Sullivan v. State of Delaware
1998 WL 231264 (D. Del. 1998)
1995 WL 465172 (Del. Super.)(related state court decision)

Sullivan was convicted of murder and sentenced to death. He brought this federal habeas corpus action seeking to overturn his conviction or sentence. One basis for the habeas action was Sullivan's claim that his original attorney had acted improperly in failing to investigate whether Sullivan had FAS/FAE. The court concluded that there had been no denial of effective assistance of counsel.

The attorney involved had obtained some relevant factual information, and the court concluded that the failure to pursue the matter further was justified by the fact that the information given to the attorney was either inaccurate or incomplete: (1) Sullivan told the attorney there was no history of "alcoholism" in his family, (2) Sullivan's mother and sister told the attorney that he was a normal child until after his father died when the child was 8, and (3) the mother did not disclose to the attorney that she drank heavily during her pregnancy. 1998 WL 231264 at *23-*24. The state judge also concluded for similar reasons that the information known to the defense attorney was not sufficient to warrant investigating FAS/FAE. 1995 WL 465172 at *8.

In light of current understanding of FAS/FAE, the attorney's efforts appear to have been inadequate. (1) The attorney knew that the mother had "a drinking problem" (1995 WL 231264 at *2; 1995 WL 465172 *3). That should have been sufficient to lead a defense attorney to make further inquiry. The attorney did not tell the experts to consider FAS. Although the opinion notes that the mother did not tell the attorney that she drank heavily during her pregnancy, it does not appear that she was actually asked about drinking during the pregnancy. She later responded to a specific question by stating that she drank two pints of liquor a day during the pregnancy. (2) A mother who is not an alcoholic could still drink enough to cause FAS/FAE. (3) A parent's conclusory description of the child as "normal" is not terribly informative. (4) Although one of the experts concluded, and advised the attorney, that Sullivan was mentally retarded, neither the expert nor the attorney apparently made any effort to determine why he was retarded. (1995 WL 465172 at *5).

Nevertheless, the case appears to support the proposition that at least some inquiry must be made about FAS/FAE.

The decision contains this description of FAS/FAE:

"FAS/FAE is a specific pattern of fetal malformation characterized by morphological features such as craniofacial anomalies and limb defects, and behavior characteristics, such as cognitive deficiencies, hyperactivity, and impulsivity, found among the offspring of mothers who are chronic alcoholics. . . . An individual need not possess every characteristic associated with FAS/FAE to be so diagnosed. . . . In fact, the physical characteristics tend to ameliorate over time, whereas the behavior and intellectual characteristics remain constant."

1998 WL 231264 *11 n. 8. This description contains two important errors. First, the physical features noted by the court are limited to FAS. Second, a mother could drink enough to cause FAS/FAE without being a "chronic alcoholic."

The defense contention with regard to the merits of the crime appeared to be that one or more of several other individuals, two of whom accused Sullivan of the crime, had actually committed it, and that Sullivan had a dependent personality and was induced to play a role in the crime by the others. 1998 WL 231264 at *5-*7.