A recent Phoenix conference examined difficult questions about concussions and what should be done about them.

A recent Phoenix conference examined difficult questions about concussions and what should be done about them.

What are the legal and ethical implications that face society as we learn more about the brain and the corrosive effects of concussions?

On Friday, I had the good fortune to catch the final hour of an all-day conference committed to that and other important questions. That hour was the conference’s capstone and featured a panel Q&A moderated by legal star Arthur R. Miller, a law professor at NYU. I may write about that panel in an upcoming Arizona Attorney Magazine.

safeguarding brains ASU conference 11-13-15

In the meantime, I share an editorial that ran in Friday’s Arizona Republic. In “Ending the Concussion Epidemic,” conference organizers Betsy Grey and Gary Marchant, both professors with the Center for Law, Science & Innovation at ASU Law, offer valuable insight. Let’s hope conferences and articles like this help legal and government leaders make good choices.

(And it’s worth noting that Gary Marchant wrote for us before, on personalized medicine and the law.)

When I say “overcriminalizing” or “science under attack” or “tort reform,” you may think I’m talking about three of the biggest debates being fought in the United States today. But a news story from Italy reminds us that we do not corner the market on any of those topics.

The report describes manslaughter charges brought against six Italian seismologists. Their trial arose from accusations that the scientists “failed to adequately communicate the potential for a major earthquake to the population around the central Italian town of L’Aquila.” That town was devastated by a magnitude 6.3 earthquake in April 2009. More than 300 people died, and about 20,000 buildings were destroyed.

Government office in L’Aquila damaged by 2009 earthquake (Wikimedia Commons)

The story calls L’Aquila an “earthquake-prone region.” That may be an understatement of seismic proportions. Here is a description of the region, by Wikipedia:

“Earthquakes mark the history of L’Aquila, as the city is situated partially on an ancient lake-bed that amplifies seismic activity. On December 3, 1315, the city was struck by an earthquake which seriously damaged the San Francesco Church. Another earthquake struck on January 22, 1349, killing about 800 people. Other earthquakes struck in 1452, then on November 26, 1461, and again in 1501 and 1646. On February 3, 1703, a major earthquake struck the town. More than 3,000 people died and almost all the churches collapsed; Rocca Calascio, the highest fortress in Europe, was also ruined by this event, yet the town survived. L’Aquila was then repopulated by decision of Pope Clement XI. The town was rocked by earthquake again in 1706. The most serious earthquake in the history of the town struck on July 31, 1786, when more than 6,000 people died. On June 26, 1958, an earthquake of 5.0 magnitude struck the town.”

Prosecutors claim they do not argue the scientists should be able to predict earthquakes. Instead, they say that “they failed to accurately characterize the risks and convey that information to local civic officials and the public.”

Apartment buildings in L’Aquila, Italy, after the magnitude 6.3 earthquake that killed more than 300 people and damaged an estimated 20,000 buildings in 2009. (Credit: Leandro Demori/Creative Commons)

That may be a distinction without a difference. In any case, scientists around the world are watching that Italian courtroom, and threatening that a guilty verdict could serve as a chilling effect on any scientists being willing to share their findings publicly.

The article goes on to explain how scientists might frame their public conversations in the future, so as to provide relevant and useful information with the public. But in the meantime, we’ll keep our eyes on the verdict.

Hon. Ron Reinstein (ret.) speaks at ASU Law School, Nov. 16, 2010

Yesterday, a program at ASU Law School turned a light on what may be one of the most important issues in law today.

“The White House Subcommittee on Forensic Science: Policies and Issues” was the title, and it covered developments—or the lack of them—that have followed on the nearly two years since the National Academy of Sciences issued a compelling report about the state of forensic science today.

(We covered the report’s release in Arizona Attorney in April 2009. You can read it here.)

The speaker was Ron Reinstein, former Maricopa County Superior Court Judge who now works at the Administrative Office of the Courts. His experience in the area is broad and deep, and he currently chairs the state’s Forensic Science Advisory Committee.

ASU’s Law & Science Student Association was the host, and it gave Reinstein 50 minutes to explain “what’s happening in the world of forensic science.” He did quite a job in his allotted time.

He admitted, though, that the White House Subcommittee is pretty stringent on what can and cannot be said about the group’s workings, at least until it issues its report. As he landed on his last slide, he said, “We’re only allowed to do that PowerPoint.”

Of course, he was able to explain far more than that about the world outside the subcommittee.

The takeaway message was that much work had been accomplished over the past year at the federal, state and local level. Unfortunately, that work has translated very little into changes in approach and operations in forensic labs. “To be honest,” he said, “I am not that encouraged about state government responses around the country.”

Even in terms of education, Reinstein admitted that few judges have read the NAS report, and many others are even unaware that it exists. A survey of Texas judges showed that only 22 percent knew anything about it. “That’s kind of scary,” Reinstein said.

Much that was proposed in the NAS Report is unlikely to come to pass, he said. That includes an effort to require that all forensic labs be independent of law enforcement agencies. “That was dead on arrival,” he said.

(For insight into why that is important, read an article in the November issue of the ABA Journal, titled “CSI Breakdown.” As it says, “Some police and prosecutors tend to view government-employed forensic scientists, including medical examiners, not as independent experts but as members of the prosecution’s ‘team.’” The article is here.)

Courts, too, have not taken a leadership position on forcing changes in the forensic science regimen. “Judges don’t feel comfortable taking the lead on this,” he explained, adding that there have been few challenges by defense counsel based on the NAS findings that would allow judges to rule on admissibility. (One exception he mentioned is Nancy Gertner, a federal judge for the United States District Court for the District of Massachusetts. You can read more about her here.)

The speaker showed some silver lining in terms of education. He’s been pleased at the focus on the topic at Arizona Judicial Council conferences, and at the State Bar Convention. He said that people interested in the topic are watching to see what if anything the state’s new Attorney General, Tom Horne, and the Legislature adopt in regard to forensic science. And he is confident that “The Supreme Court wants to see change occur”; he mentioned Justices Hurwitz and Bales, and former Justice Ryan, as three who have indicated a strong desire to see positive change happen soon.

In the same vein, his Forensic Science Advisory Committee has developed a six-month course that will educate prosecutors and defense attorneys—25 of each—on all aspects of forensic science. It will meet weekly from January through May.

Look for more coverage in Arizona Attorney in 2011.

Here are more photos from the event.

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