Two of three jurors interviewed by The Miami Herald afterward said the QEEG evidence swayed them.
Afterward, lawyers in two separate, high-profile murder cases tried to use the QEEG. In September, at an unusual hearing, judges in both cases sat together on the bench to hear about 12 hours of rival expert testimony.
Prosecutors Reid Rubin and Christine Zahralban argued that the defense’s use of QEEG was unreliable and misleading as a way of explaining a defendant’s past criminal behavior.
The first defendant was Joel Lebron, one of five Orlando men who kidnapped, gang-raped and murdered a South Miami Senior High School student in 2002.
Despite Scola’s ruling, Judge William Thomas declined to allow the QEEG. Jurors convicted Lebron of murder in September. During the penalty phase, lawyers still argued that their client had brain damage caused by a childhood car accident, leaving him prone to impulsive behavior.
The argument failed — jurors, by a 9-3 vote, recommended the death sentence. Lebron is awaiting final sentencing.
Judge Firtel, in the case of Escobar, held an additional hearing, issuing his ruling against the QEEG on Dec. 27.
Escobar and his brother are accused of fatally shooting Officer Victor Estefan in 1988. In 1991, they were convicted and sentenced to death. The Florida Supreme Court overturned their convictions because the brothers, who blamed each other for the murder, were not tried separately.
Defense lawyer Kellie Peterson said the QEEG has been used by the U.S. Department of Veterans Affairs and other agencies to assess brain injuries and plan treatment for patients. In Escobar’s case, the technology would not have been used to explain a propensity for violence, but just to show — in conjunction with other expert testimony — that Escobar had brain damage, she said.
“If it can help society and children and war veterans determine how a person thinks, then I think a jury deserves to have an objective measure of how a defendant thinks,” Peterson said.
Peterson’s office, the state-funded Regional Conflict Counsel, spent more than $40,000 on QEEG-related defense work. In the Escobar case, prosecutors say two of three doctors hired to rebut the QEEG have billed for $45,000.
Escobar is scheduled for trial Feb. 4. If convicted, he could appeal on the grounds that the QEEG should have been admitted.
In early July, Charlotte County, lawyers also tried to use the technology in the 2007 arson-murder case against Vernon Stevens. In a 14-page order, Circuit Judge Christine Greider found that “the majority of the relevant scientific community does not endorse the QEEG, including the American Academy of Neurology and the American Clinical Neurophysiology Society.”
She also found it “persuasive” that judges, including Thomas and Firtel, had disallowed the QEEG in recent years.