Foell was convicted of murder. He brought a post-conviction proceeding, and alleged that he had been denied the effective assistance of counsel, relying largely on the failure of he attorney to introduce evidence that Foell had FAS.

Foell argued, first, that that evidence would have demonstrated that he lacked the specific intent necessary for a conviction of first degree murder. It is not entirely clear what specific intent was required by state law. The appellate court rejected this argument on two grounds. (1) "The argument that Foell was only guilty of second-degree murder was well developed and presented by his trial attorney." 2001 WL 1658885 at *3. The difficulty with this explanation is that the argument which was actually made was not sufficiently persuasive; evidence of FAS might have made it more so. (2) "Foell's trial attorney did substantial research before trial and found no case where the syndrome had been successfully raised as a defense. The decision not to attempt to introduce such evidence was a strategic decision." 2001 WL 1658885 at *3. Research was unlikely to unearth such a case, since a successful defense would result in an acquittal and thus no published opinion. The relevant question was more of a medical nature--is FAS capable of preventing an offender from forming a particular specific intent? There is no suggestion that the trial attorney evaluated that issue.

Foell also objected that evidence that he had FAS should have been offered to show that his confession was not based on a knowing waiver of his Miranda rights. The appellate court rejected this, stating "Foell has failed to show that advancing [the FAS argument] at the time of the suppression hearing would have resulted in the suppression of Foell's confession. Similar claims for suppression of confessions have not been successful." 2001 WL 1658885 at *3. The opinion cites four earlier Iowa decisions. Those cases, however, hold that limited intelligence is relevant to a determination of whether a waiver was knowing, and insist that that determination is primarily the responsibility of the trial judge. The fact that an appellate court might have sustained the admission of the confession, despite evidence of FAS, is not the same as a prediction about how the trial judge would have weighed that evidence.

In the reported cases confessions were admitted from defendants with low IQs; in several of them the court was convinced the waiver was knowing because the defendant had held a job, had repeatedly been given the same warnings in prior arrests, or had been given a special version of Miranda for juveniles. One case mentions an expert who did a study and concluded that individuals with an IQ of 70 or below are unlikely to understand a Miranda warning.

The court cited cases are State v. Rhombert, 516 N.W. 2d 803, 806-07 (Iowa 1994); State v. Reid, 394 N.W. 2d 399, 401-04 (Iowa 1986); State v. Conner, 241 N.W. 2d 447, 453-54 (Iowa 1976); State v. Fetters, 202 N.W. 2d 84, 87-90 (Iowa 1972). These decisions at times fail to distinguish between claims of involuntariness and claims that a waiver, although not coerced, was not knowing.