Before the Defense called their first witness in the State vs. Dharminder Vir Sen trial in 4th Judicial District Court Thursday afternoon, Court recessed for about an hour while the issue of expert testimony was addressed in a hearing outside the presence of the jury.
Before getting into the main topic, Sen's attorney, Tim Cotton, made a motion for a Judgment of Acquittal on the third charge, Robbery, of the white pick-up truck from which he allegedly stole the handgun used in the shooting of Robert Ernst. Cotton said that Wyatt Bear Cloud was also with Sen, and that Sen's possession of the gun later did not have any bearing on whether he was the one to actually steal it.
Judge Fenn denied the motion.
On to the hearing, Dr. Marie Banitch took the stand. She is a full professor with the University of Colorado in the Department of Psychology and Neuroscience. She also has participated in studies of the biology of the mind, mental health and behavior. She told the Court that she had never personally examined or interviewed Sen.
She went on to tell the Court that she participated in a study on Adolescent Development and Juvenile Justice, funded by the MacArthur Foundation Network. The team studied 1,000 people between the ages of 10 and 30. She explained that findings in the past ten years have shown just how developmentally different the adolescent brain is, particularly in the frontal lobe, from an adult brain.
Notable to the findings were that impulsiveness is greater at 15, as well as perceiving participation in risky behavior to be less consequential compared to the possible reward gained from said choices.
In questioning Dr. Banitch, prosecutor Matt Redle asked her if 15-year-old's know right from wrong. Dr. Banitch responded, “We didn't study that."
After she stepped down, Redle argued that her testimony focuses on diminished capacity. He said, “It's clear from her testimony that it is not mental illness. Professionally, she's competent, but legally, she's not according to Wyoming law."
Cotton countered that an expert educates a jury, and reminded the Court that the prosecution chose to charge Sen as an adult but that Sen does not have the capacity to act like an adult.
Judge John Fenn said he had taken the time to read Dr. Banitch's testimony from Sen's transfer hearing, and it is consistent to what she shared in Thursday's hearing. Fenn said that the Wyoming Supreme Court is very clear that diminished capacity is not allowed, and that "her evidence is not relevant to this case." He denied Dr. Banitch being allowed to testify before the jury.