By: Genecks
Date: December 1st, 2013

Many people are being wrongfully prosecuted, because there is a a lack of consideration of the neurobiology and psychology of individuals being prosecuted.

I have read into law in the past year. Furthermore, I have studied the interplay of culpability in allegations of violations of law. One thing that I keep noticing is that prosecutors tend to lack evidence in relation to a defendant’s state of mind. Furthermore, the defense lacks evidence in relation to a defendant’s state of mind. In other words, there is a lack of ability on both the prosecution and the defense to discuss the state of mind of the defendant. I believe in many ways that comes down to the simple fact that there has been a traditionalist view of exclusing psychologists, psychiatrists, and other professionals who work in relation to mental states from being able to testify in relation to an individual’s state of mind. However, I’ve come to realize that many of these aspects are related to neurobiology, specifically the prefrontal cortex.

Here is an article talking about the prefrontal cortex and law: http://www.plosbiology.org/article/info%3Adoi%2F10.1371%2Fjournal.pbio.0050103

Law, Responsibility, and the Brain

Dean Mobbs mail,

Hakwan C Lau,
Owen D Jones,
Christopher D Frith

Published: Apr 17, 2007
DOI: 10.1371/journal.pbio.0050103

What I have also read in relation to the prefrontal cortex, is that it also relates to cognitive empathy, memory, recall, and semantics.

First, I will talk about mistake of law:

For instance, in WILLIAM CHAVERS vs. STATE OF INDIANA (No. 49A04-1211-CR-580) the defendant had made a mistake of fact. However, in a lot of ways, there was a mistake of law made by William Chavers. One of the things that the government likes to do is say “Ignorance of the law is no excuse.” However, be that an individual was ignorant, it acts as the reason an individual did something. Law likes to work and think in terms of “excuses.” However, from a deterministic perspective, excuses are synonymous with the word “reason.”

In William Chavers vs. State of Indiana, a court order was placed on William Chavers in Court 21, which was later dismissed. William Chavers was made aware of this, because he was at the Court 21 hearing. Later, during a different hearing in a different court, William Chavers had a court order placed on him by Court 16. Allegedly, Kerr
reminded Chavers of all the conditions of his probation, including the no contact order from Court 16. However, Chavers had contact and conversations with Cushenberry, who indicated to Chavers that she had the dismissal paper and that Chavers could come to her home.

Now, here is the issue: Did William Chavers have knowledge at the time of talking to his Cushenberry that there was a protective order on him by Court 16?

Well, a person might argue that he did, because allegedly the probation officer said that he gave Chavers information that there was an order against him in reference to Court 16.

However, human memory is malleable: People forget things. For instance, people forget numbers. People forget telephone numbers. He may have mixed up the numbers 16 and 21 when thinking about Court 16 and Court 21. I sure did while writing this. However, a person does not generally forget he or she has a court order against him or her. Furthermore, there was no evidence presented, for what I’ve read of the July 16, 2013 appeal, that the probation officer gave Chavers the information about the Court 16 court order. As far as I know, it was based on the probation officer’s word alone.

A day or so later, on September 20, 2012, Chavers met with Andrew Kerr (“Kerr”), a probation officer, and was oriented as to the terms of his probation. Kerr
reminded Chavers of all the conditions of his probation, including the no contact order from Court 16.

However, during sometime around all of this…

On or about September 18 or 19, 2012, Cushenberry went to Court 21 and asked that the protective order be removed. Cushenberry was given paperwork indicating that
the civil protective order had been dismissed at the September 10 hearing. Cushenberry did not go to Court 16 to request that the no contact order issued as a condition of
Chavers’s probation be vacated.

Was Cushenberry aware that there was a court 16 court order against Chavers?

If there is no evidence to suggest that Cushenberry did know about this, then there will be evidence of abscence: She will not be seen on camera, there will be no digital footprint of her being aware, and so on.

Now, there was an aspect to this case, which was that Cushenberry allegedly had told Chavers that there was no court order against him. However, Cushenberry mentioned that she had dismissed the restraining order:

Later that same day, on September 20, Chavers had contact and conversations with Cushenberry, who indicated to Chavers that she had the dismissal paper and that Chavers could come to her home.

At this point, an individual can use Occam’s razor:

(1) Chavers’ willingness to go to Cushenberry’s home means that he lacked knowledge about the Court 16 order being in effect: Chavers was ignorant
(2) Chavers is a gullible person and believed that Cushenberry got rid of the Court 16 order, despite having knowledge that it was in effect as said by Kerr: Chavers was reckless
(3) Chavers was well aware that the Court 16 order was in effect and knowingly broke the terms: Chavers was knowing

Now, we’re getting into “mental states.”

Hypothesis 1:

However, Chavers had been informed by Kerr at his probation appointment earlier on the day of his arrest that the no contact order was still in effect, and Kerr believed there was no confusion about the order when they met.

Why did Kerr believe that? Did Kerr have overconfidence in his ability to communicate information?
And what about Chavers? Did Chavers pay attention to what Kerr was saying?

Did Chavers state in court that during the time he was talking to Cushenberry on the telephone that he was aware that the Court 16 order was in effect?

