Andrews was convicted of murder and sentenced to death. He sought to overturn his sentence on the ground that he had been denied the effective assistance of counsel. Andrews argued that his trial attorneys had failed to introduce mitigating evidence on a variety of issues, including the possibility that he had FAE.

In this post-conviction proceeding, Andrews offered the testimony of a psychiatrist that Andrews "might have suffered from Fetal Alcohol Effect." (52 P. 2d at 680).

The majority concluded for a variety of reasons that the trial attorneys acted reasonably in not offering more mitigating evidence. The justifications relied on by the court, however, all were related to other forms of mitigating evidence. The court explained that Andrews had failed to tell his attorneys about his reform school and prison experiences (another possible mitigating facto), that much of the mitigating evidence would have been from fellow prisoners with criminal records, that raising certain issues, would have allowed the prosecution to offer evidence of Andrews other crimes, and that Andrews did not want to involve his family. Only the latter was relevant to FAS, and there clearly were ways it could have been raised. It appears that, as in other cases, the majority mentioned the FAS factor but then focussed its opinion on other mitigating issues, losing track of the FAS problem.

In the Matter of Brett
142 Wash. 2d 868, 16 P. 3d 601 (2001)

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.

Burgess was convicted of murdering his girlfriend and her two children. The jury voted to sentence Burgess to life without parole, but the judge set aside the jury's recommendation and sentenced Burgess to death. The circuit court denied Burgess' petition for post-conviction relief, and Burgess appealed.

Burgess' petition related primarily to claims of ineffective assistance of counsel at his trial and at sentencing. Among other things, Burgess claimed that his counsel should have called an expert witness on FAS, and should have obtained a neuropsychological assessment to investigate possible organic brain impairment. The circuit court concluded, and the appellate court agreed, that Burgess' counsel conducted a diligent investigation and introduced evidence in support of mitigation, and Burgess' claim was therefore denied.

Interestingly, the circuit court based its holding in part on the fact that the jury voted in favor of life imprisonment, implying that counsel's penalty-phase strategy was therefore successful. This apparently disregards the impact additional testimony on FAS or other mitigating factors may have had on the trial judge's decision to set aside the jury's recommendation and impose the death penalty.

Byram was convicted of murder and sentenced to death. He sought to overturn his sentence in a federal habeas corpus proceeding. The issue of relevance was whether Byram's trial attorney failed adequately to investigate the possibility that Byram had FAS so as to offer evidence of FAS as a possible mitigating factor.

In concluding that Byram was not denied effective assistance of counsel, the court relied on three considerations.

First, the attorney did investigate Byram's assertion that he had FAS. (a) Counsel asked his mother if she drank during pregnancy; she said she had not. [If a mother feels guilty about having caused a birth defect, she may provide unreliable information, especially if she is still abusing alcohol. It would be prudent to ask a third party who knew the birth mother at the time.] (b) "Nothing in the birth mother's medical records indicated alcohol consumption during pregnancy." [Other records might indicate that, even if records about her pregnancy did not]. (c) "EEG and MRI tests showed no evidence of FAS." [EEG and the usual MRI test usually would not.] 339 F. 3d at 210.

Second, the attorneys made "reasonable efforts to obtain [Byram's] actual adoption records", which might have provided more evidence about FAS. 339 F. 3d at 210-11.

Third, a great deal of time and effort was spent investigating mitigating factors generally. 339 F. 3d at 210.

Although some parts of the court's analysis are debatable, this attorney certainly made a greater effort to investigate FAS than many others. It would be important if the courts were to hold that the efforts in this case represented the level of effort that generally should be made to investigate FAS.

Castro was convicted of murder and sentenced to death. He argued that he had been denied the effective assistance of counsel because his trial counsel had failed to investigate and present to the jury evidence which might have persuaded the jury to vote for a sentence of life imprisonment, rather than the death penalty. One of several problems which Castro asserted his attorney had failed to investigate was the possibility that Castro suffered from fetal alcohol syndrome. (138 F. 3d at 831-32).

