Horsley v. State of Alabama
45 F. 3d 1486 (11th Cir. 1995)
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).