Passing Judgment on the Verdict

by Siegfried Othmer | December 8th, 2006

beachLos Angeles has been riveted over the last few months by the trial in Santa Monica of an elderly driver who mowed down numerous bystanders at an open-air farmer’s market, killing ten people and wounding nearly 70, many of them seriously. His car traveled over 1000 feet through the market, managing to avoid all encounters with parked vehicles along the way and hitting only people. The driver, George Russell Weller, was at a loss to explain what happened, but laments “his contribution” to the deaths. At the time of the tragedy, he was 86 years old, having first learned to drive in a Model T.

There was controversy around whether there should be a trial at all, that it would be difficult to find such an elderly person morally culpable. Weller himself may have opened the door with his own behavior after the event. Weller did not testify at the trial, so one must resort to his early utterances to police after the incident. He sounded “contrite, bewildered, and uncomprehending.” The defense contended that he had one grand, monumental senior moment in which he hit the gas rather than the brake, and in his panic was unable to correct himself. According to Weller’s own words, he tried everything that could be done to an automobile to bring it to a halt: I tried to put on the foot brake; I tried to take my foot off the gas; I tried to jab the knob into park. The prosecution contends that Weller needs to take responsibility for his actions, which to many seemed entirely too purposeful to be dismissed as pedal error. Further, they observe that he has shown no remorse, as if he himself were little more than a witness to what happened. Hence the trial.

Weller had just minutes before been involved in a minor fender bender with his automobile, and may have just been trying to get away from the scene. The defense did not challenge this, but considered it further grounds to postulate a state of disorientation from which the man was unable to recover. Another driver in the vicinity recalls seeing the Weller car moving erratically some hours prior to the event. Also, there was a fender bender a couple of weeks prior in which Weller was clearly at fault.

Expert testimony on the matter of pedal error among the elderly spoke to a disconnect between higher executive function and motor control. A state of panic was described as being “frozen in a trance-like state…you press the brake… and when that doesn’t work you press harder.” It did not help that half-way through the airbag deployed, which can be disorienting all by itself. It knocked his hands off the wheel and his feet off the pedals.

At the trial, witnesses report that the driver appeared intent, and that at times his car reached high speeds of close to 40 miles per hour, covering most of the 1000 foot trajectory in nominally 20 seconds. They also describe him repeatedly hitting the accelerator, as well as steering around any parked vehicles. While striking as many as 70 pedestrians he managed to avoid dozens of parked vehicles. Active steering had to have been involved. By the time the car finally came to a halt, one dead victim was draped across the hood, and another was caught under the wheels. Finally, witnesses described him as surly after he stepped out of the car, and said that people should just have gotten out of the way. One witness described seeing a smirk on his face. Another described a hateful, arrogant smirk. On the other hand, by the time he stepped out of his car it was also surrounded by quite a number of very angry people who were yelling at him and calling him a murderer.

The trial found some Highway Patrol investigators openly crying during their testimony–the carnage they had witnessed was so unprecedented. The judge even barred a number of crime scene photos from being shown. On the other hand, yet other officers testified for the defense: This was a tragedy, but it was not a crime. The jury was in conflict, but ultimately found the defendant guilty of the more serious charge of felony manslaughter, i.e. of acting with gross negligence, as opposed to the lesser charge of misdemeanor manslaughter.

Then the judge weighed in. He refrained from sentencing the frail and wheelchair-bound Weller to prison at this point. But his words were harsh. “…I will never understand his stubborn and bullheaded refusal to accept responsibility and help put this matter to rest for everyone–including himself.” He railed against Weller’s “enormous indifference” and “unbelievable callousness.” The judge concurred with the jury that collectively the actions of Weller must be judged as intentional. “There were places in the farmer’s market where Weller literally threaded the needle.”

Finally, the defense came back in public comment afterwards to complain that the whole trial had been a waste of time. Weller had not even been in court most of the time to hear the testimony presented. Yet the prosecution maintains that a useful public purpose was served even if Weller doesn’t do time in prison. They had not advised the judge at all on sentencing.

The trial raises the issue poignantly of how we as a society assign moral responsibility. Weller was clearly the driver responsible for the event, but was he also morally culpable? That was really the issue for the jury. The more we know about how human behavior actually comes about, the more murky this issue becomes. And the more complex it becomes when physical, mental, and emotional deterioration enter the picture, the less it seems appropriate to have to compress all this complexity into a binary judgment of “guilty” or “not guilty.”

Once the isthmus of such a narrow choice point is past, matters are once again allowed to be complex, and the judge has full discretion as to the continuing fate of Mr. Weller with respect to mental health care and prison time. The choice point was essentially to give society the right to intervene in this person’s private sphere. A long trial should not have been necessary to establish that. Had the matter of “guilt” not been the fulcrum of the whole matter, Weller would no doubt have agreed at once that he needed help. So the trial was really all about the issue of moral responsibility and of accountability for our actions.

