Dunn was convicted of murder in 1988. Four years later he sought to overturn his conviction, arguing among other things that he was not competent to stand trial. He relied on a medical evaluation done in 1992, by a physician who concluded that Dunn suffered from FAE and that it was so severe (in combination with certain psychiatric disorders) that he was not competent to stand trial.

A state court rejected this evaluation, and the federal court agreed. Both courts noted that the 1992 evaluation was done four years after the trial, that the doctor involved apparently had not actually interviewed Dunn, and that experts who had actually examined Dunn in and before 1988 had concluded that he was competent to stand trial. The courts did not hold that FAS/FAE could not render a defendant incompetent to stand trial, but held only that FAS/FAE had not done so in this case.

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After several outbursts by the defendant during the trial, the court ordered a competency evaluation. A psychologist who examined and tested Fleming concluded that he was suffering from anxiety, but was competent to stand trial.

On cross-examination, the defense counsel asked the psychologist if he was aware that Fleming had been diagnosed with FAS, and that schizophrenia ran in his family. The psychologist replied that he did not know that, but that it would not have changed his opinion. 2003 WL 21675890 *2.

Lee was charged with several counts of sexual contact with a child. The trial judge appointed a clinical psychologist, Dr. Hurlbut, to determine whether Lee was competent to stand trial. Hurlbut examined Lee and issued a report which concluded that Lee lacked substantial mental capacity to understand the proceedings or assist in his own defense. 1998 WL 286352 *1.

At two subsequent hearings the judge himself questioned Lee, and ultimately concluded that Lee was competent to stand trial. The appellate court affirmed.

The Hurlbut report concluded that Lee "was a possible victim of fetal alcohol syndrome, and that his difficulties 'almost certainly involve neurological impairment and significant retardation in the area of verbal impairment." 1998 WL 286352 *1. The appellate opinion quotes at length portions of the report detailing what Lee did understand. It is unclear whether the report contained no further explanation of its conclusion that Lee was not competent to stand trial, or whether the appellate court simply failed to quote those portions of the report.

This is a juvenile proceeding against Michael A., then 13 or 14. At the request of the defense, the court granted a continuance so that a psychologist could determine if Michael was competent to understand the proceedings and cooperate with counsel.

The psychologist concluded that there was a gross inability to assist counsel. The bases of the conclusion included the fact that Michael had been diagnosed with FAS.

The trial court, without holding a hearing, ruled that Michael was competent to stand trial. The appellate court reversed, holding that the trial court was required to hold a hearing on Michael's competency to stand trial.

Miller was convicted of murder and sentenced to life imprisonment without possibility of parole.

Prior to trial the defense filed a motion for the appointment of an expert to conduct an examination for possible brain damage due to prenatal alcohol exposure. Apparently the questions at issue were (a) Miller's competence to stand trial, and (b) whether he had the capacity to appreciate the criminality of his conduct or to conform his actions to the requirements of the law. This motion was based the recommendation of Miller's psychiatrist. The motion was granted, and the examination was to be provided at the state hospital "as determined by" Miller's psychiatrist. 942 S.W. 2d at 827.

The neurological assessment indicated that:

942 S.W. 2d at 828. Some additional but unidentified tests on Miller "were interpreted as being normal." This assessment appears to conclude that Miller did not have FAS because a low IQ is "almost invariably" associated with FAS. That is incorrect; individuals with FAS who have an average IQ are not uncommon.

In response to this diagnosis, defense counsel asked for a continuance to obtain an out of state neuropsychologist, on the ground that it was difficult to obtain a competent neuropsychologist in Arkansas. That motion was denied. 942 S.W. 2d at 828. (Note here the case from Mississippi holding that failure to inquire into FAS was not ineffective assistance of counsel because there was no showing that a competent expert on FAS existed in the state of Mississippi).