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SANTA FE, N.M. — Did the genetic make-up of Anthony Blas Yepez have anything to do with a 2012 killing in which a 75-year-old Santa Fe man was choked and beaten, doused with cooking oil and set on fire?
What’s become known as the “warrior gene” defense has come to town.
It’s a variant of the nature-versus-nurture argument over why criminals do what they do, which maintains that the real answer is nature AND nurture – with the nature factor found in a genetic variant that can correlate with various kinds of bad behavior.
Public defender Ian Loyd has had Yepez, 26, tested for it and hopes to introduce that evidence at the murder trial, now scheduled for Feb. 9.
Loyd stressed that he’s not saying “Yepez’s condition makes him prone to violence, but rather that it helps to explain why he acted the way he did in that particular situation – it puts him at greater risk for acting impulsively and lashing out under stressful situations.”
Yepez is accused of beating and choking elderly George Ortiz Oct. 29, 2012 at Ortiz’s home in a senior housing complex on Santa Fe’s Luisa Street and then setting him on fire with cooking oil, with the help of his then-girlfriend. It’s unknown whether Ortiz was still alive when he was burned.
In an agreement with prosecutors, Jeannine Anne Sandoval, 30, Yepez’s co-defendant, pleaded guilty in June to second-degree murder. Ortiz had been married to Sandoval’s late grandmother and helped raise her.
Sandoval received the maximum 9-year prison sentence and has agreed to testify truthfully at Yepez’s trial. She and Yepez were arrested the day after the killing when they were found in Española with Ortiz’s Toyota Camry.
Yepez faces a charge of first-degree murder, meaning the prosecution intends to prove the killing was premeditated.
But the defense team contends an important factor was Yepez’s genetic make-up coupled with an abusive childhood that put him at a higher risk of acting impulsively in certain situations, and they want a jury to consider that. Loyd said Yepez told officers after the killing, “I don’t know how this could have happened and I’ve always been able to control it in the past.”
The genetic defense raises the question of whether a defendant is consciously responsible for his or her actions, not unlike but not as extreme as an insanity defense. With Yepez’s genetic variant, “The ability to check impulsive behavior is significantly diminished,” Loyd said.
After attending a forensics conference where he heard neurologist William Bernet of Vanderbilt University speak on what’s known as the MAO-A (Monoamine oxidase) gene defense, Loyd asked Bernet and his team to test Yepez.
MAO-A refers to a specific gene in “people’s genetic sequence, sort of the blueprint for who they are,” said Loyd.
It’s the gene that studies have shown regulates impulsive, antisocial or aggressive behavior. If a person’s genetic sequence for MAO-A repeats three times or less, he’s considered a “low copy three” with a “high-risk” version of the gene, which may put them at higher risk of bad behaviors. The gene normally repeats five times.
“He (Yepez) is not a low copy, he’s actually a no copy,” which is a very rare condition, said Loyd. “Evidently, he does not have this gene that regulates these chemicals at all, so he totally lacks the ability to regulate, to have dopamine and serotonin,” body messengers in the regulation of stress and depression.
Loyd intends to have Bernet, a distinguished life fellow at the American Psychiatric Association, as well as professor emeritus at Vanderbilt, testify to his findings in the Yepez case. Bernet has tested 30 criminal defendants, most of them charged with murder.
His Vanderbilt team has found that when someone has the “warrior gene”/abused childhood dynamic,” they react to stressful situations “sort of impulsively and aggressively,” said Loyd.
Bernet was an expert defense witness in a 2009 murder case in Tennessee, arguing for the defense that Bradley Waldroup fatally shot his wife’s friend eight times and then tried to kill his wife with a machete because of the “warrior gene” variant, coupled with Waldroup’s childhood abuse. Waldroup was convicted of the lesser charge of voluntary manslaughter.
Bernet, in a National Public Radio report, cited decade-long studies “that found the combination of the high-risk gene and the child abuse increases one’s chances of being convicted of a violent offense by more than 400 percent,” telling the jury that the combination was a “dangerous cocktail.”
The prosecutor in the Tennessee case called the genetic defense “smoke and mirrors” aimed at confusing the jury.
Ph.D. psychologist Nigel Barber wrote about the case in a 2010 article in Psychology Today, criticizing the warrior gene defense as “junk science.” He acknowledged “a germ of scientific truth” behind the defense, but says the genetic variant “might also be called other things, such as the gambling gene, the depression gene, the irritability gene, or even the live-in-a-trailer gene because its effects are contingent on an abusive childhood.”
“The key scientific problem is that about 34 percent of Europeans have the warrior gene,” Barber wrote. “Yet, homicide is extremely rare at a population level with only about one person in 100 committing a homicide during their lives. If the gene were used to predict homicide, it would be wrong more than 33 times for every one occasion it was right.”
But there is little doubt genetic evidence is getting play in major criminal trials.
In the case of Jared Lee Loughner – convicted of killing several people and wounding others, including former U.S. Rep Gabrielle Giffords, in a 2011 shooting at a Giffords event in Tucson – high-profile defense attorney Judy Clarke subpoenaed the health records of Loughner’s relatives going as far back as 1893. The defense showed that Loughner’s relatives suffered from extreme depression and he avoided the death penalty.
Deborah Denno, a law professor at New York’s Fordham University School of Law, has studied several cases involving uses of the genetic defense. She said that, so far, they are rare.
“The great majority of them are used in death penalty cases … to show people shouldn’t get the death penalty,” she told the Journal in an interview this week.
“Why not introduce scientific evidence?” she asked, although she takes issue with the term “warrior gene.”
“Judges want to know this generally. We are a different society today …. we are primed to know our genetic histories,” said Denno.”This is standard information that should be coming into the courtroom and is coming into the courtroom.”
Why, not what?
Loyd says the Yepez case hinges on why Ortiz was killed, not what happened to him.
“Why did this tragic event unfold the way that it did? … It sort of goes back to the nature-nurture issue. Are we who we are because of our genes or because of our environment?” said Loyd. “… This explanation sort of draws from both. So this defense isn’t purely just because of this gene.”
Assistant District Attorney Susan Stinson has filed a motion seeking to examine all materials from a neurologist and a psychiatrist who examined Yepez, and “all calculations or statistics concerning the warrior gene, along with the scientific bases for these calculations” and the research used for the calculations.
Thursday, Stinson said she could not otherwise comment on the genetic defense effort for Yepez or whether the District Attorney’s Office will oppose the introduction of genetic evidence at trial.
Yepez’s girlfriend Sandoval told police shortly after the George Ortiz homicide there was an argument at Ortiz’s home, Ortiz hit her in the throat and Yepez intervened.
“Our explanation of how it escalated out of control is the combination of his (Yepez’s) inability to control impulsive behavior wedded with his sensitivity to seeing women being struck … ,” Loyd said. “He couldn’t control his impulses.”
Yepez “had a particularly rough childhood,” Loyd said, with “some pretty horrific events early on, and was clearly without question the victim of some pretty awful abuse.”
What would Loyd hope for as the best outcome in the case?
“It’s our hope that the jury would agree with us that this was not premeditated.” That would mean Yepez could be convicted of what’s called a lesser included offense, which, depending on jury instructions, could include second-degree murder or voluntary manslaughter.
In addition to first-degree murder, Yepez is charged with conspiracy to commit first-degree murder, tampering with evidence and unlawful taking of a motor vehicle.