Controversy Follows UC Irvine Scientist’s Brain Scan Testimony

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Long one of UC Irvine’s most expensive medical investments, the PET Brain Imaging Center has given physicians an unmatched tool in the fight against diseases from cancer to dementia.

The facility allows physicians to use radioactive compounds to observe brain activity in living individuals, engendering research programs and eventually developing new treatments.

But in recent years, the center and a long-time clinical director, Dr. Joseph C. Wu, have earned a national reputation for dubious use of the technology for forensic diagnoses in court cases, which records show can bring in more than $20,000 per case.

On America’s most-populated death row in Florida, Wu has accumulated an unorthodox group of patients — at least a dozen murderers convicted of some of the state’s most heinous capital offenses.

There is the reputed ringleader of a bat-wielding band who beat six people to death, with one victim’s jaw pulverized to the point where dental identification wasn’t possible.

Among others of Wu’s cases on Florida’s death row of 412 inmates is a lifelong criminal who kidnapped a 9-year-old girl, raped her for days, then buried her alive, evidenced by the fact that her fingers had clawed through a plastic bag.

Yet another is a woman convicted of torturing a housekeeper by pouring bleach down her throat before strangling her.

Wu has testified in these and other cases that PET brain image scans can reflect earlier brain damage or anomalies that might explain their violent actions, thereby saving them from execution.

The PET [positron emission tomography] technology for the brain scanner can express brain activity in colored pictures of the organ, showing regions where cells are dead or functioning improperly and causing disorders.

Everyone agrees that such defendants should have robust defenses tapping first-rate scientific tests. But many legal experts say these scans do not provide credible evidence of how brain injuries affect behavior and are being misused in criminal cases.

For years, Wu — who was the center’s clinical director from 1988 to 2007 and remains on staff — has been flying to Florida to provide mitigating testimony, either at trials or at post-conviction hearings on death sentences.

This has earned him a questionable reputation from coast to coast. A Los Angeles federal judge in a 1997 cop-killing case called him “a hired gun anxious to make the PET scan the instrument of truth.”

“Hokum” is what Wu’s testimony is called by Dr. Lawrence E. Holder, a University of Florida at Jacksonville radiologist who has testified for the prosecution in capital cases.

Typically, the problem with Wu’s testimony is twofold, said Holder: “He shows a pretty picture of a scan with a color indicating an abnormal area. But he can’t say it is abnormal. And even if it was, he can’t say what it could cause.”

Wu met similar resistance in California courtrooms in the 1990s, when his testimony came into vogue.

Dr. Alan D. Waxman, long-time director of PET imaging and nuclear medicine at Cedars-Sinai Medical Center in West Hollywood, was an early Wu opponent.

“These colorful images of the brain are not scientifically valid,” said Waxman. “You can’t use a PET scan in this arena. You have to have some scientific studies to hang your hat on. Maybe someday we will. But not now.”

Attempts to interview Wu in person, by phone and email were unsuccessful. Neither Dr. Steven Small, director of the Brain Imaging Center, nor a university spokesman would consent to be interviewed. A spokesman said how physicians use a PET scan is up to them.

A Questionable Defense

In Florida, court records of capital cases over the last decade show that Wu’s testimony often doesn’t seem to alter outcome of cases.

Holder said Wu’s testimony — which “can’t be validated or replicated” in studies — complicates an already difficult process. “Scientists and attorneys are tired” of the tactic, he added.

“We want this technology to develop,” said Holder. “But if it is used incorrectly, it gets a bad name, research is slowed down. Then it is bad for everyone.”

Effective in July, a new Florida law raised the standard for admitting scientific evidence, prompting some prosecutors to try to limit PET testimony.

In one of the first Florida decisions on this issue, a state Circuit Court judge ruled on Jan. 14 that a PET scan cannot be used solely for correlating behavioral abnormalities and brain damage but is admissible to corroborate other mitigating evidence, such as an historic injury report.

In that case, in which a woman was bludgeoned to death after her car broke down on an isolated highway, the Florida Supreme Court previously had set aside a death penalty verdict, attorneys said in part because a judge didn’t allow Wu’s PET testimony.

