When Is Brain Damage a Valid Defense?

In Winkler v. State, the S.C. Supreme Court reversed and remanded a capital murder defendant’s case so that his attorneys will have time to investigate and present evidence of possible brain damage in his defense.  Winkler was convicted of a 2006 murder in Horry County and sentenced to death by an Horry County jury.  In 2010, the S.C. Supreme Court denied his direct appeal from his trial, after which Winkler filed a petition for post-conviction relief (PCR).

Post Conviction Relief (PCR)

Winkler filed his PCR petition in May of 2011.  Soon after beginning work on Winkler’s case, his PCR lawyers realized that there were indications of brain damage that Winkler’s trial counsel had not investigated.  The judge assigned to Winkler’s case had already signed a scheduling order with deadlines for discovery, amended petitions, and the hearing date.  The judge agreed to extend the deadlines while testing was done, but, when the tests were further delayed because the doctors had to reduce Winkler’s blood sugar before they could obtain a reliable result, the court refused to grant additional time and forced the attorneys to go forward without the test results.  The doctors’ estimates were that it could take as long as four additional months to complete the tests – six to eight weeks to reduce the blood sugar level and then six to eight weeks to analyze the test results.

At the PCR hearing, the court then denied relief on the brain damage claim, because there was no evidence presented that trial counsel was ineffective for failing to investigate the issue.  To succeed in the PCR claim, the PCR attorneys would have had to present evidence of the brain damage and trial counsel’s failure to present it.  To show resulting prejudice to Winkler, the testimony presented at the PCR hearing would have to be evidence that could have changed the verdict in either the guilt or the sentencing phase.  By not allowing PCR counsel to complete the tests, the court prevented Winkler from even making a record as to what the results would have been.

The PCR judge then granted Winkler’s PCR based on trial counsel’s failure to object when the trial judge did not answer the jury’s questions about the consequences of a hung jury.  On appeal, the S.C. Supreme Court essentially reversed everything the PCR court did.  They disagreed with the trial court about the jury issue and reinstated the death penalty.  Then they disagreed with the trial court’s refusal to extend the trial date so that Winkler could complete his testing and reversed the denial of PCR on that ground.  They remanded the case back to the PCR court with instructions to allow Winkler to complete his testing and present his evidence as to brain damage.

Is Brain Damage a Viable Defense to Murder?

Winkler will now have another PCR hearing limited to his evidence of brain damage – could that be enough to reverse his conviction or sentence?  Evidence of brain damage or other mental illness is ordinarily not enough to win an acquittal in any case.  Not in South Carolina, anyway.  Although it is likely that a capital murder defendant found not guilty by reason of insanity (NGRI) will be committed in a secure mental institution for the rest of their lives, neither the attorneys nor the judge is allowed to tell this to the jurors.  Instead, in any case where the defense of insanity is raised, the court is required to also charge the jurors on the potential verdict of guilty but mentally ill (GBMI) and to make that an option on the verdict form.  The jury instruction and statute imply that GBMI will result in the defendant going to a mental hospital, which leaves jurors wondering if NGRI will result in the defendant being released back onto the street.  Jurors will choose GBMI, which is in practice no different from a guilty verdict, every time.

It’s a tactical decision, but ultimately the question of whether a defendant raises the defense of insanity is the defendant’s choice.  It is extremely rare for a defendant in any case to be found NGRI by a jury, and a verdict of NGRI, by law, always results in commitment.  It is not a true acquittal where a defendant is released from prison.  It can be more effective during the sentencing phase of the trial, however.  Jurors are not likely to make a vote that they believe could result in the release of a person that they believe may kill again regardless of whether the propensity for violence is just plain meanness or the result of a mental defect.  Jurors may choose not to kill a defendant, however, if they understand what made the defendant who they are and why they committed the crime.  If circumstances beyond a person’s control cause them to hurt others, we need to separate them from society without a doubt.  But should we kill them?


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