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Commonwealth v. Yancy10/21/2003
ant's temporal lobe abnormality was "dramatic," but when asked to elaborate, he would not and said, " here's diminished neuronal activity or neuronal function in that temporal lobe. Making the leap to human behavior is not my field of expertise." He also indicated that research in the field is still in its early stages, and that " ur work actually shows that it is rather individual and that not all of us use the same area of the brain for each cognitive task." It was, in fact, Dr. Bursztajn, the psychiatrist, who took this material and transformed it into material that was useful to the defense. The claimed correlation that Dr. Hill could have made between temporal lobe abnormalities and seizure activity was contained in his SPECT scan report that was admitted as an exhibit, and was specific to the defendant.
The defendant seizes on what he describes as Dr. Hill's "ultimate conclusion," where he said, " rom what I can see, there is a reasonable expectation that his seizure activity contributed to his behavior. I can't say that with absolute medical certainty, but there's surely a doubt that his behavior wasn't normal, and that this abnormality in his brain could be associated with this abnormal behavior." Dr. Hill did not testify that the defendant had an organic brain defect that impaired his capacity to deliberately premeditate or specifically to intend the killings. Earlier, when asked if he had an opinion whether the condition of the defendant's temporal lobe was associated with violent behavior, he said he had no opinion. When asked whether he had an opinion as to whether the abnormality could be associated with seizure episodes, he said he did not know, and testified as quoted above. He was answering a question about epilepsy and the defendant's behavior generally, not the circumstances surrounding the killings specifically.
Dr. Hill's testimony would have added little to rebut the testimony of Dr. Kelly. Although he would have contradicted Dr. Kelly's testimony that SPECT was an "older" technology involving lupus diagnoses with testimony that it was an "emerging" technology and that lupus research was not its principal use, it would have added nothing significant. Dr. Bursztajn's testimony was more to the point. Dr. Bursztajn had testified on cross-examination that, although SPECT technology had been in use for a number of years, "in the past two years it has become . . . more and more reliable in terms of the kinds of isotopes that you use to administer and, also, there has been more and more studies done correlating psychiatric and neuropsychiatric tests scanning." Dr. Bursztajn also teaches about the uses of SPECT scans in the field of psychiatry, and the comprehensive and fluid nature of his testimony evidenced familiarity with the technique.
Dr. Kelly testified that the SPECT scan did not show any damage to the defendant's hippocampus or amygdala, although "they were a little out of focus." Dr. Bursztajn had testified that the scan revealed a lesion "in the area of the mesiotemporal lobe where you have connections from the hippocampus, and the amygdala going up to the cortex." Dr. Hill would have testified that those portions of the brain do not appear on the scan. Dr. Kelly did not directly contradict Dr. Bursztajn, but Dr. Hill clearly would have contradicted both, and in the process he could have caused more damage to the defense.
Dr. Kelly testified that the mesiotemporal area of the brain concerns either visual or musical memory or speech and language memory. He thus contradicted Dr. Bursztajn, who testified that this area served numerous functions, including the normal processing of visual and auditory stimuli, but also judgment and emotional memory. Dr.
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