Some defense attorneys consider the medical technology valuable to judges and juries. Pete Mills, a public defender near Tampa who chairs a statewide committee assisting public defense offices, said: “It is complex. But it provides great benefit in understanding a defendant’s brain, offering an explanation of how — and hopefully why — something happened in his or her life.”

In recent years, diagnosis with PET scans has made great strides with certain diseases. In 2004, Medicare agreed to pay for them for Alzheimer’s disease, for instance.

Physicians can use the scans to identify differences in the brains of groups of people, according to authorities, but the difficulty in forensic work is applying such evidence to individual cases. For instance, there are PET studies of impulsive behavior, but authorities said they can’t link a scan result to an individual’s action.

Slowly Developing Technology

Although developed nearly 40 years ago, PET scans are still considered young in terms of medical capabilities, because scientific proof for a broader number of applications has been slow in coming.

UCI’s $1.9-million PET Brain Imaging Center was funded in 1988 largely through a $1.3-million philanthropic drive led by the Irvine family, according to reports. Research has included epilepsy, substance abuse, Alzheimer’s disease and schizophrenia.

A force behind the initial drive for forensic applications was Dr. Monte S. Buchsbaum, the Brain Imaging Center’s initial director and a veteran of the U.S. National Institutes of Mental Health in Maryland.

His and Wu’s testimony, which included both the scans and analysis, brought added revenue to the university.

In a 2012 appellate case, court records state Wu estimated his charges at $10,000 to $20,000 per case, with the revenue going to the UC system. A scan itself can cost several thousand dollars, according to records. Wu’s academic salary then was $170,000 annually.

The first PET case headlines came when Buchsbaum testified for Randy S. Kraft, Orange County’s most prolific serial killer, who in 1989 was convicted of murdering 16 men. Kraft is on death row.

Then Buchsbaum testified for Richard Lucio DeHoyos, convicted in 1989 of kidnapping, rape and murder of a 9-year-old girl, whose body was dumped in Griffith Park in Los Angeles. Known for growling and barking at trial, DeHoyos was called “Mr. Fester” because of his similarity to the character on “The Addams Family” television series.

In his testimony, Buchsbaum argued that PET scans identified damaged areas of the brain that could have contributed to the defendants’ acts.

In 1992, Buchsbaum left for New York City to establish his own PET center there but returned to testify in support of Wu in the murder trial of Cary Staynor, a handyman at Yosemite National Park who was sentenced to death in 2001 for killing four women.

Such cases, medical authorities said, made Wu and Buchsbaum the nation’s leading advocates of forensic uses of PET images, gaining their share of detractors.

For a scan, a patient is injected with a sugar compound (glucose) tagged with a low-level radioactive isotope. The scan can record brain cell use of the sugar compound. Different levels of the compound’s use is pictorially represented by various colors.

Wu and Buchsbaum interpret certain colored areas as showing prior damage or abnormalities.

While this process is widely accepted by medical authorities when it comes to detecting cancer, epilepsy or dementia, many leading academic authorities disagree with Wu and Buchsbaum’s analyses.

One is Dr. Abass Alavi, a University of Pennsylvania physician who in 1976 conducted the first human PET brain scan using a radioactive compound.

In 1992, he testified in a seminal brain imaging case in New York City, where a man threw his wife off their apartment balcony. The court agreed with Alavi that a large brain cyst led to the deadly act. The defendant was hospitalized.

But regarding Wu and Buchsbaum, Alavi said their forensic testimony often is not scientifically justifiable.

In 2007, prosecutors sought to show this in a high-profile sexual assault case in New York City where Buchsbaum testified for the defendant, claiming a PET scan showed damage reflecting schizophrenia.

Buchsbaum’s credibility was attacked by questioning his diagnosis in a famous Mafia case involving Vincent “The Chin” Gigante, known as “The Oddfather” for strolling New York in a bathrobe muttering to himself.

Previously, Buchsbaum had argued a PET scan indicated Gigante was mentally ill. But federal agents later wiretapped Gigante, found the feigned illness was a ruse to avoid murder prosecution, then convicted the don, who died in prison in 2005.

