Not Guilty by Reason of Football: CTE as Get-Out-of-Jail-Free Card

When Nathaniel Fujita stood before a jury for stabbing and strangling his high school sweetheart and dumping her body in a marsh, prospects for acquittal looked bleak. Police found the slain girl’s blood in his garage and car, a hidden bag of wet clothes at his parents’ Wayland, Massachusetts home, cuts on various parts of his body, and internet searches on his computer inquiring about the effectiveness of erasing fingerprints with water. Instead of appealing to any exonerating evidence, defense lawyers presented a case that their client had played football.

Dr. Wade Meyers testified that high school football can “certainly” cause chronic traumatic encephalopathy (CTE), the neurodegenerative disease posthumously found in John Mackey, Junior Seau, and other football players. The disease’s “earlier stages,” he theorized on the witness stand, may have led to “anxiety,” a lack of “concentration,” “explosivity,” and a “loss of control” in the college-bound student. The disease, he argued, contributed to a “brief psychotic episode.”

It wasn’t me. It was CTE.

A Massachusetts jury didn’t buy the not-guilty-by-reason-of-football defense. Last March, Fujita learned that he would be spending the rest of his life, at least in a Massachusetts criminal justice sense, in prison. The courtroom gambit of invoking a public cause celebre had failed. But if at first defense lawyers don’t succeed, they will try, try again.

Another high-profile Massachusetts murder defendant, should the courtroom evidence prove similarly incriminating, may rely on the concussions-made-me-do-it argument. Already, journalists have speculated whether CTE unleashed a quick trigger and poor decision-making in former New England Patriot Aaron Hernandez. The loose-cannon tight end stands charged with murdering friend Odin Lloyd and remains a suspect in a separate Boston double-murder. His gang ties and fondness for angel dust seem likelier influences than football. Nevertheless, Philadelphia magazine’s Joel Mathis asked last summer, “Did football drive Aaron Hernandez to murder?”

A third accused Massachusetts murderer, receiving far more attention than Fujita and Hernandez combined, similarly factors into the debate over CTE. A day after Boston Marathon bomber Tamerlan Tsarnaev’s death, the CTE research group centered around Boston University generated publicity by demanding the study of his brain for signs of the brain disease. “I hope to God they do the special testing,’’ Dr. Robert Cantu told the Boston Globe. “If they don’t do it, something could be missed.’’

A local psychiatrist seconded this notion on the paper’s op-ed page. Providing a glimpse into the psychology of psychiatrists—they have the brain on the brain—Michael Craig Miller imagined the mass-murderer’s malady of the soul as one of the mind. He pointed to “the biology of violent behavior” in making his case for a CTE examination. “Tsarnaev’s high-level participation in boxing may have exposed him to multiple head knocks,” reasoned the psychiatrist. “In other words, he may have endured repetitive head injury and developed the brain disease that BU’s experts have studied in football players and other athletes.”

Even Jovan Belcher, who killed the mother of his daughter before killing himself, isn’t too dead to benefit from the power of the CTE narrative. Earlier this month, Belcher’s mother, after permitting the December exhumation of his body to check for CTE, filed suit against the Kansas City Chiefs for loss of “services, support, and maintenance, guidance, companionship, comfort,” that “can be measured in money.” The civil suit blames the NFL franchise for its linebacker’s violent demise. “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,” the suit charges. “Tragically, the [Kansas City Chiefs’] wrongful conduct destroyed multiple lives, tore apart families and ultimately caused or contributed to cause Jovan’s death.” Lawyers invoked “CTE” more than thirty times in the twenty-two-page suit.

When police arrested Browns receiver Davone Bess for an airport meltdown last week, the furthest reaches of the internet speculated that CTE may have sparked his bizarre behavior. After former Detroit Lions receiver Titus Young found himself in handcuffs on three separate occasions over a six-day period last year, his lawyer obliquely blamed football for his strange behavior. Altus Hudson told a judge upon his client no-showing a court date, “He’s still suffering from concussions.”

So complete has been the victory of the negative publicity campaign regarding the dangers of football that a disease whose cause and incidence rate remains unknown to science has become the default explanation for the mistakes, misbehavior, and misdeeds of contact-sports athletes. The mystery of CTE actually works in favor of those invoking it to whitewash transgressions in that nobody can say for sure that a disease we know so little about does or does not cause any number of behavioral disorders. The paradox of CTE is that the less evidence we have about what it does to its victims, the better it serves as courtroom evidence transforming perpetrators into victims. It works as a seductive excuse for the family members of a malefactor in that it blames an entire sport for an individual’s shameful acts. It works as a seductive strategy for defense lawyers in that it meshes neatly with a narrative that has saturated mass-media messages received by most jurors. But will it work on the public?

Retired players suing the NFL relied on CTE to propel their lawsuit. Consequently, the plaintiffs engendered widespread sympathy. But as the purported CTE victims switch from plaintiff to defendant, the sympathy may quickly turn to scorn. It's one thing to ask a judge for $765 million based on sketchy claims of a disease that can only be diagnosed upon autopsy. It's another thing to ask a jury to ignore your murder rampage based on a dubious CTE diagnosis. As three University of Colorado Medical School faculty members wrote in the academic journal Behavioral Sciences and the Law this fall, “the potential for malingering is real when litigation is a factor, and various authors have reported significant base rates (up to 40%) of malingering in brain injury litigation.” When the litigant maintaining a brain injury sits as the defendant rather than the plaintiff, the likelihood for malingering would seem to rise—as would suspicions among jurors of such fraud.

In the decade or so since a Cyril Wecht protégé slightly more attracted to cameras than his boss issued a “F---, man!” and “Thank you, Lord!” upon receiving the corpse of NFL Hall of Famer Mike Webster in which CTE would be discovered, the disease then used to fuel a disability lawsuit against the NFL has become a line of defense in murder cases. How long until OJ Simpson reports that he has finally caught the “real killer” of Nichole Brown Simpson and Ron Goldman, and its initials are CTE?

Daniel J. Flynn, author of The War on Football: Saving America’s Game (Regnery, 2013), edits Breitbart Sports. Check back tomorrow for part three of this series on chronic traumatic encephalopathy.


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