Those of us who do neurofeedback have perhaps a unique vantage point from which to consider this larger issue of moral agency. We see empathy emerging in the most cold-blooded and scary of individuals. We see rage calming down in the perpetually rageful child. We see the propensity to anger dissipate. We see emotional bonding where it did not exist before. The difference before and after must lie either in establishing the functional connectivity to our emotional circuitry in first instance, or in re-establishing the connectedness to the ground of our own emotional being.

And if this functional connectivity needs to be explicitly learned at the outset, either in the course of ordinary childhood development or aided by neurofeedback, then it is quite possible to envision this learning falling apart as part of the aging process. We are all too aware of elderly individuals becoming disagreeable, argumentative, hostile, aggressive, and essentially toxic in their interactions with other people.

Such a process of functional deterioration is usually gradual, so the early signposts are available to the skilled observer. To get at this problem we need to be focused on process rather than on a singular event. A trial is totally unsuitable for this because it limits access to information about the past. It is the ultimate in “event-focus,” and hence close to the ultimate in irrelevance.

The whole flourishing enterprise of crime and punishment can be seen as misdirected the moment we appreciate the role of the brain in maintaining our status as reliable moral agents. On the other hand, the pageantry of good and evil is so compelling that we must watch all of its nuances. Talking about malfunctioning brain circuits can drain the drama out of anything seen on Law and Order.

There is hope, however. Just the other day, a Law and Order segment covered Tronick’s “still face” experiments, in which an infant shows increasing alarm over the suddenly un-responsive face of the caregiver–all in the space of a minute. Attachment is a learned behavior, but the learning is hardware-based and it can ultimately fall apart on us as part of the aging process or through intervening trauma. That’s a problem for us in the brain rehabilitation business, not for the courts.

Passing Judgment on the Diagnosis

Just as the verdict rendered in the above case can be seen as a “reductio ad absurdum” of a highly complex phenomenon, there is one other area in which a similar ritual is indulged, and it is even closer to home. It is the matter of formal diagnosis of mental illness. An exceedingly complex phenomenology with a lifetime of history behind it is somehow distilled at one moment in time to the binary judgment of whether a person is or is not ADHD, Tourette’s, OCD, or bipolar. And as soon as the wormhole of a formal diagnosis has been wriggled through, matters are allowed once again to assume their full complexity.

Is it not time to acknowledge the inherent complexity of all these model constructs we call diagnoses? With such acknowledgement must necessarily come an abandonment of binary judgments. And when such binary judgments are abandoned, so must be the binary decision about whether to offer services. We are increasingly aware of the “observables” that accompany the slide into dysfunction. We also know that “early intervention” has a payoff. The logic as well as the morality of this situation are clear: Access to mental health services must be universal–just as we take it for granted that access to education should be universal.

The immorality of our present arrangements is put in sharp relief within the field of education itself. It is typically required that learning disabled children must be two years behind grade level to be “diagnosed” and to be offered special services. Yet no one doubts that the LD child, left to his own devices, just falls further and further behind. What is gained in waiting for an arbitrary threshold to be crossed before we offer the help we know is needed? This policy is madness on a societal scale. One can similarly question our whole diagnosis regime in mental health.

Offering universal access to educational support services need not overwhelm the system at all. It is more expensive not to solve the problem than to address it, certainly for the society as a whole (which is how the accounting should be done). The same goes for the entire realm of mental health. We now know that nearly all mental disorders can be favorably influenced, if not entirely remedied, by means of a self-regulation strategy. Such a strategy can largely be implemented by the educated consumer, with only minimal ongoing professional support. Self-regulation should be thought of by analogy to personal hygiene. It is necessary in order for a community to function, but it is largely a personal responsibility.

So we return, finally, to the matter of Mr. Weller. What if this increasingly irascible fellow had been offered neurofeedback along the way, not because he was deemed mentally ill but because it helps older brains function at their best? He would not ask, “Why should I do this?”–because all his elderly friends would be doing it also for one reason or another. It would be as natural a part of his routine as taking his supplements and taking his daily walk.

Right now our discipline at large is living the bad version of “It’s a Wonderful Life.” First the self-regulation technologies are trivialized by the mainline professions for nearly forty years; then there is an unseemly scrap about who gets to control them; practitioners who have stepped into the breach to serve the public are pilloried and harassed by self-appointed guardians of the guild; intellectual regimentation on how this work is to be done descends like a toxic cloud over the field; balkanization of the technology leads to mutual disparagement; etc.

But at the same time we have also been privileged to witness the good version of “It’s a Wonderful Life.” Creative people devise a number of ways to cue the brain toward better behavior. The whole field of mental health progressively opens up to us within one professional lifetime. Practitioners of all stripes come from far and wide to learn the new techniques. More than 100,000 folks are helped over the course of a year, most of them permanently. Productive lives are being salvaged. People are discovering that they can help themselves with all manner of technologies that can influence brain function favorably. They don’t need to accommodate to the limitations of their brains; nor do they need to submit passively to medical ministrations. One might even say we have a revolution on our hands–the information revolution turned inwards upon ourselves. We are scoping out the cornucopia of self-regulation and of self-repair.

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