *1 (Tex. App. Aug. 6, 2003), aff'g State v. Arausa, No. 2002-439113 (Dist. Ct. Lubbock County July 5, 2002).
341. *2.
342. *4.
343. S.W.3d 586 (Tenn. Crim. App. 2000).
344. Id. at 599.
345. Id. at 599-611.
346. F. Supp. 929 (N.D. Cal. 1994), aff'd, 70 F.3d 1032 (9th Cir. 1995).
347. Id. at 934-35.
348. Future dangerousness and other issues raised by genetics evidence are discussed in People v. Rodriguez, 764 N.Y.S.2d 305 (N.Y. Sup. Ct. 2003), which concerns defendants' privacy rights in the context of the recent trend to collect DNA samples. See supra note 76 for a more detailed account of Rodriguez.
349. People v. Franklin, 656 N.E.2d 750, 761 (Ill. 1995).
350. Landrigan v. Stewart, 272 F.3d 1221, 1229 (9th Cir. 2001) vacated, reh'g en banc granted,
351. F.3d 1235 (9th Cir. 2005), aff'g in part, rev'g in part,
352. Landrigan v. Schriro, 441 F.3d 638 (9th Cir. 2006)(en banc).
353. See supra Chart 2; infra app.
354. N.E.2d 151 (Ohio 1998).
355. Id. at 165.
356. Id.
357. *2 (Conn. Super. Ct. June 20, 2000).
358. Id. at 1.
359. Id. at 3-6.
360. Id. at 11.
361. Id.
362. See supra Chart 3; infra app.
363. 0 WL 973104, at 1.
364. Id. at 11.
365. N.E.2d 452 (III. App. Ct. 1996).
366. Id. at 458.
367. Id.
368. Id.
369. See Billiot v. State, 655 So. 2d 1, 13 (Miss. 1995) (stating that the expert's testimony, was not outcome-determinative, although the testimony reflected the broadest and most recent research on the defendant).
370. Id. at 17.
371. Id. at 13.
372. N.E.2d 960 (III. 1998).
373. Id. at 970.
374. S.W.3d 24 (Tex. Crim. App. 2004).
375. Id. at 30.
376. No. CR 97010866S, 2000 WL 973104 (Conn. Super. Ct. June 20, 2000).
377. Id. at *11.
378. Id.
379. S.E.2d 61 (Ga. 1995).
380. See supra note 12 and accompanying text.
381. See Denno, supra note 2, at 254 (outlining the political and moral concerns over genetics evidence);
382. see also supra note 12 (discussing potential abuses in the context of the Mobley case);
383. infra note 189 (discussing potential abuses in the context of the 1995 University of Maryland conference on The Meaning and Significance of Research on Genetics and Criminal Behavior).
384. See supra Part IV; infra app.
385. Few conferences on the topic of genetics and crime have occurred since the Ciba symposium. For example, shortly after the Ciba symposium took place, the University of Maryland held a conference on The Meaning and Significance of Research on Genetics and Criminal Behavior. David Wasserman, a legal scholar and organizer of the conference, noted at the time, "There are a hell of a lot of people attending this conference who think the dangers of genetic research are as great in the long term as the dangers of atomic energy." Pezzella, supra note 3;
386. see also Wade Roush, Conflict Marks Crime Conference, 269 Science 1808, 1808 (1995) ("The [Maryland] conference ... has been protested, canceled, rescheduled, and otherwise dogged by controversy ever since it was first planned...."). Previously, the conference had been cancelled because of the controversial nature of the topic.
387. Abraham, supra note 2 ("In 1992, just a year before Mr. Summer seized on the Dutch family study, the U.S. National Institutes of Health cancelled a conference on crime and genetics at the University of Maryland after black groups protested that such research was racially motivated.");
388. Cookson, supra note 16, at 8 ("Public pressure forced the US National Institutes of Health to cancel a conference on [genetics and behavior] in 1992 after opponents of the research detected racial overtones in some of the proposed contributions.");
389. Pezzella, supra note 3 ("Even participants [of the Maryland conference] found the meeting somewhat distasteful. Paul R. Billings, a professor at Stanford University ... said he feared the current concentration on genetics could bring back the kind of eugenics movement that was espoused by the Nazis.");
390. Richard W. Stevenson, Researchers See Gene Link To Violence But Are Wary, N.Y. Times, Feb. 19, 1995, at 29 ("[The Maryland] conference was called off after critics said that it was too accepting of the idea that inherited personality traits were the primary causes of crime and violence and that it would promote the notion that criminals could be identified by genetic markers.");
391. Tom Wilkie, Scientist Denounces Criminal Gene Theory, Independent (London), Feb. 13, 1995, HOME, at 2 ("'[The Maryland conference] was seen as overtly racist.'").
