State v. Johnson
22 S.W. 2d 183 (Mo. 2000)
Johnson was convicted of murder and sentenced to death. Johnson
offered some evidence related to FAE, but it was not sufficient to
persuade the jury to vote for life imprisonment.
The relevant portion of the opinion states:
"Defendant emphasizes that he suffers from borderline retardation
(below average intelligence), reflecting Fetal Alcohol Effect and a head
injury. The jury heard expert evidence--from both defendant and the
State--including the flat statement of defendant's expert that defendant
'is not mentally retarded. The jury weighed the expert testimony, the
facts of this case, and evidence of defendant's long criminal history. In
fact, this Court has upheld the death penalty in cases where defendant
presented evidence of a low I.Q. and mental retardation."
22 S.W. 2d at 193. It appears that in the appellate court Johnson was
arguing only that the death penalty was inappropriate because of his
limited intelligence. It is unclear whether at trial the defendant urged
that FAE as such was a mitigating factor, or only relevant as a possible
method of proving limited intelligence.