Daily Herald
Wired wrong? Dugan's brain deficit to be explored
By Christy Gutowski | Daily Herald Staff
Published: 10/30/2009 2:49 PM | Updated: 10/30/2009 6:43 PM

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A DuPage County jury will get a glimpse inside Brian Dugan's head next week as the killer's sentencing hearing enters its second month.

A forensic psychologist with a novel approach to studying the brains of psychopaths will testify Tuesday that Dugan's brain is structurally and functionally different.

That point is not in dispute. At issue is whether the brain deficit affected Dugan's ability to control his savage impulses.

After much debate, Circuit Judge George Bakalis ruled Friday that defense expert Kent A. Kiehl may take the stand regarding his clinical neuroscience research. Bakalis, though, set limits on Kiehl's testimony and barred him from showing jurors color brain scan slides after prosecutors argued those images may confuse members.

Kiehl is a published University of New Mexico professor whose vanguard nonprofit research is financially supported through various private and government grants. But this marks the first time Kiehl will testify in a criminal case.

And the stakes are high.

Jurors found Dugan is eligible for a death sentence for the Feb. 25, 1983 abduction, rape and bludgeoning of 10-year-old Jeanine Nicarico of Naperville. They still must decide his punishment - execution or life in prison without parole.

Dugan, 53, has been serving life terms since 1985 for the slayings of nurse Donna Schnorr, 27, of Geneva, on July 15, 1984; and 7-year-old Missy Ackerman of Somonauk, on June 2, 1985. Dugan sexually assaulted and drowned them.

Prosecutors earlier presented more than 50 witnesses and 400 exhibits, including many graphic crime-scene photos, while arguing their case for death by lethal injection. Many women who survived Dugan's sexual attacks testified about escaping his deadly grasp. Jurors also listened to hours of recordings in which Dugan in a matter-of-fact tone details his killings.

The prosecution rested with Pat and Tom Nicarico, who drew tears in a crowded courtroom gallery while describing their unimaginable loss. The couple supports Dugan's execution.

To counter all the violence, the defense team argues mitigating reasons exist to spare his life. He pleaded guilty three months ago rather than fighting the allegations a trial.

Years earlier, as two innocent men sat on death row, Dugan admitted in 1985 he was the actual lone perpetrator. At the time, Dugan wasn't even on authorities' radar. They were convinced the right men were convicted. Dugan also was incorrect about some details.

Dugan would only officially confess if the death penalty was taken off the table. Prosecutors refused. The other men were exonerated in 1995 after multiple trials. Dugan was charged in late 2005 after improved DNA technology linked him to the crime.

Though Dugan's motive for confessing back then is debated, he did pen a Nov. 1, 1985 confession that read, in part, "in the event of my death, to ensure that innocent people are not murdered by the state for a crime they had no part of."

The jury returns Tuesday to hear Kiehl's testimony as the hearing enters its fifth week.

Kiehl uses a portable functional magnetic resonance imaging scanner, or fMRI, to measure brain function. He's tested more than 1,000 maximum-security inmates.

On Sept. 5, he asked Dugan a series of questions and showed him photos to test his brain function response. Kiehl found Dugan similar to other psychopaths has a defect or inactivity in an area of his brain that processes emotion, inhibition and self control.

Defense attorney Allan Sincox said that area of Dugan's brain didn't "light up" on the fMRI, and is proof Dugan suffers from an "extreme mental and emotional disturbance."

Jurors also will hear from two other defense experts, psychologist Orest Wasyliw, and psychiatrist James Cavanaugh, before his attorneys rest their case.

Not all diagnosed psychopaths are criminal. Though Kiehl questions whether those psychopaths who turn violent can control their actions, other experts such as psychiatrist Jonathon D. Brodie disagree. Prosecutors will call the neuroscientist to the witness stand to rebut Kiehl.

DuPage State's Attorney Joseph Birkett also noted Dugan's brain is likely different now at age 53 than it was at 26, when he killed Jeanine.

"Everybody acknowledges his brain doesn't operate the same as other people, otherwise he wouldn't be a rapist and a killer," Birkett said, "but the defendant freely chooses his course of actions."

The sentencing hearing will likely end by mid-November.