In 1991, the police were called to East 72nd St. in Manhattan, where a woman's body had fallen from a twelfth-story window. The woman’s husband, Herbert Weinstein, soon confessed to having hit and strangled his wife after an argument, then dropping her body out of their apartment window to make it look like a suicide. The 65-year-old Weinstein, a quiet, unassuming retired advertising executive, had no criminal record, no history of violent behavior—not even a short temper. How, then, to explain this horrific act?
Journalist Kevin Davis uses the perplexing story of the Weinstein murder to present a riveting, deeply researched exploration of the intersection of neuroscience and criminal justice. Shortly after Weinstein was arrested, an MRI revealed a cyst the size of an orange on his brain’s frontal lobe, the part of the brain that governs judgment and impulse control. Weinstein’s lawyer seized on that discovery, arguing that the cyst had impaired Weinstein’s judgment and that he should not be held criminally responsible for the murder. It was the first case in the United States in which a judge allowed a scan showing a defendant’s brain activity to be admitted as evidence to support a claim of innocence.
The Weinstein case marked the dawn of a new era in America's courtrooms, raising complex and often troubling questions about how we define responsibility and free will, how we view the purpose of punishment, and how strongly we are willing to bring scientific evidence to bear on moral questions. Davis brings to light not only the intricacies of the Weinstein case but also the broader history linking brain injuries and aberrant behavior, from the bizarre stories of Phineas Gage and Charles Whitman, perpetrator of the 1966 Texas Tower massacre, to the role that brain damage may play in violence carried out by football players and troubled veterans of America’s twenty-first century wars. The Weinstein case opened the door for a novel defense that continues to transform the legal system: Criminal lawyers are increasingly turning to neuroscience and introducing the effects of brain injuries—whether caused by trauma or by tumors, cancer, or drug or alcohol abuse—and arguing that such damage should be considered in determining guilt or innocence, the death penalty or years behind bars. As he takes stock of the past, present and future of neuroscience in the courts, Davis offers a powerful account of its potential and its hazards.
Thought-provoking and brilliantly crafted, The Brain Defense marries a murder mystery complete with colorful characters and courtroom drama with a sophisticated discussion of how our legal system has changed—and must continue to change—as we broaden our understanding of the human mind.
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We Found Something in Mr. Weinstein’s Brain
Herbert Weinstein was the only person who could explain to police what had happened on that winter afternoon inside his Upper East Side apartment. The other person was dead.
She had fallen twelve stories through the cold January air and now lay sprawled on the sidewalk in front of their twenty-eight-story apartment building at 220 East 72nd Street near Second Avenue, a few doors west of the Catholic Church of St. John the Martyr. Barbara Weinstein—fifty-six years old, Mr. Weinstein’s second wife, whom he married after his first wife died of cancer, the woman he told everyone he deeply loved—was gone. It looked as if Barbara had hurled herself out the window in a dramatic public suicide.
The case began, as many do, with a call to 911. It was January 7, 1991, about one-fifteen p.m., when people along East 72nd Street -noticed the body on the sidewalk. A short time later New York City police officers Dominick Avallone and Warren Elliott, partners in the Nineteenth Precinct, were called to respond to a “jumper,” police shorthand for a suicide jumper. When they pulled up to the redbrick apartment building, a few officers already were milling around the body of a red-haired woman in a blue nightgown on the sidewalk. Avallone looked up and saw a window open on the twelfth floor. He went into the building and asked the doorman if he knew the woman on the sidewalk. He said he didn’t.
As they headed to the elevators to go up to the twelfth floor, the officers saw a tall, older white-haired gentleman talking to two women in the lobby. The doorman dashed over to the officers and asked them to hold on a minute. In a nervous voice, he pointed to the white-haired man and said that he lived on the twelfth floor and was acting very -suspiciously. Avallone walked over to the white-haired man and asked whether he lived on the twelfth floor. Yes, the man said, he did. His name was Herbert Weinstein. He lived up there with his wife, Barbara.
The officers noticed that Weinstein was holding a briefcase. Was he going somewhere? Weinstein explained that he had been on his way to work but had stopped in the lobby to look for his wife before leaving. She was not in the apartment upstairs, and he didn’t know where she’d gone. The officers listened to his story, then told Weinstein they were going up to the twelfth floor to look around and ask building residents some questions. Would Mr. Weinstein mind coming along? Sure, he said, and they got into the elevator together.
As they stood in the car, Avallone noticed scratch marks on the right side of Weinstein’s face. “What happened to your face?” the officer asked.
“I got it while playing football the other day,” Weinstein said.
Avallone was surprised by this answer. But Weinstein was a big man and seemed to be in good shape, so maybe it was possible.