The court of appeals held that, even if the attorney had acted improperly in failing to investigate Castro's background, the jury would almost certainly have sentenced Castro to death anyway. (138 F. 3d at 832). That portion of the opinion so holding contains no specific discussion of FAS/FAE. Although there is a reference to the possibility of organic brain damage, this seems to be about a problem separate from the possible FAS/FAE.

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Loran Cole was sentenced to death after being convicted of first degree murder, kidnapping, robbery and sexual battery. After unsuccessful appeals, Cole brought a petition for writ of habeas corpus and challenged his conviction by arguing, among other things, ineffective assistance of counsel on the basis that (1) his counsel failed to request jury instructions for two statutory mental mitigators (that the capital felony was committed while under the influence of extreme mental or emotional disturbance, and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired -see Fla. Stat. § 921.141(6)(b), (f)), and (2) his counsel failed to subject Cole to a competent, neuropsychological exam. It is not clear from the court's opinion whether Cole specifically raised the possibility of FAS in connection with these claims.

As to claim (1), the court agreed with the state court;s finding that, while Cole did establish the mitigating factors of organic brain damage and mental illness, he failed to establish that such brain damage or mental illness affected his judgment regarding his criminal acts. Therefore, the court concluded that any error by counsel in not raising the statutory mental mitigators did not affect the outcome of the penalty phase. (The state court's opinion described testimony by experts to the effect that Cole exhibited signs of mental illness and organic brain damage, but noted that there was no independent evidence of brain injury or FAS).

As to claim (2), the court concluded that counsel conducted extensive investigations concerning Cole's mental state and did in fact hire several experts, including a neurospychologist who concluded that Cole was "neuropsychologically" sound; counsel therefore decided to not obtain a written report or call him as a witness. Counsel also hired a forensic psychologist, who explored various factors that could have caused Cole's brain damage, including possible head injuries or FAS.

Finding Cole's claims to be without merit, the court dismissed Cole's petition.

Davidson was convicted of murder and sentenced to life in prison without the possibility of parole. He contended that his trial counsel had failed to provide effective legal assistance.

Davidson asserted that his attorney should have requested a "psychological evaluation" because the attorney knew that Davidson's mother had consumed alcohol regularly during pregnancy. The court held that the lawyer had made a sufficient effort to look into that issue.

20000 WL 674697 *2.

The fact that this attorney at least attempted to inquire whether his client might have FAS sets a higher standard of care for attorneys than is met in many other cases.

Davis was convicted of murder and sentenced to death. He attempted to overturn his conviction by arguing that his attorney had failed to provide him with effective representation. He argued in particular that the lawyer had failed to investigate and present mitigating evidence which might have persuaded the jury to impose life imprisonment rather than the death penalty.

Davis identified a number of different mitigating considerations which his attorney had failed to investigate or present to the jury. One of them was possible FAS. (891 F. Supp. at 1461). Although the court's opinion mentions that Davis asserted this claim about FAS, the opinion says nothing specifically about the merits of that claim. Most of the assertedly mitigating information was about Davis' personal background. The judge concluded that that information was so adverse that it would have been harmful for Davis if his attorney had raised it, and that therefor there was no denial of effective assistance of counsel. (891 F. Supp. at 1465.) Although evidence about FAS clearly could only have helped Davis, the opinion simply does not discuss it.

Dillbeck was convicted of first-degree murder, armed robbery, and armed burglary. In connection with Dillbeck's sentencing, the trial court considered various statutory and non-statutory mitigating circumstance, including that Dillbeck has FAE and that his capacity to conform his conduct to the requirements of the law was substantially impaired, but also found that there were numerous aggravating circumstances. Following the jury's recommendation, the trial judge sentenced Dillbeck to death. Dillbeck's arguments on appeal included ineffective assistance of counsel, claiming, among other things, that his attorney failed to request a PET scan. (The Court's opinion does not indicate whether the request for a PET scan was related to the fact that Dillbeck has FAE.) The circuit court denied relief, and Dillbeck appealed, seeking a writ of habeas corpus. Dillbeck's petition did not appeal the claim that counsel should have requested a PET scan, so although the court remanded the case to the circuit court to enter further findings with respect to Dillbeck's claims, it held that the circuit court need not address Dillbeck's claim with respect to the failure to request a PET scan.

