After Brett was convicted of murder, his trial attorney asked for
a one month delay to obtain a diagnosis regarding FAS/FAE. The motion was
denied, and after a sentencing hearing the jury imposed the death penalty.
On direct appeal Brett challenged the denial of the requested
delay, objecting that it prevented him from obtaining such a diagnosis.
The Washington Supreme Court in 1995 rejected that argument and upheld
Brett's sentence. 892 P. 2d at 63-65.
Brett then brought a state post-conviction proceeding, in which he
asserted he had been denied the effective assistance of counsel because
his trial attorney had failed to obtain such a diagnosis prior to trial.
In 2000 the trial attorney was disbarred. 16 P. 2d at 609 n. 2. In 2001
the Washington Supreme Court held that Brett had been denied the effective
assistance of counsel, and overturned his death sentence.
Diagnosis and Symptoms
In connection with the post-conviction proceeding two doctors
diagnosed Brett as having FAE. Dr. Moore performed a clinical interview
with Brett and reviewed his Department of Juvenile Rehabilitation records,
school records, as well as other medical reports and records and
affidavits from family members. Dr. Dolan did a physical examination of
Brett and reviewed Brett's medical, educational and psychological records
and the 1992 trial testimony. 16 P. 2d at 604-05.
The court in 2001 explained that:
"Fetal alcohol effect is defined as behavioral or cognitive
abnormality evidenced through learning difficulties, deficits in school
performance, poor impulse control, problems in social perception, deficits
in higher
level receptive and expressive language, poor capacity for abstraction or
metacognition, and specific deficits in mathematical skills or problems in
memory, attention, or judgment."
16 P. 2d at 605. Dr. Robin A. LaDue testified that FAE had
"'a significant impact' on Brett's mental abilities, including his
impaired judgment, his inability to understand cause and effect, and his
difficulty controlling impulses."
16 P. 2d at 605.
Expert Witnesses
One month prior to trial the defense attorney obtained the
appointment of a mental health expert, Dr. Stanulis, who reviewed Brett's
school, medical and Department of Corrections records. On the day he was
schedule to testify, however, Dr. Stanulis informed counsel that because
he was a psychologist, not a psychiatrist, he was not qualified to
diagnose or testify about FAS/FAE. 16 P. 2d at 606. Thus "the only
expert defense [witness] retained by the defense could not render expert
opinion and could not be used to support a defense theory." 16 P. 2d at
606.
At the post-conviction proceeding both Dr. LaDue and a Dr. Michael
A. Dolan testified that a diagnosis of FAE could only be made by a
qualified medical doctor or geneticist. 16 P. 2d at 605.
The 2001 opinion recites that defense counsel at the last minute
instead presented another witness in place of Dr. Stanulis.
"However, this witness was not qualified to testify concerning
Brett's medical conditions and the mental effects, did not make an
individualized diagnosis of Brett, and provided erroneous testimony
regarding fetal alcohol effect."
16 P. 2d at 606 n.1.
At the post-conviction proceeding Brett offered diagnoses of FAE
by Dr. Julia L. Moore, a psychiatrist, and Dr. Michael A. Dolan, a medical
doctor and an expert on prenatal exposure to alcohol. Dr. Ladue testified
about the impact of FAE. 16 P. 2d at 605.
In this case the trial judge permitted defense counsel, even in
the absence of a formal diagnosis, to urge the jury to conclude that Brett
had FAS or FAE. The judge concluded that the jury could make such an
inference where the record included (a) evidence that Brett's mother drank
(it is unclear if the evidence referred specifically to drinking during
the pregnancy), (b) evidence of the behavior characteristics typical of
FAS/FAE, and (c) testimony that Brett had behaved in that manner. 892 P.
2d at 64.
"The defense presented testimony from Dr. Ryan, a chemical
dependency and mental health counselor, regarding the symptoms exhibited
by persons suffering from FAS and FAE and the causative factors leading to
those
conditions. Testimony was presented regarding Brett's upbringing and
behavior which allowed the defense to argue and the jury to infer that
Brett suffered from FAS or FAE.
In addition, a diagnosis of FAS/FAE, according to defense retained
expert Dr. Stanulis, would place nothing more than a label on Brett's
lower intelligence and behavioral problems, evidence which was already
before the jury. With or without the diagnosis or label, the defense
could argue that such evidence mitigated in favor of the lesser
sentence."
892 P. 2d at 64.
The subsequent 2001 decision seems intelligible only as embodying
a conclusion that it might well have effected the outcome of the case if
Brett had also had a formal FAE diagnosis, a conclusion seemingly
inconsistent with the court's 1995 opinion. The distinction seems
critical to this and most FAS/FAE ineffectiveness claims. There is a
world of difference between evidence of past behavioral problems, and
evidence that a defendant has organic brain damage, FAS/FAE, which
caused such behavior. A critical question in sentencing is whether
a defendant
may not be (fully) responsible for the actions which constituted the
crime. A history of behavior problems, without that causal explanation,
may convince the jury only that the defendant is a chronic miscreant.
That is what occurred in the sentencing opinion in the Bonner case.
Ineffective Assistance of Counsel
Sentencing
The critical failing of the defense attorney was delay. Brett's
trial attorney knew that Brett had mental problems. The attorney did not
seek to retain a mental health expert until a month before trial was to
begin. The expert was only appointed 19 days before trial, and the expert
was not provided with Brett's school, medical and Department of
Corrections records until two days before trial. 16 P. 2d at 606. By the
time the expert had identified FAS/FAE as the critical problem, and
disclosed that he could not diagnose or testify about that condition, it
was the very day on which the expert was supposed to testify.
The physicians who testified in the post-conviction proceeding
specifically stated that in 1992, at the time of the original trial, it
was possible to diagnose FAE. 16 P. 2d at 604-05.
In holding that the attorney's representation was constitutionally
insufficient, the Washington Supreme Court explained:
"When defense counsel knows or has reason to know of a capital
defendant's medical and mental problems that are relevant to making an
informed defense theory, defense counsel has a duty to conduct a
reasonable investigation into the defendant's medical and mental health,
have such problems fully assessed and, if necessary, retain qualified
experts to testify accordingly."
16 P. 2d at 607.
A sentence or conviction can only be overturned because of
ineffective representation if there is a showing that that ineffectiveness
might have affected the sentence or conviction that occurred. In a large
number of cases in which defendants have based an ineffectiveness claim on
the failure of defense counsel to raise FAS/FAE as a possible mitigating
factor, the courts have summarily held, without explanation, that the
sentence would have been the same even if that evidence had been developed
and presented. In this case, the Washington Supreme Court reached the
opposite conclusion, but also did so without any explanation of how it
concluded that the missing evidence might have mattered.
"We find Brett has shown by a preponderance of the evidence there
is a reasonable probability that, but for counsel's errors, the results of
his trial would have been different."
16 P. 3d at 608.