Cole v. Crosby
No. 505CV222OC10GRJ, slip op., 2006 WL 1169536 (M.D. Fla. 2006)
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.