Weinstein seemed impatient and fidgeted as the three rode up to the twelfth floor. He kept saying that he was late for work and needed to find his wife. Though the woman on the sidewalk had not yet been positively identified, Avallone was pretty sure it was Mrs. Weinstein, but he didn’t let on. The doors opened, and Weinstein escorted the officers into his apartment and down the hallway toward his study. Avallone felt a chilly breeze run through the apartment. As he passed the bedroom, he looked inside and saw that the window onto 72nd Street was open.
Avallone and Weinstein went into the study, which Weinstein used as an office. He was retired from the advertising business but kept a few clients to bring in extra income. Avallone asked Weinstein about his wife. How was she feeling lately? Just fine, Weinstein said. Did she suffer from any physical or mental ailments? None, Weinstein replied. The officer asked how long they’d been married and how they got along. Weinstein pointed to a photo of his wife in the study and said she was quite healthy. “We’ve been married for eight great fucking years,” he blurted out, “and we get along fucking famously.”
Weinstein began to breathe heavily, and the officer asked if he needed medical attention. Weinstein said no, he was fine. Weinstein asked what was going on. Why were there cops all over the place? The officer explained there was a dead woman on the sidewalk. Weinstein asked if it was his wife. Avallone said he didn’t know. Did Weinstein want to call a family member to come over to be with him? Weinstein said yes and paged his thirty-two-year-old son, Nelson, who was at one of the Laundromats he operated in Brooklyn Heights.
When his son called back, Avallone overheard Weinstein say, “Please come over, a terrible accident has happened to Barbara.”
The Weinstein apartment started to get crowded with cops. A -sergeant asked Weinstein if his wife was depressed or was seeing a psychiatrist. Weinstein said no. What about marital problems? Weinstein said their marriage was the envy of many friends. In fact, they never fought. Had Weinstein got the scratches from shaving that morning. “Yes, among other things,” he said.
The sergeant looked around the study. When had Weinstein last seen his wife? he asked. About one-fifteen, Weinstein said, but she had left without kissing him good-bye, which was unusual. Why was the bedroom window open on such a cold day? Weinstein explained that his wife often got warm in the apartment, and the air helped cool the place down.
As the sergeant questioned Weinstein, three more detectives pulled up to the building, took Polaroids of the body on the sidewalk, then went up to the twelfth floor. Detective Denise Jackson noticed some dark stains on the bedroom carpet, which looked to her like blood. She also noticed that the window curtain had been drawn back. Weinstein offhandedly mentioned that his wife might have been feeling a little down lately because they had spent New Year’s Eve home alone after a party they had planned fell through.
Around that time Weinstein’s son, Nelson, arrived. The detectives brought him into the kitchen. Nelson asked the detectives whether his father needed a lawyer.
“He appears to be in control of himself,” one of the detectives said. “He’s a smart man. If he wanted a lawyer, he’d ask for one.”
A few minutes later Detective Frank Connelly arrived and went into the bedroom with the open window; it was getting colder now. He noticed the bloodstains on the carpet near the window and the bed and thought it looked as if someone had tried to clean it up.
Detective Connelly then went to the study to talk to Weinstein. He studied the scratch marks on the man’s face carefully. There was one under each eye, and one over his right eye, as well as on his cheek and chin. Connelly thought they looked fresh, most likely defensive wounds or from a fight.
He asked Weinstein what had happened. Weinstein said he had been in his study working on some advertising contracts when he came out to look for his wife, who had a dental appointment that afternoon. He thought she might have gone to a neighbor’s apartment, then went downstairs to talk to the doorman. That’s when he’d seen the police.
Detective Connelly got a legal pad, wrote something down, and asked Weinstein to review and sign it. He explained that the note would grant permission for the police to conduct a crime scene search of the apartment. Weinstein signed it.
Connelly left the room, then returned with a card on which was printed the Miranda warnings. He read Weinstein his rights and asked if he understood. Weinstein seemed to get nervous and shaky, but he said he’d be willing to answer the detective’s questions.
“So, Mr. Weinstein, how did you get those scratches on your face?” Connelly asked.
“Shaving,” Weinstein said.
“That seems unlikely,” the detective said.
Weinstein told the detective he had sensitive skin.
“C’mon,” Connelly said, “that seems unlikely, too.”
“Okay,” Weinstein said. “I got the scratches while watching a football game and poked myself while cheering.”
Connelly said those scratches didn’t look like they came from either shaving or cheering. They looked like a person had scratched him.
Weinstein got up and looked at himself in a mirror.
“Where did the stains on the carpet come from?” Connelly asked.
“I don’t know,” Weinstein said.
