Miller v. State
942 S.W. 2d 825, 328 Ark. 121 (1997)
Miller was convicted of murder and sentenced to life imprisonment
without possibility of parole.
Prior to trial the defense filed a motion for the appointment of
an expert to conduct an examination for possible brain damage due to
prenatal alcohol exposure. Apparently the questions at issue were (a)
Miller's competence to stand trial, and (b) whether he had the capacity to
appreciate the criminality of his conduct or to conform his actions to the
requirements of the law. This motion was based the recommendation of
Miller's psychiatrist. The motion was granted, and the examination was to
be provided at the state hospital "as determined by" Miller's
psychiatrist. 942 S.W. 2d at 827.
The neurological assessment indicated that:
"Taken together, available data suggest relatively mild to
moderate cortical dysfunction that is primarily evidenced through deficits
on memory-based tasks and tasks involving ongoing attention and
concentration. At the same time, he is over average intelligence, and he
manifests some real strengths on complex cognitive tasks. He does display
the kind of weakness on tasks requiring executive functions that is
sometimes associated with poor impulse control. I find no evidence to
suggest that Mr. Miller suffers from residuals from Fetal Alcohol
Syndrome, since he does not display the intellectual deficits that are
almost invariably associated with that syndrome."
942 S.W. 2d at 828. Some additional but unidentified tests on Miller
"were interpreted as being normal." This assessment appears to conclude
that Miller did not have FAS because a low IQ is "almost invariably"
associated with FAS. That is incorrect; individuals with FAS who have an
average IQ are not uncommon.
In response to this diagnosis, defense counsel asked for a
continuance to obtain an out of state neuropsychologist, on the ground
that it was difficult to obtain a competent neuropsychologist in Arkansas.
That motion was denied. 942 S.W. 2d at 828. (Note here the case from
Mississippi holding that failure to inquire into FAS was not ineffective
assistance of counsel because there was no showing that a competent expert
on FAS existed in the state of Mississippi).