Elledge pled guilty to rape and murder and was sentenced to death. Elledge moved for post conviction relief, claiming, among other things, ineffective assistance of counsel. The trial court denied post conviction relief and Elledge appealed.

Elledge contends that he was denied effective assistance of counsel because trial counsel relied on mental health experts who were not board-certified, were improperly prepared, and who provided conflicting testimony. While one expert, Dr. Schwartz, testified that Elledge displayed signs of organic brain damage and fetal alcohol syndrome, Dr. Caddy, another expert, did not agree with Dr. Schwart's conclusions. While the trial court noted the discrepancy and found that Dr. Caddy's testimony diminished Dr. Schwart's credibility, the appelate court explained that "the thrust of the trial court's deconstruction of these mental health experts was not that they provided inconsistent testimony, but that their diagnoses were contradicted by the facts of the case and other episodes in Elledge's history." 911 So.2d at 72. In this regard, the trial court appears to have focused on whether Elledge was generally capable of exercising control over his violent impulses, in addition to any specific diagnosis. Based on the record, the appelate court held that Elledge could not viably assert that trial counsel's presentation and preparation of the mental health experts prejudiced his defense.

Floyd was convicted of murder and sentenced to death. He brought a state post-conviction proceeding, alleging among other things that he had been denied the effective assistance of counsel. The lower court rejected Floyd's claims without holding any hearing. The Florida Supreme Court ruled that an evidentiary hearing was required on Floyd's claims. "Floyd set forth a sufficient factual basis for relief which was not conclusively refuted by the record." 2002 WL 58547 At *3.

One of Floyd's claims was that his trial counsel could have learned through an adequate investigation of possible mitigating circumstances that Floyd had FAS. This was one of seven types of mitigating factors the trial attorney allegedly failed to unearth.

The decision does not contain a specific explanation of why the Florida Supreme Court concluded a hearing was needed. Footnote 15, the footnote to the sentence quoted above, contains no explanation of its own, but merely refers to footnotes 12, 13 and 14. Those footnotes contain the following statements:

The dissenting opinion quoted a portion of the lower court decisions which noted that the trial attorney had called seven defense mitigation witnesses, and which stated that "the evidence presented during the penalty phase is inconsistent with, and directly refutes, Defendant's current claims of mental illness or retardation." 2002 WL 58547 at *9.

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.]

Francis was convicted of murder and sentenced to death. He sought in state court, and then in federal court, to overturn his death sentence on the ground that his attorney had not provided effective assistance. One of Francis' arguments was that his trial attorney had failed to develop and present to the jury evidence that Francis had FAS. After he had been tried and sentenced, Francis obtained an FAS diagnosis from a psychiatrist, but the courts held that this was insufficient to demonstrate that he had been denied effective assistance of counsel.

Francis was convicted of murder and sentenced to death. He brought this post-conviction proceeding, alleging that he was denied the effective assistance of counsel at trial. Francis argued that his trial attorney had failed to offer as mitigation evidence proof that Francis had FAS.

The state judge who held a hearing on this claim ruled that Francis did not have FAS. This is one of the few cases in which the parties litigated and a court decided whether a particular individual had FAS. The evidence offered by each side is not described in detail. The witness called by Francis, a psychiatrist, had interviewed Francis, and based his diagnosis of FAS "primarily on Francis' facial characteristics." 529 So. 2d at 673. The prosecution's rebuttal expert, also a psychiatrist, testified that discussions between Francis and the trial judge at Francis' earlier trial "was grossly inconsistent with somebody who is brain damaged." 529 So. 2d at 673. Francis had an IQ in the normal range.

The appellate court rejected the ineffectiveness claim on the ground that there was not a "reasonable probability" that Francis would have avoided the death penalty if evidence regarding FAS had been introduced. 529 So. 2d at 673-74 and n. 9. This was based in part on the fact that the judge who rejected Francis' claim for post-conviction relief was the same judge who had earlier sentenced him to death.

A dissenting opinion noted that impairment due to brain damage was a mitigating factor under Florida law. 529 So. 2d at 678.

