Use of controversial ‘brain-mapping’ technology stymied in Florida courts

Two years ago, a controversial “brain-mapping” technology — allowed into evidence by one Miami-Dade judge — helped spare convicted Kendall murderer Grady Nelson from the death penalty.
But the prospect of widespread use of the technology in criminal court has dimmed as, one by one, Florida judges have refused to allow use of the “QEEG,” which some defense lawyers say explains a propensity for violence by illustrating brain trauma.

The latest South Florida case: a judge declined to allow defense lawyers to present the technology to jurors in a possible death penalty hearing for Dennis Escobar, accused of murdering a Miami cop in 1988.

Miami-Dade Circuit Judge Leon Firtel last month said the way defense experts interpret the brain-mapping technology was “not accepted” by the scientific community.

The decision — along with a similar ruling by another Miami-Dade judge, and one in Charlotte County on Jan. 2 — has vindicated prosecutors who have long maintained that the QEEG, or Quantitative Electroencephalogram, is unreliable.

“I’m hopeful that we can close the door on this chapter of junk science,” Miami-Dade State Katherine Fernández Rundle said. “It’s unnecessary spending of precious dollars needed elsewhere in the courts system.”

Terry Lenamon, who represents the accused Charlotte County killer, says he still believes the QEEG has a future in Florida criminal courts.

“We are at a time that science is moving forward in a way that is inconsistent with old, traditional methods,” said Lenamon, who also represented Grady in 2010.

“The death penalty is final. Keeping relevant information such as the QEEG from jurors will be problematic and costly. If the Florida Supreme Court decides that these judges are mistaken about the use of the QEEG, it will be yet another impediment to the justice system.”

Electroencephalogram tests, known as EEGs, record electrical energy in the brain through sensors attached to the head. The results are displayed as squiggly lines on paper, and the tests have been in use for decades.

In recent years, computers have been used to create the “Quantitative EEG,” known as QEEG, which translates the results into a digital image of a patient’s brain to help analyze brain-wave frequencies. The technology is often used to detect brain damage in stroke and epilepsy patients.

The use of the QEEG has been debated for years within the medical and neurological science communities.

No state criminal court had allowed jurors to consider the QEEG until the case of Grady Nelson, who was convicted of first-degree murder in July 2010. Nelson stabbed his wife 61 times, then raped and stabbed her 11-year-old mentally disabled daughter.

His defense lawyers said the QEEG showed Nelson’s brain damage and explained why he had a propensity for violence and acting impulsively.

After Nelson’s conviction, Judge Jacqueline Hogan Scola ruled that the QEEG’s “methodologies are sound, the techniques are sound, the science is sound.”

“I feel comfortable that the average juror can figure out what they believe and disbelieve, just like any other battle of the experts,” Scola said.

During the penalty phase, a defense doctor presented jurors with a computer slide show replete with colorful graphics of the brain, and explanations of the effects of damage to the frontal lobe. Two months later, jurors split, 6-6, on whether Nelson should be executed — which, by law, meant an automatic life sentence.

Two of three jurors interviewed by The Miami Herald afterward said the QEEG evidence swayed them.

Afterward, lawyers in two separate, high-profile murder cases tried to use the QEEG. In September, at an unusual hearing, judges in both cases sat together on the bench to hear about 12 hours of rival expert testimony.

Prosecutors Reid Rubin and Christine Zahralban argued that the defense’s use of QEEG was unreliable and misleading as a way of explaining a defendant’s past criminal behavior.

The first defendant was Joel Lebron, one of five Orlando men who kidnapped, gang-raped and murdered a South Miami Senior High School student in 2002.

Despite Scola’s ruling, Judge William Thomas declined to allow the QEEG. Jurors convicted Lebron of murder in September. During the penalty phase, lawyers still argued that their client had brain damage caused by a childhood car accident, leaving him prone to impulsive behavior.

The argument failed — jurors, by a 9-3 vote, recommended the death sentence. Lebron is awaiting final sentencing.

Judge Firtel, in the case of Escobar, held an additional hearing, issuing his ruling against the QEEG on Dec. 27.

Escobar and his brother are accused of fatally shooting Officer Victor Estefan in 1988. In 1991, they were convicted and sentenced to death. The Florida Supreme Court overturned their convictions because the brothers, who blamed each other for the murder, were not tried separately.

Defense lawyer Kellie Peterson said the QEEG has been used by the U.S. Department of Veterans Affairs and other agencies to assess brain injuries and plan treatment for patients. In Escobar’s case, the technology would not have been used to explain a propensity for violence, but just to show — in conjunction with other expert testimony — that Escobar had brain damage, she said.

“If it can help society and children and war veterans determine how a person thinks, then I think a jury deserves to have an objective measure of how a defendant thinks,” Peterson said.

Peterson’s office, the state-funded Regional Conflict Counsel, spent more than $40,000 on QEEG-related defense work. In the Escobar case, prosecutors say two of three doctors hired to rebut the QEEG have billed for $45,000.

Escobar is scheduled for trial Feb. 4. If convicted, he could appeal on the grounds that the QEEG should have been admitted.

In early July, Charlotte County, lawyers also tried to use the technology in the 2007 arson-murder case against Vernon Stevens. In a 14-page order, Circuit Judge Christine Greider found that “the majority of the relevant scientific community does not endorse the QEEG, including the American Academy of Neurology and the American Clinical Neurophysiology Society.”

She also found it “persuasive” that judges, including Thomas and Firtel, had disallowed the QEEG in recent years.