Lord was convicted of murder and sentenced to death. In this state post-conviction proceeding, he asked the court for funds to hire an expert on FAS to determine if trial counsel was ineffective by failing to present FAS as mitigating evidence.

The court denied the request. It reasoned that the trial attorney did not have "reason to believe that Lord's mother drank while she was pregnant." 868 P. 2d at 855. Thus, the court held, it could not be ineffective assistance for the lawyer to have failed to offer (or seek) evidence of FAS.

Lord's attorneys "spoke to several of Lord's family members and were aware he had psychological problems, and they called a neuropsychologist in the penalty phase to describe those problems." 868 P. 2d at 855. The opinion does not state what those problems were.

It is unclear whether the family members denied the mother drank, or whether the attorneys simply failed to ask. If they simply failed to ask, that would call into question the correctness of the decision. First, if the attorneys knew that Lord had behavioral problems, it seems they should reasonably have attempted to find out why. Asking about maternal alcohol use was an obvious and easy method of inquiry. Second, even absent those behavioral problems, the appropriate standard of care in a capital case may include at least asking about maternal alcohol use. Some decisions stress that no ineffectiveness was involved because the attorney did ask about alcohol use and was told the mother did not drink; those decisions are in some tension with a decision (which this may or may not be) holding that a complete failure to inquire is not ineffective assistance.