Haberstroh was convicted of murder and sentenced to death. The Nevada Supreme Court held that one of the jury instructions--regarded what constituted an aggravating factor--was improper.

The critical question was whether that argument was prejudicial--whether the result might be different if the defendant were remanded for a new sentencing hearing.

The court held the error was prejudicial. It observed that, if the defendant were resentenced, his attorney could offer mitigating evidence. 69 P. 2d at 684. Haberstroh's original trial attorney had failed to offer any such evidence. The court noted that the mitigating evidence which had not been offered at the original sentencing hearing, but which presumably would be offered at a new hearing, included

69 P. 3d at 683 n. 22. Haberstroh had complained that he had been denied the effective assistance of counsel when his original attorney did not offer that evidence; the appellate court did not resolve that issue.

This case is important because it recognizes the substantial possible impact of FAS at sentencing, and provides support for an argument that the failure to develop such evidence would be prejudicial.

In 1979 Harris was convicted of murder and sentenced to death. In 1990 he filed a federal habeas corpus action seeking to overturn that sentence.

At the original 1979 trial Harris' attorney did not raise any issues regarding FAS, and was evidently unaware that Harris might have FAS. Harris' trial attorney retained two psychiatrists to go over the case, but neither of them raised the possibility that Harris might have FAS. In the 1990 federal habeas corpus action, Harris offered diagnoses from three different physicians, all of whom agreed that Harris had FAS.

A dissenting opinion by Judge Noonan urged that Harris should have been afforded a hearing on his claims. Noonan argued that with the assistance of more competent experts, who had identified FAS as the likely diagnosis, Harris' attorney in 1979 might have been able to convince the jury that the prosecution's diagnosis of Harris was inaccurate.

This case appears to illustrate several important problems.

First, the medical experts retained for the 1979 trial were both psychiatrists. There is no distinct category for FAS/FAE in the Diagnostic and Statistical Manual of Mental Disorders (DSM) on which psychiatrists generally rely. Some Canadian judges do not regard psychiatrists as competent to diagnose whether a defendant has FAS. Thus, although two of the three experts who in 1990 diagnosed Harris with FAS were psychiatrists, it is possible that the reason this diagnosis was missed in 1979 was that Harris' attorney had consulted the wrong type of medical expert. Unless a defense attorney both can recognize symptoms of possible FAS, and understands what type of expert to retain to evaluate that problem, an FAS diagnosis and defense (or mitigation factor) may well be overlooked.

Second, the key prosecution witness at the sentencing hearing, also a psychiatrist, diagnosed Harris as having "antisocial personality No. 304.8", relying on the second edition of the DSM. The prosecution psychiatrist testified that there were eleven characteristics of such a "sociopath." That list, quoted below, includes many classic symptoms (underlined) of FAS. the witness stated that

URL:

http://www.ce9.uscourts.gov/web/sdocuments.nsf/0/2ed1d19f0f60a9cd8825684900698d1a?OpenDocument
(Not full text of case, but it is mentioned in Capital Punishment Handbook for 9th Circuit)

Horsley was convicted of murder and sentenced to death. He sought to overturn his conviction by arguing that his trial attorney had failed to provide effective assistance because the attorney did not investigate the possibility that Horsley suffered from FAS.

The court of appeals held that the failure to investigate FAS did not matter, because it would not have resulted in exculpatory expert testimony. Horsley failed to demonstrate either (a) that the experts who testified for him at the post-1991 federal hearing would have been available to testify for him at the 1977 trial, or (b) that any other expert could have been found to testify about FAS in 1977. (45 F. 3d at 1495). A dissenting judge insisted the record showed that the needed expert could have been found in Alabama at the time. (45 F. 3d at 1500.)

The majority also held that Horsley had failed to prove that it was reasonably probable that he would not have been sentenced to death if there had been testimony that he had FAS. (45 F. 3d at 1495 n. 20).

URL:

http://www.law.emory.edu/11circuit/feb95/92-6813.man.html
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/11th/926813man.html

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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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.

Murphy was convicted of murder and sentenced to death. He urged in this post-conviction proceeding, among other things, that he had been denied the effective assistance of counsel because his trial attorney failed to develop and offer evidence that Murphy had FAS/FAE.

