Courts

The 'Warrior Gene' Defense Will Get Appellate Consideration

I want to kill this defense and eat its liver, but it is beautiful.

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This is a post about the warrior gene and we found a pic of the Ultimate Warrior because we’ve come here not to ask, just to give. (Photo courtesy of DianesDigitals)

When I was in college (a long, long time ago in a galaxy far, far away… near Boston) we were just beginning to appreciate the powerful discoveries being made about the human genome. In one of my classes (Justice with Michael Sandel), the professor contemplated the then newly discovered “warrior gene” and whether its existence could lay the groundwork for a finding of reduced criminal culpability.

As I understand the science (note: I barely understand the science), the “warrior gene” reduces the production of an enzyme that is supposed break down serotonin and help you regulate your mood. In people who have been exposed to violence as children (I don’t understand the nature/nurture interplay here), the presence of this warrior gene is basically thought to make you more prone to violent impulsiveness.

You can see the utility of this gene in a college debate about culpability. If you are genetically predisposed to violence, are you really “at fault” for the violence you commit? Is free will really free? Yada yada, the Matrix.

Now, these masturbatory philosophy questions are playing out in real life in courts of law! I couldn’t be more excited, and terrified. The New Mexico Supreme Court has agreed to hear an appeal from Anthony Blas Yepez.

Yepez was convicted of beating, choking, and killing a 75-year-old man and (checks notes) lighting the corpse on fire to dispose of the body. His defense (beyond some nebulous “the old guy deserved it” thingy), was that Yepez has the warrior gene. The judge wouldn’t allow the jury to hear expert testimony on the warrior gene, regarding it as “junk” science. Yepez was convicted of second-degree murder.

Back in college, I was very much on team personal responsibility. The “respectability black” was strong in me, and it was important to me to think that that I had ultimate responsibility (read: credit) for my largely good choices.

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Of course, when you have this debate with a bunch of college freshman, the question of “responsibility” gets reduced to something of a binary proposition. Either people with this genetic marker are “responsible” for their actions and they go to jail forever. OR they’re “not responsible” and get to live next door to you. Our young minds could only handle the question in the theoretical world of moral responsibility, we didn’t have the training to get down to the practical way a case like this would play out. Many non-lawyers are going to think of the issue in the same way: Yepez is either responsible, or not.

But law school teaches you that we already have in place a sliding scale of “responsibility.” The law has already thought through the warrior gene question, even though the warrior gene wasn’t known to exist when these legal concepts took root. For the uninitiated, here’s basically how it works:

  • First Degree Murder = You killed people.
  • Second Degree Murder = You killed people, opportunistically.
  • Voluntary Manslaughter = You killed people, but I understand.
  • Involuntary Manslaughter = You’re such a dumbass that you actually killed people.
  • Self-Defense = You killed black people.

And that doesn’t even get to sentencing. The law does not require you to think in digital. You can believe that a “warrior gene” diminishes responsibility, without removing it. If I could go back to college, armed with what I know now (some university please say yes), I’d probably come down at murder 2 or voluntary manslaughter, depending on the circumstances. I am satisfied that your body isn’t regulating your mood properly, you probably can’t put in the malice required to get to murder 1… but you still damn sure know that killing people is wrong. I maintain my disdain for people who think genetic predilections remove all responsibility for choice.

In the instant case, Yepez was convicted on murder 2 and acquitted on murder 1. The state is arguing that even if the court erred in excluding the genetic testimony, the error was harmless because Yepez was not guilty of premeditation.

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The jury reached the absolutely right conclusion to me. Yepez, again, LIT A 75-YEAR-OLD CORPSE ON FIRE. Even Achillies would say, “Dude, that’s not cool.”

BUT… I can’t agree with the state because the process for getting to the right conclusion wasn’t good enough. None of my arguments attaching responsibility to murderers with the warrior gene, now or historically, involve dismissing the whole inquiry as “junk” science. It’s not junk. There is junk science out there. But courts are extremely bad at distinguishing junk science. Science that you disagree with is not “junk” science. Science that questions your hypotheses is not “junk” science. Science that you think is irrelevant is not “junk” science.

The warrior gene seems to be a thing. We’re learning lots about our own genome, and we’re going to be living in a world where we understand a lot more about the genetic influences that contribute to violence. What that science means for criminal culpability is something we have to work out, as a society. It’s a debate that should be happening in courts, and statehouses too.

Let’s embrace that debate, instead of ignoring it and hoping it goes away. Because the science is not going away. As the planet keeps trying to tell us, science doesn’t give a damn whether we acknowledge it or not.

‘Warrior gene’ appeal to be heard by New Mexico Supreme Court [Santa Fe New Mexican]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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