Cherry was convicted of murder and sentenced to death. He sought post-conviction relief, asserting that his attorney had failed to provide effective assistance at sentencing. The attorney conducted no investigation related to mitigation and called no witnesses at the sentencing hearing.

In the post-conviction proceeding, Cherry attempted to prove that an investigation would have revealed that he had FAS, which (he asserted) would have been an important mitigating factor. The state judge who heard this claim held that he was not convinced that Cherry actually had FAS. The state Supreme Court affirmed, with one lengthy dissenting opinion.

The state judge appears not to have understood how FAS is diagnosed. Cherry's expert did a number of neuropsychological tests and concluded that Cherry had organic brain damage caused by FAS. (781 So. 2d 1060). The judge objected, however, that the expert had not based his diagnosis on any "physical test results." (781 So. 2d at 1044). At least as of 2001 there were no physical tests for FAS-based organic brain damage.

The expert relied on "accounts of [Cherry's] mother's alcohol abuse." (781 So. 2d at 1044). The state judge objected that it was mere "speculation" whether she drank during the pregnancy. As a practical matter it is likely that a woman with an alcohol problem would continue to drink during a pregnancy. It is unclear whether in this Cherry should have elicited information focusing specifically on the mother's alcohol use during the pregnancy. In some instances, however, information specific to a particular 9 month period 20 or more years ago may not be available.

At the time of trial Cherry was interviewed by an expert to assess his competency to stand trial; the expert then concluded Cherry was "of average intelligence." (781 So. 2d at 1045). After his conviction, Cherry was actually tested, and found to have an IQ of only 72. The state judge insisted Cherry was not retarded because the definition of "retarded" is limited to individuals with an IQ of 70 or less. [The difference between 72 and 70 is too small to be statistically meaningful.]

Although at the time of trial an expert was appointed to determine whether Cherry was competent to stand trial, the expert was not authorized to determine whether mitigating factors were present. The state judge concluded that that limitation was proper, because state law did not authorize the appointment of experts to develop mitigating evidence. (781 So. 2d 1047). [This appears to be inconsistent with the Supreme Court decision in Ake v. Oklahoma, 470 U.S. 68 (1985)]