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Defense: Death Row inmate has no frontal lobe

LOUISVILLE — Kevin Wayne Dunlap's decision to plead guilty to killing three children and attacking a woman in her home near Fort Campbell caught his attorneys by surprise. Now, they think they understand why.

Defense attorneys say the former special operations soldier is missing the frontal lobe in his brain that controls impulses and decision making. The damage rendered Dunlap incompetent to plead guilty to a capital offense, defense attorney Kathleen Schmidt wrote in a brief to the Kentucky Supreme Court, which will hear arguments in Dunlap's case Aug. 16 in Frankfort.

Schmidt raised the issue of Dunlap's competency in a brief and also wrote that the motivations behind Dunlap's decision to plead guilty "are murky at best, unfathomable at their heart."

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"Dunlap's behavior was perplexing from the start," Schmidt said. "In short, he was willing to plead guilty even though he did not even know for certain what he was pleading to at the time the judge conducted the plea colloquy and he admitted guilt. What could be more impulsive?"

The judge who sentenced Dunlap to death, as well as prosecutors, say he's been examined, and no basis for a claim of mental incompetence has been found.

Dunlap, 40, was sentenced to death March 19, 2010. He pleaded guilty to stabbing and killing Ethan Frensley, 5, Kayla Williams, 17, and Kortney Frensley, 14, when they returned home from school on Oct. 15, 2008, in Roaring Springs, near the sprawling Fort Campbell military installation on the Kentucky-Tennessee state line. Dunlap is on Kentucky's Death Row at the state penitentiary in Eddyville.

Earlier in the day of the killings, Dunlap tied up the mother of the children, Kristy Frensley, then raped and attempted to stab her to death. Dunlap set the house on fire, but Kristy Frensley escaped by rolling out the back door.

The Associated Press generally does not identify victims of sexual assault, but Kristy Frensley gave her permission during the legal proceedings for her name to be used.

Dunlap initially asked to plead guilty but mentally ill. Livingston Circuit Judge C.A. Woodall rejected the request after reviewing evidence and accepted a guilty plea with no conditions. He later followed a jury's recommendation and sentenced Dunlap to death.

Defense attorneys said Dunlap has a malformation in his right frontal lobe — there is a tangle of arteries and veins where the brain matter that controls judgment, self-control, inhibition and social interaction should be. Schmidt said the malformation wasn't discovered until six days before trial.

The brain damage affected Dunlap's ability to behave rationally at the time of the crime — when he wore his work uniform from DirectTV and made no effort to hide his identity or role in the killings — and when he pleaded guilty, Schmidt said.

"Whether he specifically asked to be sentenced to death is irrelevant," Schmidt wrote. "The consequences of Dunlap's decision were exactly the same as if he had told the trial court he wanted a death sentence."

Dr. Robert Friedland, chair of the Department of Neurology at the University of Louisville School of Medicine, said damage to the right frontal lobe could affect inhibition, personality, reasoning and judgment. Someone with frontal lobe damage might have trouble comprehending what he is doing at a certain time if his situation changes suddenly, said Friedland, who is not involved in Dunlap's case.

"The overwhelming majority of people never commit any homicidal or other criminal acts. It's an extraordinary event for any act to be directly associated with a lesion of the brain," Friedman said. "It's not completely unknown, though. They consider things like this when deciding what penalty to give."

Assistant Attorney General David B. Abner wrote that doctors at the Kentucky Correctional Psychiatric Center determined Dunlap was competent to stand trial and understood the nature of the crime. The brain abnormality would have been present when he was evaluated and can't be used to show Dunlap was mentally ill or incompetent, Abner wrote.

"Thus, if Dunlap was competent to stand trial, he was competent to plead guilty," Abner wrote. "To say that Dunlap's plea by its nature demonstrates incompetence is to denigrate Dunlap's freedom to choose."

Dunlap served in the Army from 1989 until 2002, including working as a helicopter mechanic for the 160th Special Operations Aviation Regiment, a group known as the Night Stalkers. After being released from the Army, he served two years with the Kentucky National Guard in a now-defunct unit based in Hopkinsville.

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