Harris v. Vasquez
913 F. 2d 606 (9th Cir. 1990)
In 1979 Harris was convicted of murder and sentenced to death. In
1990 he filed a federal habeas corpus action seeking to overturn that
sentence.
At the original 1979 trial Harris' attorney did not raise any
issues regarding FAS, and was evidently unaware that Harris might have
FAS. Harris' trial attorney retained two psychiatrists to go over the
case, but neither of them raised the possibility that Harris might have
FAS. In the 1990 federal habeas corpus action, Harris offered diagnoses
from three different physicians, all of whom agreed that Harris had FAS.
(1) The main question before the federal court in 1990
was whether the failure of the original (1979) psychiatrists to identify
the
problem of FAS violated Harris' rights. Criminal defendants in some
circumstances do have a right to the assistance of a psychiatrist. Ake v.
Oklahoma, 470 U.S. 68 (1985). A majority of the court of appeals,
however, concluded that Ake did not give a defendant like Harris a right
to attack after the fact the competence of the psychiatrists who
represented him at trial. (913 F. 2d at 619-21).
(2) The majority held that Harris did not have "new evidence",
since the information suggesting he had FAS was available at the time of
the 1979 trial. (913 F. 2d at 626-27). [That, of course, was the evidence
the earlier psychiatrists did not recognize as showing that Harris might
have FAS].
(3) The majority also concluded that it was unlikely the jury's
verdict would have been different if the jury had known that Harris had
FAS. 913 F. 2d at 627.
A dissenting opinion by Judge Noonan urged that Harris should have
been afforded a hearing on his claims. Noonan argued that with the
assistance of more competent experts, who had identified FAS as the likely
diagnosis, Harris' attorney in 1979 might have been able to convince the
jury that the prosecution's diagnosis of Harris was inaccurate.
This case appears to illustrate several important problems.
First, the medical experts retained for the 1979 trial were
both psychiatrists. There is no distinct category for FAS/FAE in the
Diagnostic and Statistical Manual of Mental Disorders (DSM) on which
psychiatrists generally rely. Some Canadian judges do not regard
psychiatrists as competent to diagnose whether a defendant has FAS. Thus,
although two of the three experts who in 1990 diagnosed Harris with FAS
were psychiatrists, it is possible that the reason this diagnosis was
missed in 1979 was that Harris' attorney had consulted the wrong type of
medical expert. Unless a defense attorney both can recognize symptoms of
possible FAS, and understands what type of expert to retain to evaluate
that problem, an FAS diagnosis and defense (or mitigation factor) may well
be overlooked.
Second, the key prosecution witness at the sentencing
hearing,
also a psychiatrist, diagnosed Harris as having "antisocial personality
No. 304.8", relying on the second edition of the DSM.
The prosecution psychiatrist testified that there were eleven
characteristics of such a "sociopath." That list, quoted below, includes
many classic symptoms (underlined) of FAS. the witness stated that
"these individuals are immature, emotionally unstable,
they're callous, rather rigid at times, they're irresponsible,
impulsive, egotistical, somewhat passively aggressive at times,
they seem to have an inability to profit from past experience or
punishment. They have a very low
frustration scale, and they tend to rationalize in order to
explain their behavior and their difficulty."
(913 F. 2d at 612).
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