Ex parte Dobyne
672 So. 2d 1354 (Ala. 1995)
Dobyne was convicted of murder and sentenced to death. Prior to
his trial Dobyne filed a motion for funds to hire a neurologist. Dobyne
offered evidence that he had FAS, and sought appointment of the
neurologist to confirm that diagnosis.
The trial court denied the motion, and the Alabama Supreme Court
affirmed. The appellate court reasoned that Dobyne had failed to show
that there was a "reasonable probability" that appointment of the
neurologist would have affected the outcome of the case.
The trial judge did provide funds to hire a "mitigation
investigator" to conduct a full investigation of his background, including
the fact that his mother had abused alcohol. 672 So. 2d at 1358. Dobyne
subsequently obtained a letter from a clinical psychologist (how he paid
for this is not clear) noting that Dobyne had a history of FAS. The
letter recommended two evaluations: (1) a neuropsychological evaluation,
to be done by the psychologist, and (2) a neurological evaluation. The
court agreed to funds for only the first.
The psychologist whom the court funded
"conducted the neuropsychological evaluation and explained that
such an evaluation involves the assessment of such functional abilities as
memory, problem solving, and language, through the use of standardized
psychometric tests. Neuropsychological evaluation results are able to
describe the functional deficits related to neurological problems."
672 So. 2d at 1358. The evaluation concluded that Dobyne had, and
described, "functional deficits that were related to neurological
conditions." 672 So. 2d at 1358.
The court concluded that appointment of a neurologist would have
been unlikely to affect the outcome of the case because that expert would
have been redundant. The neuropsychological tests alone met Dobyne's
trial needs.
"[The psychologist] explained that testing in a neurological
examination includes such procedures as an EEG, an MRI, and a CT scan, and
that that testing would assess and localize anatomical and physiological
details of
any neurological dysfunction."
672 So. 2d at 1358. The court reasoned
"A neurological evaluation would determine whether Dobyne had
actual brain damage. However, [the psychologist] testified that Dobyne
evidenced characteristics of a person with such a neurological condition.
A
neurological evaluation would merely be redundant of such testimony and
would add nothing significant."
672 So. 2d at 1359.
This decision is squarely inconsistent with the decision in
Cherry v. State, 781 So. 2d 1040 (Fla.
2000), holding that neuropsychological evidence of FAS was insufficient
because the defendant had failed to offer physical evidence of brain
damage. That decision held essential the very evidence which this
decision holds is entirely unnecessary. Both decisions appear to be
incorrect. Neuropsychological assessment is a
sufficient method of diagnosis, and in the past one of the primary methods
of diagnosis. On the other hand, a defendant should be offered the
opportunity to obtain neurological evidence, which a jury may find more
persuasive, particularly if the prosecution does not agree that FAS is
present.
Nonetheless, the fact that in this case first an investigator and
then a psychologist were funded by the court to look into FAS represents a
better response than occurs in many cases.