State v. S.S.
67 Wash. App. 800, 840 P. 2d 891 (Wash. Ct. App. 1992)
S.S., a juvenile, pled guilty to two counts of joy riding and one
count of obstructing a public servant. Although the standard range of
confinement for those offenses was 16-24 weeks, he was sentenced to 80
weeks.840 P. 2d 894-95.
S.S. challenged the sentence in part on the ground that the court
failed to require an evaluation of whether he suffered from FAE. The
trial court denied the request on the ground that, even if S.S. had FAE,
"I do not feel that it would be weighty enough to affect the disposition
of this matter." The appellate court concluded that that reason was
"untenable." 840 P. 2d at 898. The apparent significance of this portion
of the opinion is that FAE would indeed be a mitigating factor under state
law, and that in an appropriate case a defendant would be entitled to the
appointment of an expert to evaluate whether he or she had FAE.
In this case S.S. offered two witnesses who testified that the
University of Washington was conducting "research" about FAE. 840 P. 2d
at 811. The appellate court concluded that that was insufficient to
support the request.
"Although there was evidence before the court that the University
of Washington is conducting a research program on FAE, the was no showing
that, as part of that program, the University is performing FAE
evaluations, by court order or otherwise. In the absence of any such
showing, it was not an abuse of the court's discretion to deny the
motion."
840 P. 2d at 812.
The lack of a showing that a diagnosis was actually available from
some expert could ordinarily be corrected in any future case.
The reasoning of the court seems at odds with other decisions on
this subject. In most cases the critical question is whether a sufficient
basis exists for believing that an evaluation for FAS/FAE would produce
mitigating or exculpatory evidence; if so, the defendant is not usually
asked to identify in advance the particular expert who would do the
evaluation. Obviously such experts do exist.