With tabloid headlines mocking his 2007 testimony as “psycho bobble,” Buchsbaum stood by his Gigante diagnosis.

In 2010, Buchsbaum, 73, moved to UC San Diego’s Center for Molecular Imaging, where, he said, he now primarily testifies on PET scans for civil cases involving personal injuries.

He insisted PET scanning can show brain injuries from psychological and physical shocks or trauma, a hotly contested view. During an interview, Buchsbaum offered to send his recent supporting studies but never did.

Even Dr. William G. Bradley, UC San Diego’s chairman of radiology, disagrees with Buchsbaum’s type of forensic diagnoses regarding purported brain abnormalities and association to certain actions.

“I hear [harsh criticism] of him when I travel around the country,” said Bradley, who noted Buchsbaum doesn’t have sufficient training in psychiatry or radiology to treat patients at UC San Diego. “The only way to put bread on the table is to have an attorney hire him.”

A Shift From California to Florida

Reviews of court records and interviews indicate that Wu’s business in Florida picked up after his testimony was questioned in California.

During the 1990s, the Orange County public defender’s office regularly looked to Wu for PET scans, an official said, but then the attorneys sought other options.

In 2001, the state 4th District Court of Appeal ruled a San Diego County Superior Court judge was correct in blocking Wu’s PET testimony during an El Cajon murder trial because it wasn’t scientifically acceptable. [This decision did not set a legal precedent, however.]

During the case, Douglas Rose, a San Diego County deputy district attorney, said he became suspicious of Wu.

Wu had provided his office with UC Irvine brain scans of the defendant, Rose said, purporting to show frontal lobe brain damage indicated by a specific color. But those scans were misplaced, so the prosecutor sought a second set.

When the new set arrived, Rose said, he discovered they were different than the first set, which subsequently had been found.

“He had manipulated the colors in the images,” said Rose.

“I was very skeptical if this was true science. He was not doing this for truthful purposes but as a way to make money.”

The defendant, convicted of the 1997 killing of a woman, received life in prison. He later confessed to two other murders.

In a 2008 trial, a Butte County prosecutor had similar questions about Wu’s testimony for a man facing a murder charge after a Chico bar argument over a woman. The man was convicted but last year mounted a new appeal.

“I was shocked that someone with his credentials would be so misleading in his testimony,” said Kurt W. Worley, a supervising deputy district attorney. “I attributed it to him being a true believer in the technology. But that prevented him from being objective in interpreting test results.”

A Long-Standing Revenue Generator

Legal work has long been a source of revenue for the UCI center’s costs, interviews and records show.

In the 1990s, a physician interviewing at the UC Irvine Brain Imaging Center said forensic studies appeared to be revenue that supplemented a lack of research grants and health insurance payments for PET scans, not covered by Medicare until 1999-2000.

And records in a lawsuit filed in July against UCI indicate legal cases remain a regular source of revenue.

A physician who in 2012 was forced out of the center after complaining to state and federal authorities about radioactive safety issues filed that lawsuit in Orange County Superior Court. Subsequently, the center’s research program was shuttered after federal inspections identified years of violations.

The lawsuit states personal injury attorneys would call the brain imaging center to make appointments for scans for clients, a practice some physicians and attorneys consider unusual.

Stephen D. Roberson, a Newbury Park defense attorney for insurance companies in Southern California, said it is known in legal circles that plaintiff attorneys can contact the center for scans involving purported mild trauma injuries.

And Wu’s reach in personal injury cases goes all the way to Michigan, where he offered UC Irvine PET evidence in an unusual case of a train striking a school bus driven around barricades at a crossing outside Detroit.

Even though the bus was empty and the driver uninjured, the train engineer alleged post traumatic shock syndrome, which court records show Wu supported. The case was settled before trial.

“Aye, yai, yai,” said Holder, when the case was described to him. There is no way to link such a purported brain injury seen on a PET scan to that incident, Holder said.

Rex Dalton is a San Diego-based journalist who has worked for the San Diego Union-Tribune and the journal Nature. You can reach him directly at rexdalton@aol.com.

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