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A mental-case defense may not help the Sterlings

May 18, 2014 - 12:05am

PITTSBURGH — The racist remarks of Donald Sterling, the disgraced owner of the Los Angeles Clippers basketball team, may be a symptom of dementia and not his own personal beliefs, according to his wife.

Shelly Sterling speculated her husband may be suffering from the neurological disorder during an interview earlier this week with ABC’s Barbara Walters.

On April 29, NBA Commissioner Adam Silver banned Sterling from the league, fined him $2.5 million and said he would urge other team owners to force the sale of the Clippers.

A legal showdown over the commissioner’s ruling may be inevitable. and, citing unidentified sources, reported Thursday that Sterling’s lawyer, antitrust litigator Maxwell Blecher, wrote a letter to Rick Buchanan, the NBA’s executive vice president and general counsel, threatening to sue the league and saying Sterling will not pay the $2.5 million fine.

The fallout stemmed from the release just days earlier of an audio recording in which Sterling, 80, told a woman with whom he had a relationship that he did not want to see her at games with black people.

“He saw the tape and he said. ‘I don’t remember saying that. I don’t ever remember saying those things,’?” Shelly Sterling said in the interview. “That’s when I thought he had dementia.”

While the onset of dementia might be able to explain certain types of unusual behavior, experts say it’s rarely an effective legal ploy in the courtroom and may even backfire on people who would try to use it as a defense.

Lawson Bernstein, a forensic psychiatrist practicing in Allegheny County, Pa., said there are a number of different types of dementia, and depending on where in the brain it is concentrated, its effects can be different.

If the dementia is settled in the frontal lobe, it can impact a person’s ability to control behavior or cognitive reasoning.

“You can see subtle changes in behavior and on decision-making capabilities,” he said.

Sometimes the process can be a slow one, taking years to develop, and in others, it can be rapid and be evident within months.

Diagnosing dementia is a complex process that can involve blood tests, neurological imaging and neuropsychological testing.

Shelly Sterling did not say in her interview that her husband has gone through any formal evaluation.

Bernstein, who is not in any way associated with Sterling or his situation, said, “I didn’t hear anything that would suggest to me he has a rip-roaring dementia.”

Instead, he thought the man has sounded well-spoken in his interviews and seems to have a grasp on chronology and the facts before him.

Shelly and Donald Sterling have been married for nearly six decades but estranged for the last year.

In her interview with Walters, Shelly Sterling said she was shocked by her husband’s comments.

“I don’t really think he is a racist,” she said.

The important question, Bernstein said, is whether Sterling’s behavior is any different than it would have been years ago.

“If this is the way he’s been the last five, 10, 15, or 20 years … they’re not indicative of anything other than who he is as a person,” Bernstein said.

If, however, there is a legitimate dementia diagnosis, it could lessen the wrath from the public in recent weeks over Sterling’s comments.

It could also be helpful to Sterling’s wife, who has a 50 percent ownership interest in the team and told Walters earlier this week she would fight to keep it.

“If the statements he made are the product of a disease process, and not stupidity, malice or racism, then that put his culpability in a different ball game,” Bernstein said.

It may not allow Sterling to stay on as an owner of the team — he would be unfit to run it — but it could help his wife.

“It would explain why he did what he did, and would provide an explanation in the public eye that he doesn’t seem as bad a person,” said Francis Shen, a professor at the University of Minnesota Law School.

Dementia and other forms of cognitive impairment often come into play — in both civil and criminal courts, but Shen said, the law has not been as quick to evolve with the growing understanding of mental health issues.

In civil cases, a lack of capacity can be used to explain away bad business decisions, or to challenge the changing of a will.

And in criminal court, defendants often try to lessen their responsibility by citing mental illness, but it rarely works. That’s because jurors are skeptical, Bernstein said, and often those defenses are used in combination with cases where the facts are horrific.

“It’s remarkably inefficient,” Bernstein said. “The vast majority of mental health defenses fail.”