Posted May 01, 2004 09:28 pm CDT
A controversial new technique, known as a brain fingerprinting test, purportedly shows that Slaughter has no knowledge of certain details of the crime about which the real perpetrator would have to have known. “To me, this test proves that Jimmie Ray Slaughter is innocent,” says Norman, Okla., lawyer Robert Jackson, one of Slaughter’s appellate attorneys.
Slaughter has claimed ineffective assistance of counsel, an issue unrelated to the brain scan, in a petition for certiorari with the U.S. Supreme Court. The court was expected to act by the end of March, according to Jackson, who does not anticipate the justices will accept the case. Once the Supreme Court acts, he says, the Oklahoma attorney general will probably ask the state Court of Criminal Appeals to set an execution date within 60 days.
But Jackson says he’s hoping the results of the brain fingerprinting test will persuade the appeals court to stay the execution and send the case back to the trial court for a hearing on what he contends is newly discovered evidence of Slaughter’s actual innocence.
“We’re looking to prove that brain fingerprinting meets the reliability criteria necessary for its admission in the courts of Oklahoma,” he says.
Brain fingerprinting, developed by Lawrence Farwell, the chairman and chief scientist at Brain Fingerprinting Laboratories in Seattle, is said to be a way of detecting whether specific information is stored in a person’s brain.
Here’s how it works in a criminal context, according to Farwell: A suspect sits in front of a computer wearing a headband equipped with special sensors. Certain words and pictures flash briefly on the screen, at least some of which are relevant to the crime being investigated. If the suspect recognizes the information, it triggers a specific electrical signal in the brain that can be measured and analyzed before the suspect has a chance to affect the output.
Slaughter is awaiting execution for the 1991 shooting, stabbing and mutilation of his former girlfriend, Melody Wuertz, and the shooting of their 11-month-old daughter, Jessica.
But the brain fingerprinting test, administered to Slaughter in February at the maximum security prison in McAlester, allegedly shows that Slaughter didn’t know which room Melody’s body was found in, where in the room her body was lying or where in the house Jessica had been shot.
Farwell, who administered the test, refuses to say that the results prove Slaughter is innocent, saying that it’s a determination for a judge and a jury to make. But he says the test clearly shows that Slaughter didn’t know some of the most salient features of the crime, which strongly suggests he was not present at the crime scene.
The result of the test, says Farwell, was that the crucial information was absent in Slaughter’s brain.
Former Oklahoma County Assistant District Attorney Richard Wintory, the lead prosecutor in the case against Slaughter, says he has “absolutely no doubt” that Slaughter is responsible for the murders of his former girlfriend and his daughter. Even if Slaughter didn’t kill them himself, Wintory says, the evidence proves that he had them killed. “The evidence as to his guilt is overwhelming.”
Wintory, now a Pima County, Ariz., deputy county attorney, also says the results of the brain fingerprinting test conducted on Slaughter don’t prove anything. Even if Slaughter didn’t commit the murders himself, Wintory says, he would have learned all of the essential details of the crime up to and during the trial of the case, which lasted 51⁄2 months and included photographs, videos, a computer re-creation and even the blood-stained carpeting from the house where the murders took place.
“Brain fingerprinting isn’t science. It isn’t even junk science. It’s just junk,” Wintory says.
Brain fingerprinting evidence was ruled admissible in Iowa in 2001 in the case of Terry Harrington, who was serving a life sentence for the 1977 murder of a retired police captain who was moonlighting as a security guard at an automobile dealership.
But the judge stopped short of granting Harrington a new trial on the grounds that the brain fingerprinting evidence would not have changed the outcome of his 1978 trial.
Last year, however, the Iowa Supreme Court reversed Harrington’s conviction on the grounds that prosecutors suppressed exculpatory evidence. Harrington v. State, 659 N.W. 2d 509.
When it comes to brain fingerprinting, though, James Starrs, a professor of law and forensic science at George Washington University, remains a skeptic. Starrs says his chief objection to Farwell’s claims is that one has to rely on Farwell’s subjective, nonpeer-reviewed judgment as to what the brain scan tells him. “I know of no scientific article indicating that [brain fingerprinting] has any scientific reliability.”
In addition, Starrs says he objects to the fact that Farwell is apparently running a one-man show. “He and he alone seems to be a repository of knowledge on the subject.”
Andre Moenssens, a professor of law emeritus at the University of Missouri-Kansas City, who wrote a law review article on the subject, says brain fingerprinting is often touted as a super-polygraph. “Perhaps it is, but more experience with the method is still required to determine whether it is better than, or different from, the polygraph,” he says.
Moenssens says the science underlying brain fingerprinting is solid. It is in the methodology fashioned to observe and interpret the responses that weaknesses may exist, he says.
“Perhaps the greatest impediment to widespread use is that success with the technique depends on a cumbersome and time-consuming pre-examination investigation to discover what suitable auditory or visual stimuli might exist upon which the technique’s success depends,” he says.
In the final analysis, Moenssens says, it must be remembered that brain fingerprinting cannot establish guilt or innocence. It can only determine whether certain relevant knowledge exists in the memory of the person being tested.
“Even if the knowledge is found to exist in the brain, the test cannot determine how or when that knowledge was acquired,” he says. “Despite the sound scientific underpinnings, these uncertainties handicap widespread practical acceptance.”