Murphy was court martialed for three murders, and sentenced to death. Following conviction he obtained diagnoses or affidavits from five physicians, all of which raised questions about whether he was incapable of forming the requisite intent to commit premeditated murder. One psychiatrist noted that Murphy's limited intellectual functioning was "consistent with organic brain damage, perhaps as a result of fetal alcohol syndrome." A pediatrician concluded that the amount of alcohol consumed by Murphy's mother was sufficient to cause organic brain damage, and that further examination for FAS was warranted. None of the experts made a diagnosis of FAS/FAE. (50 M.J. at 14.)

The U.S. Court of Appeals for the Armed Forces declined to affirm the death sentence, relying on three factors, including the potential mitigating effect of the post trial evidence regarding Murphy's mental status (of which possible FAS was a part). Military law evidently permitted consideration of such post trial evidence in a manner that would not be possible in federal habeas corpus regarding a regular criminal trial.

That court remanded the case to the U.S. Army Court of Criminal Appeals to decide whether consideration of that new evidence might reasonably have led to a different sentence. (50 M.J. at 16). On remand the Army Court of Criminal Appeals decided that resolution of that issue required an evidentiary hearing. (56 M.J. at 647). This disposition was significant because in habeas corpus actions federal courts have almost uniformly held that the jury would have imposed the same sentence even if it knew that the defendant had FAS/FAE.

URL: