He chose the best place to do it. His office door was just a few floors away from the offices of Mark Mahowald and Carlos Schenck, the doctors who identified parasomnias and helped make the University of Minnesota one of the world’s foremost centers of sleep research. Based on the steady number of calls that the hospital’s sleep lab received from prosecutors dealing with defendants claiming to have a committed a crime during sleep, Cramer Bornemann realized that violent parasomnias may be more prevalent than originally thought. Even if everyone he studied was lying, he reasoned, he would gain valuable insights into how to spot a fake. He approached the hospital’s board, and soon afterward, Sleep Forensics Associates was recognized as a formal division in the neurology department. Cramer Bornemann has reviewed more than 130 cases since then. In almost all, he has looked for evidence of brain activity suggesting that an action was voluntary, following the same standard established by the Parks case.
Though it sounds like the sort of investigation that would have detectives bagging pillows for fingerprints, sleep forensics relies much more on witness testimony than physical evidence. Depending on what a defendant did and how he responded, Cramer Bornemann can extrapolate which parts of the brain were most likely working at a specific time. That can help him determine whether a person was sleepwalking or driven by another parasomnia. His goal is to determine how closely the subject’s brain came to what we think of as awareness. “What we are starting to understand is that as we transition from wake to sleep, we can subdivide and identify various components of consciousness,” he told me.
Several clues suggest which parts of a sleeping person’s brain are within conscious control at a particular moment. The easiest of these to spot with the naked eye is muscle tone, which is completely absent in REM sleep. (Patients with REM sleep disorder are the exception to this rule, but their episodes are almost always over in fifteen minutes or less. Meanwhile, sleepwalkers, if left undisturbed, can move around for more than an hour.) The two areas of the brain that Cramer Bornemann pays the most attention to are the reticular activating system, which sits where the head meets the spinal cord, and the prefrontal cortex, the same area behind the forehead that is so important in thoughtful decision making. In some stages of deep sleep, both of these areas completely shut down. With them go the ability to repress impulses and, ominously, the ability to feel pain.
This can lead to strange forms of misfortune. One night in the middle of winter, a man in Minneapolis woke up in his bed with the uncomfortable realization that his sheets were wet. Embarrassed that he had apparently soiled the bed for the first time in his adult life, he pulled back the covers and found that his feet were black from frostbite. He immediately woke up his wife, who called an ambulance. As the paramedics were taking her husband outside on a stretcher, she noticed footsteps leading away from the front door and into the fresh snow. She followed them in a three-block circle around their house. In his sleep, her husband, barefoot on a night when the temperatures were in the low twenties, had gone for a walk, following the same route he took with the family dog. The dog had remained warm in its bed at home.
Cramer Bornemann uses this tale as an example of what he calls process fractionalization, a way of splitting up the stages of consciousness in sleep. That the sleepwalker was able to withstand the cold while walking barefoot through the snow suggested to Cramer Bornemann that his brain was not processing sensory input, one function of the brain’s reticular activating system. It wasn’t until the sleepwalker got back into bed that he felt the sensation of wetness from the melting snow on his feet. By that time, the man’s brain was in a different stage of consciousness, allowing him to be aware of the wet bed and to wake up.
How does this relate to crime? Say a witness testifies that a barefoot man came after him with a baseball bat and stepped into a pile of broken glass but didn’t react. Or say a man like Ken Parks cuts his hands to the bone and doesn’t notice his injuries until he is spilling blood onto a police officer’s desk. Because neither person seemed to feel pain, it’s very unlikely that the parts of the brain that control consciousness were functioning at the time of the attacks. The body was taking actions independently of the mind, pushing these incidents into the realm of involuntary rather than criminal actions.
Prolonged sleepwalking incidents such as what occurred in the Parks case are rare, even in the new world of sleep crime. More often, Cramer Bornemann finds himself looking into cases of sexual assault, especially those brought on by alcohol. Almost half of the cases he studies involve a man sexually assaulting a woman or child after a night of heavy drinking. Cramer Bornemann argues that because binge drinking can lead to irrational behavior and slurred thought, the decision to down alcohol makes it impossible to tell whether a person was truly sleepwalking. Without any scientific backup, most defendants in these types of cases plead to a lesser charge if they can.
While science is on his side, Cramer Bornemann can’t always say the same for the legal system. Judges and lawyers routinely scoff at the notion that a sane person could commit a complex, violent act involuntarily in his sleep. In San Diego a fisherman was found guilty of murder despite claiming that he stabbed his girlfriend to death while he was dreaming in his sleep about gutting a shark. At his sentencing, a judge with the sporty name of Gary Ferrari dismissed the defense completely, saying from the bench, “This whole business of committing a murder while sleepwalking . . . I think the best word is sophistry.”
