The Supreme Court, sans Justice Bill Cunningham, heard oral arguments both in favor of and against vacating Dunlap’s death sentence in Frankfort on Thursday morning. Kathleen Kallaher Schmidt of the Department of Public Advocacy is representing Dunlap, with Kentucky Assistant Attorney General David Abner arguing against vacating the death sentence.
Abner said Dunlap was competent to stand trial. Schmidt argued that the AVM (atrial ventricular malformation) in Dunlap’s right frontal lobe impaired his ability to decide to enter a guilty plea.
“They’re generally small, people have them, they don’t even know,” Schmidt said. “The problem is that Dr. (Michael) Nicholas (of the Kentucky Correctional Psychiatric Center) provided … a different opinion. He said that these can substantially impair your behavior, that there were documented cases that they can substantially affect you and can cause criminal behavior.”
Deputy Chief Justice Mary Noble questioned the idea that the AVM would impair Dunlap’s judgment and pointed out that Dunlap was judged to be competent to stand trial. She further said that brain size isn’t directly correlated to intelligence. Schmidt responded by saying that where the hole is located is important.
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