The court held that any such failure by the trial attorney was not serious enough to constitute ineffective assistance under the standard set in Williams v. Taylor, 529 U.S. 362 (2000).

54 P. 2d at 564. The court declined even to conduct an evidentiary hearing on the ineffectiveness claim, holding both (1) that the actions of the trial attorney did not fall below "professional norms" and (2) that there was not a "reasonable probability" that the outcome would have been different if evidence of FAS (and other mitigating evidence) had been introduced. The second assertion, common in FAS ineffectiveness claims, was (as usual) unexplained.

The court's analysis of the sufficiency of the trial attorney's actions appears to rest at least in part on a misunderstanding of the relevant science. (1) Murphy's birth mother assertedly told the attorney she only drank two beers a day; the court seems to have assumed, incorrectly, that this was too little alcohol consumption to cause any harm. 54 P. 2d at 565 n. 8. See also id. (Mother told attorney her drinking during the pregnancy was "minimal"). (2) The attorney talked with a physician and they noted the "absence of any visible characteristics of Fetal Alcohol Syndrome." 54 P. 2d at 565 n. 8. But that would not rule out FAE; if they meant only that those characteristics were not present when Murphy was an adult, their absence would not even rule out FAS. (3) The attorney stated that family members "never contradicted" the mother's assertion that her drinking was "minimal"; it is unclear whether the attorney asked the family members, or whether the family members knew what the mother had said.

Later the mother's sister described the mother as an alcoholic during the pregnancy. This case highlights the risk in relying solely on the birth mother for information about whether or not she drank during the pregnancy.

A neurologist hired for purposes of the post-conviction proceedings concluded that Murphy had FAS/FAE. The court dismissed this diagnosis on the ground that the neurologist "apparently" relied solely on the conflicting evidence about how much the mother drank. 54 P. 2d at 564 n. 8. This aspect of the opinion highlights the importance of making clear what information an expert relied on in making a diagnosis.

Murphy was convicted of murder and sentenced to death. On appeal he argued that his attorney had failed to fully investigate possible mitigating factors. He specifically objected that the attorney should have called an expert witness on FAS and should have obtained a neuropsychological assessment to investigate possible organic brain damage. 747 N.E. 2d at 797.

The appellate court rejected this argument because "the record does not show that defense counsel failed to investigate these possibilities." 747 N.E. 2d at 797. That sort of showing would ordinarily be easy to make in a post-conviction proceeding.

Remeta was convicted of murder and sentenced to death. He filed a series of state post-conviction proceedings seeking without success to overturn his sentence.

This was the fourth such action. Remeta, among other things, asked the court to provide him with funds to hire an expert on FAS. The court denied the request on the ground that Remeta had had ample opportunity to seek such information at trial or in the earlier post-conviction proceedings. 710 So. 2d at 546.

Rompilla was convicted of murder and sentenced to death. One issue in this federal habeas corpus proceeding was whether his trial attorney failed to provide effective assistance of counsel when the attorney did not develop evidence of FAS as a possible mitigating factor.

The federal court of appeals was divided about that issue; it upheld the sufficiency of the representation by a 2-1 vote. 355 F. 3d at 252-53 (majority opinion), 279 et seq. (dissenting opinion).

This case raises two issues about the respective roles and responsibilities of trial attorneys and defense experts. Although the defense attorneys retained three such experts, no inquiry into FAS appears to have been made.

(1) The experts said they would have inquired further if they had had certain records only unearthed after trial. The trial attorney explained he did not look for those records because the experts had not asked for them. The majority and dissent disagreed about whether this amounted to ineffective assistance of counsel. [If the records were important mitigating information, it would be odd if failure to obtain them could be excused on the ground that the attorney and the expert were each relying on the other to raise that point].

(2) There was substantial disagreement about whether the trial attorney had clearly directed the experts to investigate medical issues that related to sentencing; the dissenting opinion read the record as indicating that the experts had only been told to look at guilt issues. [Again, this raises important issues about the responsibilities of trial counsel in dealing with experts.]

Silva was convicted of murder and sentenced to death. There were two accomplices, one of whom made a deal with prosecutors and got eleven years, and the other of whom was sentenced to life imprisonment (with no bar to parole).