Connelly said they were going to check Barbara Weinstein’s blood type and check for skin under her fingernails to see if it matched Mr. Weinstein’s. He then left the study. Another detective told Connelly that the crime scene detectives had found blood on a slipper. And there was something else. A witness across the street on East 72nd told police she had seen a man throw a woman out the window.
Connelly went back to the study. “Mr. Weinstein, do you know why there’s blood on your slipper?”
“No, I don’t.”
“Mr. Weinstein, we have a witness across the street who said she saw a man throw a woman out the window. Do you know anything about this? Tell me the truth. What happened?”
“What did this witness see?” Mr. Weinstein demanded.
“Why don’t you tell me?”
“I don’t know what the witness saw.”
Connelly again asked Weinstein about the scratches on his face.
Weinstein stood up and put his hands on a chair. Connelly noticed his hand was black and blue and had a spot of blood on it.
Weinstein sat back down and began to unburden himself. They had been arguing about his son, Nelson, he said, and Barbara had been criticizing his weight and his career choices. She was yelling. Weinstein didn’t like it but remained calm. Her temper flared, and she scratched his face, and then he hit her, he said. He hadn’t meant for it to go that far. She fell to the bed, then to the floor. He grabbed her by the throat. She was motionless, and he realized she was dead.
In a panic, he began to clean up the mess, using paper towels to wipe up the carpet. He put the bloodstained bedcovers into a bag and hid them in the front closet. He looked himself up and down and saw no blood on his clothes and so did not change. About fifteen minutes later, he said, he dragged his wife’s body over to the window and threw her out to make it look like a suicide or an accident. It was, he said, a panic-driven, irrational act.
Connelly asked Weinstein to show him where the sheets were stashed, and Weinstein led him to the closet. A few minutes later Weinstein signed his statement. Connelly left the study and told the others what had happened.
Detective Jackson came in and asked Weinstein why he had decided to throw his wife out the window. To cover up the crime, he said. How had he been able to do it? He said he picked her up underneath her arms, dragged her to the window, placed her on the sill, grabbed her legs, and flipped her out.
Satisfied they had their story, the detectives told Weinstein they were going to take him to the Nineteenth Precinct. Weinstein took off a ring and his watch, remarking that he wouldn’t need them where he was going.
Diarmuid White had started his legal career a little later than most of his colleagues who worked criminal cases in the New York Supreme Court building on Centre Street. For seventeen years he had worked in advertising, selling network television airtime. It was a good job, but he thought advertising was pointless and grew bored. With a wife and four children, he had to boost his income. He had a gnawing desire to move into a career with a social conscience that also could be lucrative. Criminal law seemed a good fit. He liked to challenge authority, and he liked the idea of being a watchdog of overzealous cops and prosecutors. When he saw lawyers at work, he thought to himself, “Hey I could do that, and do it even better.”
So at age forty he went to Brooklyn Law School at night while working at his advertising job during the day. In his third year of law school, he landed a job at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, a high-priced firm known for handling well-to-do clients. The firm was headquartered in Buffalo, and White was one of two lawyers based in Manhattan. The other was Herald Fahringer, who had built a reputation as a First Amendment lawyer defending purveyors of X-rated entertainment, including magazine publishers Larry Flynt and Al Goldstein. Fahringer had represented Claus von Bülow, who was acquitted of trying to kill his socialite wife, known as Sunny, and Jean Harris, convicted in the 1980 shooting of Dr. Herman Tarnower, author of The Complete Scarsdale Medical Diet.
With Fahringer as a mentor, White took on criminal cases right away, representing clients accused of everything from murder to stock fraud. On January 7, 1991, he had been at the job for about six years when one of the lawyers in his firm called him to take the case of a Mr. Herbert Weinstein, who had been arrested on suspicion of murdering his wife and was to be arraigned the next morning.
White met his new client in a holding cell a few minutes before the arraignment. He was struck by how unusually calm and unconcerned Weinstein seemed, despite having been charged with murder. The man was emotionless, expressionless, and apparently oblivious to what was happening to him.
White went over the charges against Weinstein and asked him to repeat what he had told police. Weinstein explained that he had confessed. White said that it didn’t matter and instructed Weinstein to plead not guilty. They could discuss it later in more detail and work on building some kind of defense.
Inside the courtroom, Weinstein’s son, Nelson, and daughter, Joni, from his first marriage, were sitting on benches waiting for the proceedings to begin. Weinstein stepped up before the judge to hear the charges. The district attorney charged him with two counts of second-degree murder: one count for intentional murder, the other for depraved indifference to human life. If he was convicted, Weinstein faced the possibility of life in prison. Because he had no criminal past and was not considered a flight risk, the judge set bail at $100,000. Weinstein posted a portion of his bail and was released from Rikers Island. The judge permitted him to live with close friends who pledged to watch over him.
