This case holds that in Florida courts evidence of FAE should be admitted at the guilt phase of a trial if offered to show that the defendant lacked the mental state (here premeditation) that is part of a crime.

Dillbeck was charged with premeditated murder. The trial court refused to admit evidence of FAE at the guilt phase. Once Dillbeck had been convicted, the judge did permit introduction of that evidence at the sentencing hearing, and concluded that the defendant did have FAE. 643 So. 2d at 1028.

The Florida Supreme Court held that Dillbeck should have been allowed to offer that evidence in order to establish a defense of diminished capacity.

643 So. 2d at 1029-30.

Although this decision is binding only in Florida courts, it should be persuasive authority in other states, most of which permit proof of intoxication or other conditions to show a lack of specific criminal intent.

This decision also holds that the brain damage caused by alcohol use is a "commonly understood" phenomenon. 643 So. 2d at 1029. That may be important where a criminal defense attorney has failed to investigate the presence of FAS/FAE, and the defendant asserts that he or she was denied the effective assistance of counsel.

The passage in this opinion which stresses that the disabilities caused by FAS/FAE are beyond the capacity of the victim to prevent may be helpful in arguing that FAS/FAE should be a mitigating factor in sentencing.

The court concluded that the error of the trial judge in excluding the evidence would not have affected the outcome of the case, because there was substantial evidence that Dillard had carefully planned the crime.

Foell was convicted of murder and sentenced to life in prison. He contended he was denied the effective assistance of counsel because his trial attorney did not offer evidence of FAS to support a defense of diminished capacity.

Foell's mother had apparently urged his trial counsel, without success, to raise FAS as some sort of defense.

The federal magistrate's opinion stressed that the trial attorney had looked at Foell's psychiatric records and his substance abuse treatment records, and had had Foell evaluated by three experts. 2004 WL 240934 at *9. However, a review of an earlier state court opinion in this case indicates that the attorney, while undertaking a general review of Foell's mental capacity, may never have looked specifically into whether he had FAS.

In explaining the decision not to raise FAS as a diminished capacity (or other defense), the federal magistrate (and earlier state court) relied heavily on a written evaluation at the time by a physician retained by the attorney to evaluate Foell:

"Based on my experience in working with Fetal Alcohol Syndrome in a Native American population and a non-Native American population, it has been my experience that this syndrome would in no way take the onus of responsibility off individuals in criminal cases with the mental status that David Foell presents with."

2004 WL 240934 at *10. [Whether a particular mental status would provide a defense under state (here Iowa) law would depend on the substance of state law. Additional facts might throw more light on this. But it would seem inappropriate for an attorney to rely on a physician to evaluate the legal significance of such evidence].

The state court had noted that neither party had cited a case in which FAS had successfully been used as a defense. 2004 WL 240934 at *11. [That is not surprising. The successful assertion of a defense at trial would almost never result in any sort of reported opinion. In any event, whether FAS was a plausible defense in this case would turn on an evaluation of Iowa law and of the disabilities of this particular defendant.]

Foell was convicted of murder. He brought a post-conviction proceeding, and alleged that he had been denied the effective assistance of counsel, relying largely on the failure of he attorney to introduce evidence that Foell had FAS.

Foell argued, first, that that evidence would have demonstrated that he lacked the specific intent necessary for a conviction of first degree murder. It is not entirely clear what specific intent was required by state law. The appellate court rejected this argument on two grounds. (1) "The argument that Foell was only guilty of second-degree murder was well developed and presented by his trial attorney." 2001 WL 1658885 at *3. The difficulty with this explanation is that the argument which was actually made was not sufficiently persuasive; evidence of FAS might have made it more so. (2) "Foell's trial attorney did substantial research before trial and found no case where the syndrome had been successfully raised as a defense. The decision not to attempt to introduce such evidence was a strategic decision." 2001 WL 1658885 at *3. Research was unlikely to unearth such a case, since a successful defense would result in an acquittal and thus no published opinion. The relevant question was more of a medical nature--is FAS capable of preventing an offender from forming a particular specific intent? There is no suggestion that the trial attorney evaluated that issue.

Foell also objected that evidence that he had FAS should have been offered to show that his confession was not based on a knowing waiver of his Miranda rights. The appellate court rejected this, stating "Foell has failed to show that advancing [the FAS argument] at the time of the suppression hearing would have resulted in the suppression of Foell's confession. Similar claims for suppression of confessions have not been successful." 2001 WL 1658885 at *3. The opinion cites four earlier Iowa decisions. Those cases, however, hold that limited intelligence is relevant to a determination of whether a waiver was knowing, and insist that that determination is primarily the responsibility of the trial judge. The fact that an appellate court might have sustained the admission of the confession, despite evidence of FAS, is not the same as a prediction about how the trial judge would have weighed that evidence.

In the reported cases confessions were admitted from defendants with low IQs; in several of them the court was convinced the waiver was knowing because the defendant had held a job, had repeatedly been given the same warnings in prior arrests, or had been given a special version of Miranda for juveniles. One case mentions an expert who did a study and concluded that individuals with an IQ of 70 or below are unlikely to understand a Miranda warning.

The court cited cases are State v. Rhombert, 516 N.W. 2d 803, 806-07 (Iowa 1994); State v. Reid, 394 N.W. 2d 399, 401-04 (Iowa 1986); State v. Conner, 241 N.W. 2d 447, 453-54 (Iowa 1976); State v. Fetters, 202 N.W. 2d 84, 87-90 (Iowa 1972). These decisions at times fail to distinguish between claims of involuntariness and claims that a waiver, although not coerced, was not knowing.

Lambert, a juvenile, was charged with murder and his case was transferred to adult court. He pled guilty and received a sentence of life imprisonment without possibility of parole, the same sentence he would have received if he had gone to trial.

Lambert brought this habeas corpus action, seeking to overturn his guilty plea and conviction on the ground that he had been denied effective assistance of counsel. The district court concluded that Lambert had not received effective representation, and set aside his plea and conviction.

One area of ineffective representation concerned a psychological evaluation of Lambert. The attorney retained a psychologist to conduct an evaluation; the psychologist concluded that Lambert was extremely dangerous and had no mental problems.

248 F. Supp. at 1011. This decision illustrates that an attorney who does consult a psychologist or other expert may still be guilty of ineffective assistance if the attorney fails to provide the expert with needed information. It also recognizes that FAS may provide the basis for a diminished capacity defense.

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W. pled nolo contendere to several counts of unlawful sexual contact with a child.

The sentencing judge was aware that W. had FAS. At the initial sentencing hearing, W.'s defense counsel had and referred to several psychological examinations, but evidently did not actually provide the court with copies of at least some of them. The judge initially sentenced W. to 2-15 years in prison.

Thirteen days later, W.'s attorney filed a motion to alter the sentence, and this time attached the psychologist reports that had not been provided earlier. Two weeks later the trial judge granted the motion, and reduced the sentence to 90 days in jail and 5 years of probation. the judge ordered that W. spend 150 days on the "tether program" and undergo outpatient therapy. 222 Mich. App. at 182-83.

The prosecution appealed. The appellate court held that under Michigan law the trial judge had no authority to modify his original 2-15 year sentence.

This case is important, not because of this legal issue, but because it illustrates the impact at sentencing of a more detailed exposition of the significance of FAS/FAE. The trial judge concluded that that exposition warranted a far lower sentence; the appellate court did not disagree, but held only that the trial judge could not change his mind after he handed down the first sentence.

The dissenting opinion in the appellate court quoted extensively from the materials that persuaded the trial judge to impose the lower sentence (later overturned solely on procedural grounds).