In this habeas corpus action, Silva argued that his attorney did not provide effective representation at the penalty phase. The attorney presented no evidence regarding Silva's background or mental state. In support of his attack on the death sentence, Silva offered evidence suggesting that there was a wide range of mitigating information that might have been investigated and introduced, including the possibility that he had FAS. 279 F. 3d at 847 n. 17. The court concluded that Silva was denied the effective assistance of counsel because his attorney had failed even to investigate "Silva's background--including his family, criminal, substance abuse, and mental health history." 279 F. 3d at 846.

The court also concluded that it was reasonably likely that an effective defense at the penalty phase would have resulted in a lesser sentence. 279 F. 3d at 849-50.

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Sullivan was convicted of murder and sentenced to death. He brought this federal habeas corpus action seeking to overturn his conviction or sentence. One basis for the habeas action was Sullivan's claim that his original attorney had acted improperly in failing to investigate whether Sullivan had FAS/FAE. The court concluded that there had been no denial of effective assistance of counsel.

The attorney involved had obtained some relevant factual information, and the court concluded that the failure to pursue the matter further was justified by the fact that the information given to the attorney was either inaccurate or incomplete: (1) Sullivan told the attorney there was no history of "alcoholism" in his family, (2) Sullivan's mother and sister told the attorney that he was a normal child until after his father died when the child was 8, and (3) the mother did not disclose to the attorney that she drank heavily during her pregnancy. 1998 WL 231264 at *23-*24. The state judge also concluded for similar reasons that the information known to the defense attorney was not sufficient to warrant investigating FAS/FAE. 1995 WL 465172 at *8.

In light of current understanding of FAS/FAE, the attorney's efforts appear to have been inadequate. (1) The attorney knew that the mother had "a drinking problem" (1995 WL 231264 at *2; 1995 WL 465172 *3). That should have been sufficient to lead a defense attorney to make further inquiry. The attorney did not tell the experts to consider FAS. Although the opinion notes that the mother did not tell the attorney that she drank heavily during her pregnancy, it does not appear that she was actually asked about drinking during the pregnancy. She later responded to a specific question by stating that she drank two pints of liquor a day during the pregnancy. (2) A mother who is not an alcoholic could still drink enough to cause FAS/FAE. (3) A parent's conclusory description of the child as "normal" is not terribly informative. (4) Although one of the experts concluded, and advised the attorney, that Sullivan was mentally retarded, neither the expert nor the attorney apparently made any effort to determine why he was retarded. (1995 WL 465172 at *5).

Nevertheless, the case appears to support the proposition that at least some inquiry must be made about FAS/FAE.

1998 WL 231264 *11 n. 8. This description contains two important errors. First, the physical features noted by the court are limited to FAS. Second, a mother could drink enough to cause FAS/FAE without being a "chronic alcoholic."

The defense contention with regard to the merits of the crime appeared to be that one or more of several other individuals, two of whom accused Sullivan of the crime, had actually committed it, and that Sullivan had a dependent personality and was induced to play a role in the crime by the others. 1998 WL 231264 at *5-*7.

Murphy was court martialed for three murders, and sentenced to death. Following conviction he obtained diagnoses or affidavits from five physicians, all of which raised questions about whether he was incapable of forming the requisite intent to commit premeditated murder. One psychiatrist noted that Murphy's limited intellectual functioning was "consistent with organic brain damage, perhaps as a result of fetal alcohol syndrome." A pediatrician concluded that the amount of alcohol consumed by Murphy's mother was sufficient to cause organic brain damage, and that further examination for FAS was warranted. None of the experts made a diagnosis of FAS/FAE. (50 M.J. at 14.)

The U.S. Court of Appeals for the Armed Forces declined to affirm the death sentence, relying on three factors, including the potential mitigating effect of the post trial evidence regarding Murphy's mental status (of which possible FAS was a part). Military law evidently permitted consideration of such post trial evidence in a manner that would not be possible in federal habeas corpus regarding a regular criminal trial.