392. This confusion was particularly apparent at the time of the Stephen Mobley case. Some news media referred to the genetics evidence as a culpability defense, not as a basis for mitigation. See Moosajee, supra note 12, at 213;
393. Robert Davis, 'We Live in an Age of Exotic Defenses', USA Today, Nov. 22, 1994, at 1A ("Stephen Mobley blames his genes for making him kill .... [E]xperts say these defenses are typical of the bizarre and unusual rationales that increasingly are being heard in courtrooms across the USA as defendants try to find something - anything - to blame.");
394. Felsenthal, supra note 3 ("In a novel and highly controversial defense, [Mobley's lawyers] are arguing that Mr. Mobley's genes may have predisposed him to commit crimes.");
395. Holmquist, supra note 2;
396. Marrin, supra note 2.
397. But see Abraham, supra note 2 ("[P]eople are concerned [the argument] nullifies the idea of free will and responsibility. But I'm not using it as a defence, per se, but as a mitigating factor - you know, 'If you're thinking about putting this guy to death, think about this.'") (quoting Daniel Summer);
398. Connor, supra note 2 ("'There is no legal defence to his crime,' says ... Mobley's attorney. 'There is only the mitigating factor of his family history.'"). On occasion, the media also assumed Mobley founded his appeal on having a genetic disorder, although the appeal was based on the denial of his motion for funding to test for any genetic disorder.
399. See Boseley, supra note 3;
400. Malik, supra note 12.
401. S.E.2d 738 (S.C. 2004),
402. cert. denied, South Carolina v. Von Dohlen, No. 04-937, 2005 U.S. LEXIS 2695 (U.S. Mar. 21, 2005).
403. Id. at 741-46.
404. See also supra notes 154-55 and accompanying text (discussing Hendricks v. Calderon, 864 F. Supp. 929 (N.D. Cal. 1994),
405. aff'd, 70 F.3d 1032 (9th Cir. 1995)
406. and Fudge v. State, 120 S.W.3d. 600 (Ark. 2003)).
407. See also infra app.
408. See, e.g., Landrigan v. Stewart, 272 F.3d 1221 (9th Cir. 2001),
409. vacated, reh'g en banc granted, 397 F.3d 1235 (9th Cir. 2005), aff'g in part, rev'g in part,
410. aff'g in part, rev'g in part, Landrigan v. Schriro, 441 F.3d 638 (9th Cir. 2006) (en banc);
411. Mobley v. State, 455 S.E.2d 61 (Ga. 1995);
412. People v. Franklin, 656 N.E.2d 750 (III. 1995);
413. State v. Ferguson, 20 S.W.3d 485 (Mo. 2000).
414. People v. Hammerli, 662 N.E.2d 452, 452 (III. App. Ct. 1996);
415. Cauthern v. State, 145 S.W.3d 571 (Tenn. Crim. App. 2004).
416. Hall v. State, 160 S.W.3d 24, 26 (Tex. Crim. App. 2004),
417. cert. denied, Hall v. Texas, No. 04-8762, 2005 U.S. LEXIS 5073 (U.S. June 27, 2005).
418. Turpin v. Mobley, 502 S.E.2d 458, 463 (Ga. 1998).
419. Landrigan, 272 F.3d at 1228 n.4.
420. Id. at 1229.
421. State v. DeAngelo, No. CR 97010866S, 2000 WL 973104, at *11 (Conn. Super. Ct. June 20, 2000).
422. Denno, supra note 2, at 253-54;
423. see also supra note 72 and accompanying text (discussing the five stated problems concerning the use of genetics evidence in criminal cases).
424. See supra note 81 (listing the ways that genetics evidence validates the existence of a serious condition); infra app.
425. See infra app. (listing Alley v. State, 958 S.W.2d 138, 142 (Tenn. Crim. App. 1997)
426. and Billiot v. State, 655 So. 2d 1, 8 (Miss. 1995)).
427. See supra note 68 and accompanying text.
428. S.E.2d 61 (Ga. 1995).
429. F.3d 1221 (9th Cir. 2001),
430. vacated, reh'g en banc granted, 397 F.3d 1235 (9th Cir. 2005), aff'g in part, rev'g in part,
431. Landrigan v. Schriro, 441 F.3d 638 (9th Cir. 2006) (en banc).
432. See Denno, supra note 2, at 254;
433. supra note 122 and accompanying text (discussing the double-edged-sword issue in the context of the Landrigan case).
434. Roper v. Simmons, 543 U.S. 551 (2005).
435. Id. at 578 ("The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.").
436. Id. at 569-70.
437. Id.
438. See supra note 190 and accompanying text.
439. See supra note 80 and accompanying text.
440. F.3d 1221 (9th Cir. 2001),
441. vacated, reh'g en banc granted, 397 F.3d 1235 (9th Cir. 2005), aff'g in part, rev'g in part,
442. Landrigan v. Schriro, 441 F.3d 638 (9th Cir. 2006) (en banc).
443. See supra note 118 and accompanying text.
444. See supra note 117 and accompanying text.
445. See supra note 75 and accompanying text.
446. Mark Curriden, His Lawyer Says It's in the Killer's Genes, Nat'l L.J., Nov. 7, 1994, at A12.