A few days later Weinstein met with White at his Madison Avenue office to discuss his legal options. When he arrived, he was amiable, even cheery. White thought again that Weinstein’s demeanor seemed incongruous with what had just happened—he acted as if this were a business meeting. Weinstein appeared to be a decent man, not a tightly wound person prone to explosive or violent behavior, certainly not a murderer. Yet he seemed oddly disengaged, White thought. It occurred to him that Weinstein might be mentally unstable, perhaps even suffering from a mental disorder. White suggested that he get a psychiatric evaluation.
A week after being released on bail, Weinstein went to see Dr. Daniel Schwartz, director of forensic psychiatry at Kings County Hospital in New York. Schwartz was well known in New York City’s courts and one of the go-to psychiatrists for criminal defendants in insanity cases. He didn’t favor sides. He testified for anyone. Defense lawyers, prosecutors, and judges often called on him to offer his professional opinion on whether defendants were mentally competent to stand trial or met the legal standard of insanity. Schwartz had testified in many high-profile cases, including the murder trials of David Berkowitz, the “Son of Sam” killer; and of Mark David Chapman, who assassinated John Lennon.
Schwartz began by asking Weinstein about his medical history. Weinstein told him he’d been hospitalized in 1948 after experiencing severe headaches caused by some unusual neurological disorder. Besides the headaches, his symptoms included a bit of amnesia and aphasia, or a loss of ability to speak or understand speech. But the symptoms had passed and never returned.
Weinstein described to Schwartz what had happened in the apartment that day with Barbara, explaining that he had remained calm as they argued but lost control when she scratched him in the face. “I couldn’t stop myself,” he told the doctor. Weinstein said he was aghast that he had gone so out of control for the first time in his life.
Schwartz found nothing wrong with Weinstein. In his opinion, the man was articulate, smart, and seemingly in control. He could find no evidence of mental illness, psychopathy, organic mental disorder, or psychosis. He reported to White that Weinstein was fully alert and quite cooperative, though his mood was “neutral.” He noted, however, that Weinstein didn’t show any feelings about his wife’s death, “no manifestation of guilt, depression or anxiety,” as he wrote in his report. Still, Weinstein exhibited no serious type of disordered thinking or delusions, and his judgment seemed to be perfectly intact. Schwartz suggested that Weinstein be further evaluated by a neuropsychologist, who could test him for cognitive, behavioral, and brain dysfunction. It was still possible that Weinstein had some kind of brain disorder.
The neuropsychologist’s exam yielded nothing unusual, though Weinstein’s visual memory was better than his verbal memory, and he had a small left-hand advantage even though he was right-handed. She referred Weinstein for more tests, including a brain scan.
At New York Hospital–Cornell Medical Center he underwent more psychiatric exams, as well as tests of his memory and motor skills. The doctors found no indication of brain dysfunction or mental disturbances, other than his uncharacteristically violent reaction during the fight with his wife. Weinstein’s psych exams revealed nothing unusual, either. When he took the Purdue Pegboard Test, which measures gross motor skills by having patients place a series of pegs into holes during a specified time, he again showed better skills with his left hand than his right, even though he was right-handed.
Finally, Weinstein underwent magnetic resonance imaging (MRI) to see whether an image of his brain would reveal any anomalies. A technician slid him into a tunnel where a powerful magnet and radio waves scanned his brain. The image that appeared on a screen in the next room was stunning. There was a growth the size of an orange over Weinstein’s left temporal lobe.
Table of Contents
Chapter 1 We Found Something in Mr. Weinstein's Brain 5
Chapter 2 Lawyers, Brains, and Colorful Pictures 23
Chapter 3 A Charming Man 31
Chapter 4 The Brain Blame Evolution 41
Chapter 5 Inside Weinstein's Brain 59
Chapter 6 "That's Not My Dad" 67
Chapter 7 A Trip to Iowa 85
Chapter 8 The Young Brain Defense 95
Chapter 9 The Rich Man's Defense 115
Chapter 10 When Neuroscientists Come to Court 123
Chapter 11 The Brain Science Battle 143
Chapter 12 Deadly Tumor 163
Chapter 13 What's a Picture Worth? 173
Chapter 14 Not One Healthy Brain 187
Chapter 15 The Death Penalty Attorney and the Broken Brain 201
Chapter 16 "What Possible Harm Can I Be?" 217
Chapter 17 Defending America's Defenders 235
Chapter 18 The Head-Banger Defense 251
Chapter 19 The Future of Neurolaw and the Brain Defense 267