That court remanded the case to the U.S. Army Court of Criminal Appeals to decide whether consideration of that new evidence might reasonably have led to a different sentence. (50 M.J. at 16). On remand the Army Court of Criminal Appeals decided that resolution of that issue required an evidentiary hearing. (56 M.J. at 647). This disposition was significant because in habeas corpus actions federal courts have almost uniformly held that the jury would have imposed the same sentence even if it knew that the defendant had FAS/FAE.

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Sullivan was convicted of murder and several other crimes, and sentenced to death. He attacked his conviction on the ground, among other things, that his trial attorney had not investigated whether Sullivan had FAS/FAE, and had not asked to have a psychiatrist appointed to evaluate whether Sullivan had FAS/FAE. The court rejected that claim.

The court proceeded from the premise that the failure to investigate that (or any other) possible mitigating evidence did not constitute ineffective representation if the defendant gave counsel "reason to believe that a line of investigation should not be pursued." 1995 WL 465172 at *8. The court held that Sullivan had given his attorney reason to believe that investigation of FAS/FAE would be unproductive because at his intake interview Sullivan stated that his family did not have a "history of alcoholism." 1995 WL 465172 at *3, *8. However, the record also confirmed that the trial attorney had been told that the mother at that point in time had a drinking problem, and appeared drunk to those who met her. The court does not explain why the attorney was not ineffective in ignoring this information.

The circumstances of this litigation are an important guide for how an attorney should determine whether FAS/FAE needs to be investigated. After the conviction Sullivan was diagnosed with FAS, and the correctness of that diagnosis was not questioned. The critical issue, then, is why his trial attorney mistakenly thought the matter not worth pursuing.

The court noted a variety of factors which led counsel to decide not to pursue this issue. (a) The defendant denied there was a history of alcoholism in his family. (This query may have been unreliable for several reasons. It is unclear what the defendant would have understood to constitute alcoholism. A level of drinking short of alcoholism is sufficient to cause FAS/FAE.) (b) The defendant's mother and sister stated he was "normal" until the age of 8. (What did they mean by "normal"--was this about IQ, behavior, physical appearance, social relationships? Why would an attorney rely on the judgment of a witness whom he knew had a drinking problem?) (c) The hospital record of Sullivan's birth describes him as a healthy newborn with no developmental abnormalities.

The critical problem in the attorney's evaluation is this. At no point did anyone simply ask the mother if she drank during her pregnancy. 1995 WL 465172 at *3. When asked that question following the initial trial, she readily disclosed that she drank two pints of liquor a day during her pregnancy. In retrospect, and for future cases, that seems a simple question that should be asked at least in any capital case.

The court also concluded that a diagnosis of FAS would not have affected the outcome of the sentencing phase because the court recognized after the original sentencing hearing that Sullivan had limited intelligence and reasoning powers. 1995 WL 465172 at *4, *9. This aspect of the decision appears not to understand that the impact of FAS is far more complex than the reduction of I.Q. level.

Williams was convicted of murder and sentenced to death. In this habeas corpus action, he argued that he had been denied the effective assistance of counsel because at the penalty phase his attorney had failed to present to the jury evidence that Williams suffered from FAS.

The attorney did, however, introduce other mitigating evidence, including Williams' premature birth, epilepsy, head injuries, voluntary psychiatric commitment, lack of contact with his natural father, and parental abuse. (52 F. 3d at 1471). It is unclear if the attorney knew that Williams might have FAS, but the attorney did know (and introduce evidence) that Williams' mother was an alcoholic.

The court of appeals did not decide whether the attorney acted improperly in failing to develop or provide to the jury evidence of FAS. Instead, the court simply concluded that there was no reasonable probability that the jury would have voted for a lesser sentence. The court's decision was apparently influenced both by the fact that the jury was not swayed by the mitigating evidence that had been introduced, and by the nature of the crimes. (52 F. 3d at 1472).

Williams was convicted of murder and sentenced to death. He sought to set aside his conviction and sentence, arguing among other things that he was denied the effective assistance of counsel because his attorney had failed to investigate whether or not Williams had FAS. 254 Va. at 21.

The trial judge concluded on other grounds that Williams had been denied the effective assistance of counsel. The state Supreme Court reversed and reinstated the death sentence.