State v. Rose
339 N.C. 172, 451 S.E. 2d 211 (N.C. 1994)
Rose was convicted of murder and sentenced to death. He appealed
the sentence on the ground, among other things, that the trial judge had
refused to appoint a neuropsychologist to evaluate whether he had FAS.
The trial court's opinion, and that of the appellate court, appear
not to fully understand the distinction between (a) FAS and alcohol abuse
by the defendant, and (b) FAS and other behavioral disorders.
The appellate opinion notes that the trial court had appointed two
psychiatrists who concluded that Rose did or might suffer from eight
problems or disorders other than FAS. Rose offered an affidavit from a
neuropsychologist explaining that neurological and neuropsychological
testing would reveal whether Rose had FAS. The appellate court held:
"The affidavit, however, did not indicate how such further testing
would affect defendant's case. Two other psychiatrists had already
indicated that defendant suffered from alcohol abuse, and one had
indicated that he suffered from other disorders as well. Defendant
presented no evidence indicating a particularized need to establish that
he was suffering from Fetal Alcohol Syndrome."
451 S.E. 2d at 220.
FAS, of course, is entirely different from alcohol abuse. The
existence of evidence of "other disorders" does not mean that proof of FAS
might not be highly relevant.
This case does, however, illustrate the need for counsel to
articulate, and courts to understand, specifically why FAS would be a
mitigating factor--(1) it is organic in nature, not simply a clinical term
for a bad disposition, (2) it arises from circumstances entirely beyond
the individual's control (unlike, for example, alcohol abuse), and (3) it
affects the ability of a defendant to understand the norms of society or
to conform his conduct to them.