Harris v. Vasquez
913 F. 2d 606 (9th Cir. 1990)
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.
(2) The majority held that Harris did not have "new evidence", since the information suggesting he had FAS was available at the time of the 1979 trial. (913 F. 2d at 626-27). [That, of course, was the evidence the earlier psychiatrists did not recognize as showing that Harris might have FAS].
(3) The majority also concluded that it was unlikely the jury's verdict would have been different if the jury had known that Harris had FAS. 913 F. 2d at 627.
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