‘Superfly’s new move: the ‘punch drunk’ defense
How pro-wrestling star’s murder case is changing the game for athletes on trial
IN MAY, World Wrestling Federation legend Jimmy “Superfly” Snuka sat in a witness box and told a judge that he couldn’t recall the name of the president or his own age.
“It’s bad when you get hit in the head,” Snuka said.
Two weeks later, the Lehigh County, Pa., judge ruled that Snuka was incompetent to stand trial for the 1983 homicide of his girlfriend, Nancy Argentino, who had died from traumatic head injuries in the George Washington Motor Lodge, a flea-bag motel in Allentown, Pa.
At the time, investigators ruled out foul play and the case went cold.
That changed in 2013, on the 30th anniversary of Argentino’s death, when a previously unseen autopsy report surfaced suggesting abuse and calling for a homicide investigation. In 2015, Snuka was charged with third-degree murder and involuntary manslaughter, facing 20 to 40 years behind bars.
His lawyers argued that decades of getting banged around in the ring had caused dementia, rendering him incapable of understanding what was happening. Frank M. Dattilio, a forensic psychologist hired by the defense, called Snuka a “shell of a man.”
Some think that the defense is taking advantage of the recent media coverage of sports-related CTE, or chronic traumatic encephalopathy. A degenerative brain condition caused by head injuries and concussions, it’s often associated with professional athletes from the football and hockey worlds who suffer blow after blow in play.
“I think they’re using it as a strategy, and the goal was to find him incompetent, which was successful,” says John O’Brien, a forensic psychiatrist and physician who testified for the prosecution during Snuka’s competency hearing.
There is also concern about the wider impact CTE will have on the court system. Could other athletes like Snuka claim that head trauma has rendered them unfit to stand trial or, in extraordinary cases, directly led to a crime being committed?
“It is a kind of get-of-out-jailfree card if that happens,” O’Brien says.
Snuka is expected to return to court as early as December, and he will likely face repeated medical evaluations until his condition improves or charges are dropped. But while Snuka is not entirely off the hook, he appears to be booking up his social calendar: It was recently announced that he will sign autographs as part of WrestleMania 33 in Orlando, Fla., next April.
O’BRIEN, for one, is dubious of Snuka’s doddering demeanor in the courtroom. “When I saw [Snuka], I thought he was intentionally not answering the questions and acting befuddled,” he says.
What’s especially glaring, he says, is Snuka’s contradictory medical profile. “There was an allegation made that he had multiple episodes of head trauma, but it’s not backed up in his medical records,” O’Brien says.
The forensic psychiatrist considers Snuka’s courtroom performance a matter of life imitating art, contending that the wrestler had been no more prone to injury in the ring than an accountant would have been in the office.
He cites perfectly orchestrated moves artfully designed to avoid actual injury, such as Snuka’s signature “Superfly Splash” — a lunge from the ropes onto an opponent.
“They don’t make money by hurting and disabling each other,” O’Brien says. “It’s for the entertainment value, doing it one day to the next. It’s not the type of athletic activity like football or boxing, where there’s anticipation of potential injury.”
According to the Boston University CTE Center, CTE “is asso- ciated with memory loss, confusion, impaired judgment, impulse control problems, aggression, depression and, eventually, progressive dementia.”
Suicide is also linked to CTE, and the latest pro-athlete casualty is BMX rider and X Games champ Dave Mirra, who killed himself in February of this year and was diagnosed with the disease postmortem.
Right now, a definitive CTE diagnosis is limited to posthumous cases in which the actual brain can be examined.
Technology could change this. Researchers are looking to develop techniques to accurately diagnose CTE in the living.
LEGAL eagles are already speculating about the ripple effect of a CTE defense in the criminal-justice system.
“If this is really going to be a defense strategy, it’s going to spread like wildfire,” says Lawrence Kobilinsky, a professor of forensic science at John Jay College of Criminal Justice.
“People are going to claim they’re pummeled in sports, or whatever their profession is. The ramifications are very serious. You don’t want people walking away after committing heinous crimes.”
Earlier this year, top CTE expert Dr. Bennet Omalu — best known as the subject of the 2015
movie “Concussion,” in which he was portrayed by Will Smith — told ABC News that “O.J. Simpson is more likely than not to suffer from CTE.”
In a sworn statement he gave at his 2008 conviction for armed robbery and kidnapping, the former football star said, “I was knocked out of games for such head blows repeatedly in the 1970s and other times I continued playing despite hard blows to my head during football games.”
Still, former Simpson attorney Yale Galanter tells The Post that a CTE defense “was never seriously contemplated” by Simpson’s legal team.
Simpson, who is serving a nine- to 33-year sentence in Nevada state prison, is up for parole in 2017. While a CTE diagnosis won’t impact his parole hearing, which would be based on his jailhouse behavior, it could be valid at an actual trial.
Mark Granger, an upstate New York attorney well-versed in concussion litigation, characterizes the defense’s likely argument: “He was so brain damaged, he couldn’t tell right from wrong.”
But Granger, a lawyer for 35 years, doesn’t think the CTE defense will radically alter the legal landscape — or pass muster with most juries.
“Lawyers are clever. That’s why they’re lawyers. But can someone testify beyond a reasonable doubt that they have CTE?” he says.
Even if CTE is proven in a defendant, there’s still a matter of cause and effect. Was it CTE that led to the crime, or something else?
“I don’t think this would do any better than the insanity defense has done long-term,” Granger says. “And it hasn’t done well. It’s not a defense that often works. My gut is, if it’s given to a jury to deal with, that’s [a] wild card [in terms of ] how they’ll see it.” THE insanity defense is argued in a mere 1 percent of felony cases, with an average 25 percent success rate, according to a 1990s study commissioned by the National Institute of Mental Health.
But, unlike insanity, CTE is a specific disease with credible diagnostic tools that will only get better with time.
“The CTE thing is real,” says former Queens County prosecutor Hermann Walz. “When people claim they’re insane, it’s hard to establish.
“This is going to boil down to science, which is developing,” Walz adds, stressing that prosecutors will make a costly move if they deny the existence of CTE.
“If you’re a bad prosecutor, you’ll pretend this is a joke. Try jumping 25 feet in the air [like Snuka] and landing on someone night after night. It’s not all an act. When you punch each other, when you’re picked up and slammed on your back. It adds up after a lifetime. I wouldn’t personally or professionally dismiss it.”
The former prosecutor says we’re at a new frontier in the court system.
“It may be new, but there’s a legitimate science that shows CTE is real and to ignore it is almost ignorant,” he says. “DNA has changed the criminal-justice system overwhelmingly — it’s helped acquit people and find criminals 20 years later. This will have an impact as well.”