Cramer Bornemann thinks that the issue goes deeper than judges viewing sleepwalking as the latest implausible Twinkie defense. “We clearly conflict with the legal system,” he tells me one day while on a break from reviewing a case. He has deep reservations about the adversarial nature of a trial, with each side presenting its own paid experts who offer self-serving opinions. The law isn’t enough like science for him. “You have a medical expert on the prosecution and a medical expert on defense. To the jury they take equal weight. In science and in medicine, we don’t have a bipartisan system. What we have in medicine and science is a consensus-driven peer-review process,” he said. “If there’s a question whether someone needs to go to surgery and it’s a very risky procedure, what do we do? In medicine, we don’t get two surgeons and sit down and talk. We get in an auditorium and we run a morbidity and mortality conference. We get the best and brightest in the institution and we debate and criticize all the different angles to a case. Science doesn’t have to do with absolute truths. It has to do with likelihoods and probabilities.” In a legal system that deals in competing absolutes, Cramer Bornemann wants room for shades of gray.
Nevertheless, he sometimes testifies as an expert supporting either the prosecution or the defense (donating the money that he is paid to the university hospital), because he wants to play a part in getting the legal system to standardize how it views sleep and consciousness. “These cases may be the first times the criminal system will have to deal with these definitions of consciousness. And they will have to deal with it. Otherwise you are going to have these erratic and unpredictable outcomes,” he says. “The Parks case was a landmark case, but you still see very uneven renderings in courtrooms in how you handle a sleepwalking case. Sometimes you see full acquittals and sometimes in certain jurisdictions the attorney will say, ‘Well, it’s better to not try to go for a full acquittal’ and try to angle for the lesser charge of institutionalization or a plea deal.”
This often happens in violent cases involving children. A few months before we spoke, he received a call from an attorney who worked with the public defender’s office in Alaska. The attorney’s client was a man—almost all cases of sleep crime involve men, though Crammer Bornemann doesn’t know why—who lived with his wife in a trailer park. The couple’s sleep schedules were upended by the incessant cries of their colicky infant. After weeks of little sleep, they came to a compromise: one would stay up all night with the infant in the living room, while the other would get to have a relatively peaceful sleep in the couple�
��s bedroom. They would switch places every night.
It wasn’t a bad plan. The husband, however, had a history of sleepwalking. One night when it was his turn to stay awake, he fell asleep in the living room with the baby on his chest. During the night, he dreamed that a wild animal was attacking him and the only way to get away from the beast was by biting its head and throwing it off his body. When he woke up, he found his child, who appeared to be unhurt, underneath the coffee table. He picked him up and put him in his crib and then left for work. When his wife woke up a few hours later, she noticed that her son had bruises and bite marks on his head, and she immediately took him to the emergency room. Concerned by the unusual nature of the injuries, a nurse at the hospital called the police. Within a few hours, the father was arrested and charged with child abuse.
Cramer Bornemann agreed to review the case for the public defender’s office. He studied the child’s injuries and each parent’s statement, and eventually came to the conclusion that the father could have accidentally hurt his son during a violent sleep episode. But he also realized that there was little chance his opinion would hold much weight in the legal system. “There are significant weights on the prosecution to prosecute any type of child abuse or any type of sexual assault. It’s very unlikely that some prosecutor will say, ‘Sleepwalking, that’s a likely explanation,’ ” Cramer Bornemann said. In this case, the man agreed to plea a lesser charge before the trial.
Perhaps because he is developing a field focused on the outer limits of the brain’s actions, Cramer Bornemann accepts that certainty can be elusive. “I can never really know what happened on that particular evening,” he told me. “I’m different from other types of forensic investigators. I don’t have DNA. I don’t have tissue. I don’t have any formal type of material evidence to provide confirmation. All I have is behavior patterns, and based on these patterns I can evaluate the brain state of a particular time and assess a likelihood, assuming people are being honest. In the court system we assume honesty or it’s perjury. That’s all we have to go on. “
Even then, the results can be unsatisfying. In January of 1997, Scott Falater, a forty-three-year-old software engineer at Motorola who was active in his church, went into his home office after dinner to continue working on a stressful project. He knew that if it failed, there would be a round of layoffs at the company. Like others who go into software engineering, Falater was more comfortable with numbers than with social interaction. “He’s kind of nerdy,” his daughter would later say. Work was taking its toll: Falater had been sleeping less than four hours a night for nearly a week straight, and had turned to caffeine pills to try to stay awake. Before he went to bed, his wife, Yarmila, asked him to fix the filter in the swimming pool in their backyard in suburban Phoenix. Around 9:30, he said good night to his family and went to bed.
About an hour later, a neighbor next door heard screams coming from the Falaters’ house. He looked out of his window and saw what looked to be a woman’s body lying in their backyard. He then saw Scott Falater approach the body while putting on heavy canvas gloves. Falater dragged the body to the pool and rolled it into the water. The neighbor ran to his phone and called the police. At the same moment, Falater was taking off his bloody clothes and putting them in a plastic bag. He then stashed the bag in the wheel well of the family Volvo, put a bandage on his hand, and changed back into his pajamas. That’s how the police found him when they pulled up to the house moments later with their guns drawn. Falater was immediately handcuffed and arrested, and soon charged with first-degree murder. The coroner later concluded that he had stabbed his wife forty-four times with a hunting knife before holding her head underwater.
