Brown was convicted of two murders, and sentenced to 50 years in prison on each. On appeal he argued that the trial judge had failed to consider his FAS as a mitigating factor. 659 N.E. 2d at 674.

The sentencing judge did expressly consider eleven mitigating factors. The appellate court described one of those as being the fact that "Brown had a significant history of psychiatric referrals and diagnoses due to his behavioral problems." (659 N.E. 2d at 675). It is unclear whether this was a general mitigating factor that would have included FAS, or whether the sentencing judge did not expressly consider the FAS issue. If the latter, then it is unclear whether the appellate court did not recognize that that issue had been ignored, or merely felt that the judge's decision was otherwise so thorough that it should not be reversed merely because the opinion did not expressly mention a twelfth mitigating factor.