If he was not aware that it was in effect, then he unknowingly broke the order.

But how could he not be aware?

That’s a good question. You see, sometimes people don’t remember everything they are told all at once. Sometimes people lack an ability to generate episodic memories in relation to information that they are encountering. Sometimes people pay attention as much as they can, and then they lack the ability to absorb all the information. In a sense, it’s like ADHD: A failure to pay attention well enough and remember all of the information the person is encountering. However, there is the aspect that the individual was at the court 16 hearing and told about the court order: Did Chavers recall that?

And how do you prove that Chavers was not aware of the court 16 order?

That’s easy enough: Prove that he is a forgetful person, and be able to prove how forgetful of a person he is.

If Chavers was not aware of the court 16 order while talking to Cushenberry, then Chavers had a false memory.

I read parts of the book

Proving the Unprovable: The Role of Law, Science, and Speculation in Adjudicating Culpability and Dangerousness

(American Psychology-Law Society).

It talks about how law likes to reject the notions of psychology and science. I believe that law appeals to ignorance in attempt to remove itself from notions of determinism in order to force a free-will standpoint onto individuals.

In relation to Chavers awareness of the court order, it was mentioned that Chavers…

Instead, he relied only on Cushenberry’s assertion that the order had been vacated. However, Chavers had been informed by Kerr at his probation appointment earlier on the day of his arrest that the no contact order was still in effect, and Kerr believed there was no confusion about the order when they met.

NO WHERE IN THE APPEAL DID IT STATE THAT CHAVERS WAS AWARE OF THE COURT 16 ORDER.

That means either Chavers was unaware or was at least reckless as to coming over to Cushenberry’s home.

There is an assumption, however, by the court: “Therefore, Chavers had received conflicting information regarding the validity of the no contact order.”

That is an assumption. At no time was it discussed that Chavers was consciouly aware while talking to Cushenberry that the court 16 order was against him.

In the face of such conflicting information, a reasonable person would attempt to verify the validity of the order, by looking at the dismissal papers personally, or by contacting the clerk of the issuing court. This is especially true of a man who had just been convicted and sentenced for D felony criminal confinement. Chavers failed to take any such action.

The court assumed that there was conflicting information. The court assumed that Chavers was reckless. The court assumed that Chavers failed to act as a reasonable person. However, people forget. The reasonable person is a hypothetical person. There is no scientific standard. I assume that a scientific standard could be applied if you had MRI brain scans of all people who were in a similar position as to him, but the court did not have such evidence to support the allegation that he failed to act as a reasonable person. There was no evidence provided that he acted unreasonable for a “a man who had just been convicted and sentenced for D felony criminal confinement. Chavers failed to take any such action.”

Chavers states that he relied, in a manner he believed to be reasonable, on Cushenberry’s statement that she had gone to court and that the order had been vacated at her request. He argues that he could and did reasonably believe that the Court 16 order was vacated, and that his presence at Cushenberry’s home was not a knowing violation of the no contact order, but rather a mistaken belief that the order was no longer in effect. He argues that this belief constitutes a mistake of fact that negates the element of knowledge requisite for commission of the offense of invasion of privacy.

Thus, we start to see that Chavers states that he relied on what Cushenberry had to say. However, was he confabulating? And if he was not confabulating, then was he reckless? He states that he relied on what Cushenberry had to say. However, there does not seem to be any evidence in relation to him having been consciously aware at the time he was talking to Cushenberry that that the Court 16 order was in effect against him: Thus, that leads to the question of whether or not he was confabulating in court.

Further, even if Chavers’s reliance was reasonable when he arrived at Cushenberry’s home, he had already been in contact with Cushenberry before she indicated to him that the order was vacated, in violation of the order.

There is no proof that Cushenberry knew about the Court 16 order. There is no proof that Chavers knew that Cushenberry knew about the Court 21 order dismissal. As far as Chavers knew, the Court 21 hearing was dismissed. During the telephone conversation, Chavers would have known that the Court 21 case was dismissed, and he would have been able to recognize that Cushenberry knew that the Court 21 hearing was dismissed. However, if there is no evidence that Cushenberry knew that the Court 16 order was in effect and there is evidence that Chavers was consciously aware of the Court 16 order being in effect, then Chavers misled Cushenberry. However, there was a failure to establish that Chavers was consciously aware of the Court 16 order being in effect during the time he spoke to Cushenberry. If he was consciously aware of the Court 16 order being in effect, then he was knowingly breaking it while talking to Cushenberry on the telephone, I assume. And then he was consciously aware of being in violation of it when he came over to Cushenberry’s home.

However, Chavers could not testify that he heard Cushenberry say that she vacated the Court 16 order, because Cushenberry never went to the court hearing for the Court 16 order. Furthermore, as there would be evidence that Cushenberry had went to vacate the Court 21 order, she would know that she did not vacate the order. If there is no evidence to suggest that Cushenberry knew about the Court 16 order being in effect (via evidence of absence), then there is no way it could be argued that she told Chavers over the telephone before he came over that she vacated the Court 16 order. Therefore, Chavers was confabulating about the telephone conversation with Cushenberry.