You can see where this is going. Falater claimed that he was sleepwalking at the time of the murder. His attorney called a number of witnesses who said he had no motive for the killing: Scott and Yarmila rarely fought, the family wasn’t facing any financial problems, and there was no evidence that either had had an affair. A number of sleep researchers testified in support of Falater, including two who had testified in the trial of Ken Parks (Cramer Bornemann, who had yet to form his sleep crime agency at the time, was not part of either trial). The defense argued that the incident was so clearly an accident that the prosecution needed to prove Falater wasn’t sleepwalking for there to be a case. The prosecution was having none of it. “They’re so quick to want to make this thing a cause célèbre,” one of the district attorneys told jurors. “I submit to you that [the credentials of the defendant’s sleep researchers] are nothing but steps to their shrines of self-indulgence.”
The jury deliberated for eight hours before it announced its decision: guilty. Though Falater faced the death penalty, he was sentenced to life in prison. As of 2010, he was state inmate 148979 in a jail south of Tucson, a few miles from the Mexican border. He has worked as an aide in the prison library and as an academic tutor for the past several years, where he has earned excellent reviews for his behavior and continued to maintain his innocence.
Imagine, for a second, that both Parks and Falater are telling the truth. In our current legal system, which views consciousness as an all-or-nothing affair, the outcome of their sleepwalking could land them in a mental institution, on death row, or completely free. Those extreme options interested Deborah Denno, a professor of law at Fordham University in New York City who has the rare distinction of having earned both a JD and a PhD in criminology from the University of Pennsylvania. As a legal scholar, she has written several influential law-review articles arguing that penalties for certain types of crimes are too harsh. Four Supreme Court justices have cited her work in their decisions. Recently, she turned her attention to whether findings in fields like psychology and sociology can inform the criminal system. In an article published in a journal called Behavioral Sciences and the Law, she argued that the way the courts view sleep is outdated and in need of reform.
On one spring day, I traveled uptown to meet her in her office in Manhattan. Across the street, tourists were gathering for a performance of South Pacific at Lincoln Center. Not long before we met, she had returned from Tokyo, where she gave a lecture at a leading Japanese law school on consciousness and culpability in the American legal system. While we spoke, she sat perched on the edge of her chair. Her twelve-year-old shih tzu took up the rest. “The law is both too narrow and too broad when it gets to these issues of consciousness,” she told me.
The legal system is built on the idea of uniformity: if an action is viewed as a crime in one jurisdiction, it is likely to be illegal in another. But, as Cramer Bornemann noted, that isn’t happening with cases of sleep crimes. Denno found that some courts viewed sleepwalking as a voluntary act, meaning any actions arising from it were considered crimes for which a defendant should be punished. Others, however, viewed parasomnias as involuntary and let defendants go, often without a hearing, much less a trial. There was no middle ground between incarceration and freedom, and no record of how often police officers dealt with cases of possible sleepwalking. Part of the reason for that, she says, is that the criminal code hasn’t been thoroughly updated since the 1950s, during a time when Freudian interpretations of consciousness still held considerable sway and the scientific understanding of sleep was rudimentary. Even now, the law sees all actions as either voluntary or involuntary. In her speech to the Japanese law students, Denno argued that this “is where the real injustice to a defendant lies.”
She thinks the criminal code needs a third choice: semi-voluntary. “That may sound strange coming from me, as a person who argues for lesser penalties, but we should have a choice that would net more people into the system,” she told me. As an example of what she means, she brings up Ken Parks. “I don’t think that he should have been acquitted,” she said. “There were aspects of his background that suggest that there should be another choice and a way to capture him into the criminal justice system. You may want to tell someone like Parks, ‘If for the next year you take your medication and kee
p out of trouble, then we won’t prosecute this crime.’ ”
Under Denno’s system, there would be a record of every incident in which sleepwalking turns violent. If a person doesn’t take steps to keep his or her condition in check—such as by taking clonazepam, a muscle relaxant that helps elderly men with REM sleep behavior disorder—then, Denno argues, that person should be held accountable for anything that happens while he or she is sleepwalking. In this system, sleepwalkers would be viewed in much the same way as loaded weapons: those who don’t handle themselves responsibly can be found guilty of criminal neglect. The change would go a long way toward making sleep cases less of an anomaly and would help develop a fair and dependable standard, she says. It would also pull out of the shadows cases of sleepwalkers committing violence and give researchers something sorely missing in the world of sleep crimes: data. “If someone asked me how many sleepwalkers get through criminal justice system, no one would be able to answer that question,” Denno told me. “Only if there was a murder would the courts ever see them. Otherwise, they are screened out of the system.”
Until there is a system to track how often sleepwalkers commit crimes, we are left with the notion that there may be more cases than scientists or lawyers realize. If you are the sort of person who likes to wager, there are pretty good odds that the person sleepwalking in your home won’t do anything more dangerous in the middle of the night than run into a wall. But infinitesimal chances sometimes happen.
Dreamland: Adventures in the Strange Science of Sleep Page 14