Revisiting the Legal Link Between Genetics and Crime

I INTRODUCTION In 1994, convicted murderer Stephen Mobley became a cause celebre when he appealed his death sentence before the Georgia Supreme Court. (1) According to Mobley's counsel, the trial court should have enabled Mobley to be tested for genetic deficiencies. The counsel's interest in genetics testing was prompted for unusual reasons: Mobley's family history revealed generations of relatives with serious behavioral disorders. Indications that Mobley shared a genetic propensity for misconduct could help explain some of his troubling tendencies and why he should not be executed. (2) In a highly publicized decision, (3) the Georgia Supreme Court rejected that reasoning and affirmed the trial court's holding, explaining that the genetic theory involved in Mobley's case "will not have reached a scientific stage of verifiable certainty in the near future and ... Mobley could not show that such a stage will ever be reached." (4) One year later, Mobley's family history evidence again became an issue. This time, new counsel representing Mobley filed a petition for writ of habeas corpus claiming Mobley's trial counsel were inadequate for a range of reasons: failing to research sufficiently Mobley's background for mitigating evidence, neglecting to acquire funds so that a psychologist could provide expert testimony during Mobley's sentencing phase, wrongly declining an offer of financial assistance from Mobley's father to support Mobley's genetics testing and raising an "unorthodox mitigating defense that attempted to show a possible genetic basis for Mobley's conduct." (5) The habeas court vacated Mobley's death sentence on grounds that Mobley's trial counsel were ineffective; (6) on appeal, though, the Georgia Supreme Court reversed and reinstated the sentence, concluding counsel had been adequate. (7) Likewise, the Georgia Supreme Court denied reconsideration of the potential for testing Mobley for genetic deficiencies, but for a somewhat different reason than it had expressed three years earlier. (8) In the court's view, Mobley had in fact been "able to present the genetics theory" through a relative's testimony about the family's generations of behavioral problems; (9) however, even if the court had allowed genetics testing, "there had been no showing that a geneticist would have offered additional significant evidence." (10) In March 2005, after more appeals, Mobley was executed by lethal injection. (11) Mobley's request for genetics testing spawned an international debate on the political and scientific acceptance of genetics evidence in the criminal law. (12) Near the time of Mobley's 1994 appeal, for example, the Ciba Foundation (13) sponsored a symposium in London on the Genetics of Criminal and Antisocial Behaviour. (14) Because the symposium examined the legal implications of genetics and crime research (15) and contributed to the publicity surrounding the Mobley case, (16) the issues discussed at Ciba are significant to this article. (17) The Ciba symposium was also relevant to the legal field as a whole because the symposium's themes squarely addressed a topic that had seemed dormant for years: the interdisciplinary links between genetics and crime. The twenty-five symposium attendees represented a range of different academic areas, including genetics, psychology, philosophy, and law. (18) Their contributions are particularly pertinent today, at the ten-year anniversary of the first Mobley appeal and as Mobley's execution again draws public attention to his case. Mobley's death stirs the genetics and crime debate with a key question: How have courts and litigators treated genetics evidence in criminal cases during the decade following Mobley's first trial? Much of the controversy concerning Mobley was based on the presumption that such evidence would skyrocket in use and abuse. The following pages seek to determine if such forecasts have been realized. In essence, this article takes up where the Ciba symposium's analysis of the legal consequences of genetics and crime left off--to assess the kinds of exchanges the Mobley case would provoke today. …