Could Shelley Sterling’s ‘Early Onset Dementia’ Claim Belong To A Greater Legal Strategy?

In the telling of Shelly Sterling, wife of Donald Sterling, the disgraced owner of the Los Angeles Clippers basketball team, the appalling racist comments he made are less a sign of his true views than a symptom of the dementia that has seized his brain. So she said during a Sunday interview with Barbara Walters.

But people expert in dementia say that characterization could be indicative of something else -- a novel line of defense increasingly in vogue as people caught saying or doing abhorrent things distance themselves from responsibility through claims of dementia.

“Even a cursory view of the contemporary literature reveals an increased trend, if not attempts to rely upon neuroscience and neurological testing to provide insights, views or even decisions on things like personal responsibility and in some cases, capability and culpability,” said James Giordano, a neuroscientist and neuroethicist at Georgetown University in Washington. “More and more, of what we’re seeing is that there are those people in the law and even people in public positions are turning towards, or in some cases, looking to lean on neurology and the brain sciences for the development of an insanity defense or some deferment of their responsibility. In other words, 'My brain made me do it.'”

In Sterling’s case, Giordano suggested, a troubled brain might actually play some role. Given his advanced age of 80, and given his seemingly uncontrollable racist outbursts, it is indeed possible that Sterling is experiencing vascular dementia, mini strokes or early to intermediate stages of Alzheimer’s disease, Giordano said, though diagnosis would require extensive medical testing, including brain imaging and neurological examinations.

Shelley Sterling said her dementia theory comes from a conversation she had with her husband in which he forgot the taped conversation he’d had with V. Stiviano during which he told her to stop associating with black people and to not bring them to Los Angeles Clippers games.

"I don't remember saying that. I don't remember ever saying those things," Shelley Sterling recalled her husband saying after listening to the recording. "I said, 'Well, this is the tape.' And he says, 'Hmm. I don't remember it.' That's when I thought he had dementia."

Of course, it’s not unusual for people to deny remembering things they don’t want to admit having done -- children do it. But even if Sterling does have a neurological disorder, is that enough to say he isn’t responsible for the comments he made?

“That’s tricky. Because in some cases the answer is yes and in other cases the answer is no,” Giordano said. “We’re looking at this from a distance, so we don’t know what’s going on intimately. We don’t know what this guy is like on a daily basis. We see his public face and here he is scrambling trying to cover up a set of statements that are obviously way over the top and way out of line.”

Carole Lieberman, a psychiatrist on the Clinical Faculty of UCLA's Neuropsychiatric Institute who treats patients with dementia, said the dementia claim could be part of a legal defense, but would still lead to further questions for the NBA.

“On the one hand, it would make him seem more sympathetic, and a graceful way to exit the racist scandal he's in,” Lieberman told IBTimes. “But, on the other hand, it would make it that much easier for the NBA to force him to sell the team, since a demented owner would not be able to make the proper decisions.”

Adding to the speculation, a day after Shelley Sterling’s interview aired, Donald Sterling dug himself into a deeper hole with CNN’s Anderson Cooper. In an apparent attempt to apologize for his recorded comments, Sterling slammed Magic Johnson’s character and his diagnosis with HIV, saying he is not a positive role model for children. He also derided African-Americans for not contributing to their communities as much as Jewish people do.

"That's one problem I have. Jews, when they get successful, they will help their people, and some of the African-Americans -- maybe I'll get in trouble again -- they don't want to help anybody," Sterling said.

When Cooper asked, "So are you saying that African-Americans don't contribute to African-American communities as much as Jewish people --"

Sterling responded, "There's no African-American -- Never mind, I don't know, I'm sorry. You know, they all want to play golf with me. Everybody wants to be with me. I'm easy. I'm fun."

Whether or not Sterling has a neurological disorder, the very possibility that he could use it as a defense for his actions raises other questions.

That defense could come into play should Sterling sue to retain ownership of the Clippers, for example.

Nita Farahany, a professor of law who sits on President Barack Obama’s bioethics advisory panel, told The Guardian in November that an increasing number of "neurolaw" cases in the United States involve defendants using neurological evidence to prove they are not responsible for their criminal actions. She pointed to a survey of more than 1,500 judicial opinions from 2005 to 2012 where the number of neurolaw cases rose from 100 to 250 a year over that period.

“This is contentious stuff,” Giordano said, referring to the field of neurolaw. “They have to demonstrate, in this particular situation, this guy’s brain function is deteriorated to the extent that he’s not able to demonstrate ongoing responsibility for the consequences of his words and his actions.”

Sterling, who is known to be among the most litigious people in sports, has been accused of discriminatory behavior in the past. In 2009, Elgin Baylor filed a wrongful termination and discrimination suit on the basis of age and race against the Clippers. A jury favored Sterling in March 2011. In the original lawsuit, Baylor cited Sterling’s “vision of a Southern plantation-type structure” and his “pervasive and ongoing racist attitude.”

He was sued twice on claims of housing discrimination, in 2003 and 2006. The first was brought by 19 plaintiffs who accused Sterling of forcing African-Americans and Latinos out of his properties. The second suit, brought by the U.S. Department of Justice, accused him of refusing to rent to African-Americans in Beverly Hills and to non-Koreans in Los Angeles’ Koreatown.

While neurological disorders could cause a complete personality change in an individual, they also could exacerbate behavioral traits that are already there, Giordano explained.

However, if Sterling is healthy and attempts to use his wife’s dementia allegation to his advantage – either to keep his team or give reason for his racist comments – he wouldn’t be the first to do so.

“Sure, he could fake it,” Giordano said. “Patients do this all the time. It’s called ‘faking bad.' They try to demonstrate problems with memory, problems with responsibility or consequences. Truth be known, some of them get away with it. But these days there are much more sophisticated neurological and neuropsychological tests that are able to sift through that.”