Castro was convicted of murder and sentenced to death. He argued that he had been denied the effective assistance of counsel because his trial counsel had failed to investigate and present to the jury evidence which might have persuaded the jury to vote for a sentence of life imprisonment, rather than the death penalty. One of several problems which Castro asserted his attorney had failed to investigate was the possibility that Castro suffered from fetal alcohol syndrome. (138 F. 3d at 831-32).

The court of appeals held that, even if the attorney had acted improperly in failing to investigate Castro's background, the jury would almost certainly have sentenced Castro to death anyway. (138 F. 3d at 832). That portion of the opinion so holding contains no specific discussion of FAS/FAE. Although there is a reference to the possibility of organic brain damage, this seems to be about a problem separate from the possible FAS/FAE.

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