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The Daily Digest, 2/10/11

If you’ve been following along, you already know that in some cases defense counsel are choosing not to introduce evidence of cognitive neuroscience or genetic defects because of its double-edged potential. Convincing a judge or a jury that the defendant is predisposed to act the way that he did may backfire against, rather than help, a criminal defendant.

In fact, states are already using cognitive neuroscience and behavioral genetics to substantiate predictions of future dangerousness. Whether for death penalty aggravators or the diagnosis of psychopathy, neurological and biological predisposition evidence is being used by prosecutors and not just the criminal defendant.

The first case today is representative of the several that I have come across in which the civil commitment of a “sexually violent predator” (“SVP” or a sexually dangerous individual) has been successfully bolstered through the use of neuropsychological testing by the state. By all indications, this use of cognitive neuroscience is on the rise.

The second case is a bit of GINA bummer, since the pro se litigant botched the case. The Genetic Information Nondiscrimination Act went into effect on November 21, 2009. It largely tracks to Title VII, but has an interesting additional feature that has proven a bit thorny. It makes illegal the mere acquisition (although not inadvertent) of genetic information by an employer. As a result, over 200 cases are pending with the Equal Opportunity Employment Commission (EEOC), largely based on improper acquisition. None of these cases have yet to make it to trial, and it’s unclear what the damages will be in these cases, but it will be an interesting area to watch nonetheless.
Although we aren’t there yet, I suspect that as more information becomes available linking genetic variation to behavioral variation, there will be greater interest in acquiring, and potentially discriminating between individuals based on their genetic information. Although the case below is a procedural bummer (a pro se litigant who failed to do all sorts of procedural things with respect to his claim), there is an interesting substantive point it raises. While discrimination is always difficult to prove, discrimination based on genetic information may be even more difficult.

Neuropsychological Testing, Civil Commitment, and Sexually Dangerous Individuals
Whelan v. A.O., 2011 WL 386958 (N.D. 2011)
The petitioner appeals the trial court’s order finding that he remains a sexually dangerous individual and continuing his civil commitment to the care, custody, and control of the executive director of the Department of Human Services. While the petitioner does not contest the court’s conclusion that he remains sexually dangerous individual, he argues that the trial court erred in concluding that the treatment he was receiving was the “least restrictive available treatment facility.” In the annual evidentiary hearing on continuing civil commitment, the state presented evidence of a court-ordered neuropsychological evaluation of the Petitioner’s that he had impaired cognitive functioning. After reviewing the experts’ reports and listening to witness testimony, the trial court concluded that petitioner’s treatment placement was the most appropriate and least restrictive program available to him, “given his diagnosis of mild mental retardation and his level of cognitive functioning.” The court of appeals affirmed

Genetic Discrimination Under GINA: The Problem of Proof
Citron v. Niche Media/Ocean Drive Magazine, 2011 WL 381939 (S.D. Fla. 2011)
This is one of the first published opinions regarding allegations of genetic information discrimination in employment brought under the newly effective Genetic Information Nondiscrimination Act (“GINA”) of 2008. In this case, pro se plaintiff alleges that defendant discriminated against him due to his genetic information, in violation of the GINA (and due to his gender, in violation of Title VII of the Civil Rights Act). The case appeared before the court on the plaintiff’s motion to proceed with his claim without payment of the filing fee, upon which the court may screen the complaint to make certain the action is not frivolous. In his complaint filed with the Equal Employment Opportunity Commission, plaintiff alleges that he wasn’t employed or advised of any job openings by defendant “due to [his] gender/male and my genetic information.” After reviewing the complaint, the court found that plaintiff failed to allege that defendant required plaintiff to take a genetic test, that defendant otherwise obtained plaintiff’s genetic information or what specific genetic information defendant discovered that led it to deny him employment. The court also noted that plaintiff failed to allege when the violation occurred, making it unclear whether GINA was in effect at the time. The court denied plaintiff’s motion and dismissed his complaint for failure to state a claim.

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