They are seemingly unrelated cases, one in criminal court in California, while the other is in civil court in the Midwest. But both the case involving Tutus Young and Jovan Belcher have a similar thread — a history of concussions is becoming a viable defense or consideration for a criminal action.
Belcher Case
Last year, Belcher, the former Kansas City Chief, killed his girlfriend, with whom he had an infant daughter, in their home before turning the gun on himself at the team’s parking lot.
Last month, Belcher’s family had his body exhumed so that it could be determined if his brain exhibited signs of chronic traumatic encephalopathy (CTE), a degenerative condition linked to repeated concussions. It is widely believed that symptoms of CTE include memory problems, behavior changes (such as aggression), and eventually dementia. The family hired noted concussion expert Bennet Omalu to do the examination.
Those findings led the mother of Belcher, Cheryl Shepherd, to file a wrongful-death lawsuit against the team last week.
Shepherd’s lawsuit, filed in Jackson County (Mo.) circuit court, alleged that Belcher was subjected to “repetitive head trauma,” and that the Chiefs failed to provide adequate medical care before Belcher killed his girlfriend and then committed suicide. She is seeking a jury trial and $15,000 in damages.
Further, the lawsuit claims the Chiefs failed to warn her son of the short-term and long-term risks of concussions; failed to identify and remove Belcher from practice or games after sustaining head trauma; failed to educate Belcher about concussions; failed to monitor or treat Belcher for neurological dysfunction; and failed to provide appropriate counseling.
“Over the course of a four-year career in the National Football League, Jovan unknowingly sacrificed his brain in order to provide for his family. Tragically, the Defendants’ wrongful conduct destroyed multiple lives, tore apart families and ultimately caused or contributed to cause Jovan’s death,” according to the lawsuit.
Young Case
Repetitive head trauma has also been the centerpiece of defense being mounted in criminal court on behalf of former NFL wide receiver Titus Young.
Young was arrested and jailed in May of 2013 and eventually charged with 11 crimes, including four felony burglary charges. Shortly thereafter, Attorney Altus Hudson claimed that his client’s actions were related to a history of concussions.
Hudson, when asked if his mental state of Young was diminished by football-related concussions, has told the media: “Only a doctor can say that for sure, but it is a viable defense.”
It was reported in December that the case is expected to be settled before the next scheduled pre-trial hearing on Jan. 16.
Orange County (Calif.) Deputy District Attorney Nikki Chambers seemed to echo that sentiment, noting that district attorney’s office is continuing to look at materials given to them by Hudson about Young’s history. “We’re taking into consideration a lot of things,” Chambers said. “Our primary concern is the safety of our community.”
Legal Expert Sees Two Applications
Mitchell Berman, an expert in criminal law at the University of Texas at Austin, said it is important to differentiate whether a history of concussion could serves as a ground for exculpation (i.e., acquittal), or a basis for mitigation of punishment.
“Take the ‘affluenza defense’ raised in the recent Texas vehicular homicide case,” he told Sports Litigation Alert. “In that case, ‘affluenza’ wasn’t really advanced as a defense, strictly speaking. That is, it was not advanced as a ground for acquittal. Instead, it was advanced to support a mitigated sentence. Similarly, I think it more plausible to envision a defendant raising the fact that he has suffered concussions as mitigation, and not as a true defense—i.e., not as a basis to support an acquittal.”
Turning to how repeated head trauma might be invoked in support of an argument for acquittal, he suggested two possibilities.
“One possibility is that repeated head trauma would be a defense all its own. The other is that repeated head trauma could serve as an explanation for other facts that constitute a defense.
“To understand these two different possibilities, take them in reverse. It is black letter law, that the state need establish the defendant’s mens rea to secure a conviction. Roughly, mens rea means that the defendant had some level of ‘culpability’ with respect to each element of the offense. He must have (for example) ‘intended’ to cause injury to another person, or must have ‘known or believed’ that the property he took or destroyed belonged to another, or must have been ‘reckless’ as to the fact that the person with whom he had sex wasn’t consenting. What type of culpability or mental state must be shown by the prosecution depends upon what the particular offense, as drafted by the legislature, requires. If the statute requires knowledge with respect to some fact, and the state does not prove knowledge beyond a reasonable doubt, then the fact finder should acquit. And that’s true regardless of the reason why the defendant lacked knowledge—maybe the defendant has a very low IQ, so wasn’t aware of what most people would have been aware of, or maybe it was dark, or maybe the defendant’s brain has been injured. In cases like this, repeated head trauma can, in a sense, serve as a defense, but it’s important to understand that what’s really doing the legal work is not the head traumas themselves, but rather the fact that the defendant did not have — or, more precisely, is not proven to have had — the requisite ‘culpability’ or ‘mens rea.’ The head traumas are introduced merely to explain and thus make more credible the claim that, as a matter of fact, the defendant didn’t have the culpability required.
“But what if the fact finder, usually a jury, believes that the defendant did have the mens rea that the offense requires—for example, that he did intend to cause bodily injury to another, or was aware of some legally relevant fact? Could the fact that the defendant has suffered repetitive head trauma serve as a true defense—i.e., as a ground for acquittal—nonetheless? This would be the more aggressive and interesting use of repetitive head trauma as a defense. The argument would be: You should acquit me, even though I had the requisite ‘mens rea,’ because my brain is messed up. That won’t fly. But, to return to the first distinction I drew, that is different from arguing that ‘you should show me leniency in sentencing because my brain is messed up.’”
Florida criminal attorney John Collins agreed. “It’s inevitable that some defense attorneys will try to use this as a defense,” he said. “However, I believe it will be utilized more effectively in the way of mitigating punishment than for finding acceptance in excusing criminal behavior.”
Eugene Egdorf, a partner at the Lanier Law Firm, told Sports Litigation Alert that he expects “this affirmative defense” to become more common. But there will be challenges.
“This would be akin to an insanity defense or lack of mental capacity to form intent,” said Egdorf. “However, one must keep in mind that as a general rule in most jurisdictions is that the test is ‘did the Defendant have the ability to know whether his conduct was wrong.’ That’s a very difficult burden to meet if, for example, you are referring to an athlete assaulting or even killing another person.”
