Sullivan was convicted of murder and several other crimes, and sentenced to death. He attacked his conviction on the ground, among other things, that his trial attorney had not investigated whether Sullivan had FAS/FAE, and had not asked to have a psychiatrist appointed to evaluate whether Sullivan had FAS/FAE. The court rejected that claim.

The court proceeded from the premise that the failure to investigate that (or any other) possible mitigating evidence did not constitute ineffective representation if the defendant gave counsel "reason to believe that a line of investigation should not be pursued." 1995 WL 465172 at *8. The court held that Sullivan had given his attorney reason to believe that investigation of FAS/FAE would be unproductive because at his intake interview Sullivan stated that his family did not have a "history of alcoholism." 1995 WL 465172 at *3, *8. However, the record also confirmed that the trial attorney had been told that the mother at that point in time had a drinking problem, and appeared drunk to those who met her. The court does not explain why the attorney was not ineffective in ignoring this information.

The circumstances of this litigation are an important guide for how an attorney should determine whether FAS/FAE needs to be investigated. After the conviction Sullivan was diagnosed with FAS, and the correctness of that diagnosis was not questioned. The critical issue, then, is why his trial attorney mistakenly thought the matter not worth pursuing.

The court noted a variety of factors which led counsel to decide not to pursue this issue. (a) The defendant denied there was a history of alcoholism in his family. (This query may have been unreliable for several reasons. It is unclear what the defendant would have understood to constitute alcoholism. A level of drinking short of alcoholism is sufficient to cause FAS/FAE.) (b) The defendant's mother and sister stated he was "normal" until the age of 8. (What did they mean by "normal"--was this about IQ, behavior, physical appearance, social relationships? Why would an attorney rely on the judgment of a witness whom he knew had a drinking problem?) (c) The hospital record of Sullivan's birth describes him as a healthy newborn with no developmental abnormalities.

The critical problem in the attorney's evaluation is this. At no point did anyone simply ask the mother if she drank during her pregnancy. 1995 WL 465172 at *3. When asked that question following the initial trial, she readily disclosed that she drank two pints of liquor a day during her pregnancy. In retrospect, and for future cases, that seems a simple question that should be asked at least in any capital case.

The court also concluded that a diagnosis of FAS would not have affected the outcome of the sentencing phase because the court recognized after the original sentencing hearing that Sullivan had limited intelligence and reasoning powers. 1995 WL 465172 at *4, *9. This aspect of the decision appears not to understand that the impact of FAS is far more complex than the reduction of I.Q. level.