Francis v. Dugger
908 F. 2d 696 (11th Cir. 1990)
697 F. Supp. 472 (S.D. Fla. 1988)

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.

(1) A state court in which Francis attempted to overturn his sentence held an evidentiary hearing on this question. Francis' psychiatrist testified that he had FAS. A state psychiatrist testified that Francis did not, arguing that his behavior "was inconsistent with that of someone who has brain damage and that there was no conclusive evidence that he suffered from fetal alcohol syndrome." (697 F. Supp. at 480). Francis had an I.Q. within the normal range, and his trial attorney testified that he found Francis to be a "sharp fellow." Based on this evidence the state judge concluded that Francis did not suffer from FAS. (697 F. Supp. at 480).

[While it is impossible to tell if that finding was correct, it may reflect some misunderstanding of FAS. In some instances individuals with FAS do have IQs in the normal range. They may also be talkative in a way which is unlike the behavior of someone who is mentally retarded.]

(2) The federal court of appeals concluded that there was no denial of effective assistance of counsel because Francis' attorney had reason to believe that it "would be fruitless" to retain an expert to evaluate whether Francis had FAS. (908 F. 2d at 703). A claim of ineffectiveness will at least ordinarily require a showing that the attorney in question had some basis for believing that the defendant had FAS.

The court of appeals reasoned that the trial attorney had no basis for believing that Francis had FAS because "he is articulate and his speech exhibits highly structured and organized reasoning." 908 F. 2d at 703. The second factor cited by the court seems inconsistent with FAS; the first does not.

(3) The court of appeals concluded, without significant explanation, that any denial of effective representation was harmless. It apparently believed that Francis would have been sentenced to death even if the jury knew he had FAS. (908 F. 2d at 704)

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