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.

Castro was convicted in state court of murder, and sentenced to death. He brought a federal habeas corpus action seeking to overturn his sentence.

The court of appeals held that the defendant was entitled to the assistance of a court-appointed and paid for medical expert. Castro argued that he needed such assistance to develop evidence regarding five different problems, one of which was fetal alcohol syndrome or fetal alcohol effect. (71 F. 2d at 1510). The specific type of expert he sought was a psychiatrist. (A psychiatrist undoubtedly would have been better qualified to evaluate several of Castro's other problems than to evaluate possible FAS/FAE).

The court concluded that a criminal defendant was entitled to such experts provided that he had made a substantial showing that his mental state was in dispute and was relevant to the outcome of the case, either to the guilt determination or to the sentence. (71 F. 3d at 1513-14). Although one medical expert had been appointed, the court concluded he was probably not qualified to assess the medical issues in the case. (71 F. 3d at 1515).

The court concluded that more complete information about Castro's mental health might have persuaded the jury to vote against the death penalty. (71 F. 3d at 1516).

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Cherry was convicted of murder and sentenced to death. He sought post-conviction relief, asserting that his attorney had failed to provide effective assistance at sentencing. The attorney conducted no investigation related to mitigation and called no witnesses at the sentencing hearing.

In the post-conviction proceeding, Cherry attempted to prove that an investigation would have revealed that he had FAS, which (he asserted) would have been an important mitigating factor. The state judge who heard this claim held that he was not convinced that Cherry actually had FAS. The state Supreme Court affirmed, with one lengthy dissenting opinion.

The state judge appears not to have understood how FAS is diagnosed. Cherry's expert did a number of neuropsychological tests and concluded that Cherry had organic brain damage caused by FAS. (781 So. 2d 1060). The judge objected, however, that the expert had not based his diagnosis on any "physical test results." (781 So. 2d at 1044). At least as of 2001 there were no physical tests for FAS-based organic brain damage.

The expert relied on "accounts of [Cherry's] mother's alcohol abuse." (781 So. 2d at 1044). The state judge objected that it was mere "speculation" whether she drank during the pregnancy. As a practical matter it is likely that a woman with an alcohol problem would continue to drink during a pregnancy. It is unclear whether in this Cherry should have elicited information focusing specifically on the mother's alcohol use during the pregnancy. In some instances, however, information specific to a particular 9 month period 20 or more years ago may not be available.

At the time of trial Cherry was interviewed by an expert to assess his competency to stand trial; the expert then concluded Cherry was "of average intelligence." (781 So. 2d at 1045). After his conviction, Cherry was actually tested, and found to have an IQ of only 72. The state judge insisted Cherry was not retarded because the definition of "retarded" is limited to individuals with an IQ of 70 or less. [The difference between 72 and 70 is too small to be statistically meaningful.]

Although at the time of trial an expert was appointed to determine whether Cherry was competent to stand trial, the expert was not authorized to determine whether mitigating factors were present. The state judge concluded that that limitation was proper, because state law did not authorize the appointment of experts to develop mitigating evidence. (781 So. 2d 1047). [This appears to be inconsistent with the Supreme Court decision in Ake v. Oklahoma, 470 U.S. 68 (1985)]

Dobyne was convicted of murder and sentenced to death. Prior to his trial Dobyne filed a motion for funds to hire a neurologist. Dobyne offered evidence that he had FAS, and sought appointment of the neurologist to confirm that diagnosis.

The trial court denied the motion, and the Alabama Supreme Court affirmed. The appellate court reasoned that Dobyne had failed to show that there was a "reasonable probability" that appointment of the neurologist would have affected the outcome of the case.

The trial judge did provide funds to hire a "mitigation investigator" to conduct a full investigation of his background, including the fact that his mother had abused alcohol. 672 So. 2d at 1358. Dobyne subsequently obtained a letter from a clinical psychologist (how he paid for this is not clear) noting that Dobyne had a history of FAS. The letter recommended two evaluations: (1) a neuropsychological evaluation, to be done by the psychologist, and (2) a neurological evaluation. The court agreed to funds for only the first.

The psychologist whom the court funded

672 So. 2d at 1358. The evaluation concluded that Dobyne had, and described, "functional deficits that were related to neurological conditions." 672 So. 2d at 1358.

The court concluded that appointment of a neurologist would have been unlikely to affect the outcome of the case because that expert would have been redundant. The neuropsychological tests alone met Dobyne's trial needs.

672 So. 2d at 1358. The court reasoned

672 So. 2d at 1359.

This decision is squarely inconsistent with the decision in Cherry v. State, 781 So. 2d 1040 (Fla. 2000), holding that neuropsychological evidence of FAS was insufficient because the defendant had failed to offer physical evidence of brain damage. That decision held essential the very evidence which this decision holds is entirely unnecessary. Both decisions appear to be incorrect. Neuropsychological assessment is a sufficient method of diagnosis, and in the past one of the primary methods of diagnosis. On the other hand, a defendant should be offered the opportunity to obtain neurological evidence, which a jury may find more persuasive, particularly if the prosecution does not agree that FAS is present.

Nonetheless, the fact that in this case first an investigator and then a psychologist were funded by the court to look into FAS represents a better response than occurs in many cases.

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

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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).

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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.

The Texas Department of Protective and Regulatory Services sued to terminate the parental rights of the mother of M.A.C.. This action was brought while M.A.C. was a newborn, and was initially based on the fact that M.A.C. tested positive for cocaine at birth.

At trial the Department apparently contended that M.A.C. suffered from both FAS and "fetal cocaine syndrome" The mother requested that the court appoint an expert witness to determine the severity of these two syndromes. The court denied the request, and terminated the mother's parental rights on the ground that she "could not meet M.A.C.'s special needs." 49 S.W. 3d at 924.

The court of appeals reversed, holding that the mother was entitled to her own expert to evaluate the medical evidence.

49 S.W. 3d at 924.

Because there are a substantial number of cases in which termination of parental rights is based on the special needs of a child with FAS, the possibility that the parents in such a case would be entitled to their own medical experts has far reaching implications.

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.

Rose was convicted of murder and sentenced to death. He appealed the sentence on the ground, among other things, that the trial judge had refused to appoint a neuropsychologist to evaluate whether he had FAS.

The trial court's opinion, and that of the appellate court, appear not to fully understand the distinction between (a) FAS and alcohol abuse by the defendant, and (b) FAS and other behavioral disorders.

The appellate opinion notes that the trial court had appointed two psychiatrists who concluded that Rose did or might suffer from eight problems or disorders other than FAS. Rose offered an affidavit from a neuropsychologist explaining that neurological and neuropsychological testing would reveal whether Rose had FAS. The appellate court held:

451 S.E. 2d at 220.

FAS, of course, is entirely different from alcohol abuse. The existence of evidence of "other disorders" does not mean that proof of FAS might not be highly relevant.

This case does, however, illustrate the need for counsel to articulate, and courts to understand, specifically why FAS would be a mitigating factor--(1) it is organic in nature, not simply a clinical term for a bad disposition, (2) it arises from circumstances entirely beyond the individual's control (unlike, for example, alcohol abuse), and (3) it affects the ability of a defendant to understand the norms of society or to conform his conduct to them.

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.

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.