Court Cases By Alabama

Court Cases by Alabama

Burgess v. Alabama
CR-02-0977, 2005 WL 2402672 (Ala. Crim. App. 2005)

Burgess was convicted of murdering his girlfriend and her two children. The jury voted to sentence Burgess to life without parole, but the judge set aside the jury's recommendation and sentenced Burgess to death. The circuit court denied Burgess' petition for post-conviction relief, and Burgess appealed.

Burgess' petition related primarily to claims of ineffective assistance of counsel at his trial and at sentencing. Among other things, Burgess claimed that his counsel should have called an expert witness on FAS, and should have obtained a neuropsychological assessment to investigate possible organic brain impairment. The circuit court concluded, and the appellate court agreed, that Burgess' counsel conducted a diligent investigation and introduced evidence in support of mitigation, and Burgess' claim was therefore denied.

Interestingly, the circuit court based its holding in part on the fact that the jury voted in favor of life imprisonment, implying that counsel's penalty-phase strategy was therefore successful. This apparently disregards the impact additional testimony on FAS or other mitigating factors may have had on the trial judge's decision to set aside the jury's recommendation and impose the death penalty.

Dobyne v. State
672 So. 2d 1319 (Ala. Crim. App. 1994)

The defendant objected to the introduction at trial of an incriminating statement he had made after receiving a   Miranda  warning and signing a waiver of rights form.

Dobyne asserted he lacked the mental capacity to understand those rights. The evidence he offered included testimony that (a) he appeared to have FAS, (2) he had an IQ of 73, (3) he had mental capability of a 12 or 13 year old. A former teacher testified that Dobyne could read "some" but that, "in her opinion, he could not have understood all the terms in the rights waiver form he signed." He had, on the other hand, graduated from high school. 672 So. 2d 1336.

The trial judge had concluded the waiver was knowing. Because Dobyne's attorney had failed to raise this issue at the suppression hearing (but apparently did raise it later), the admission of the statement could be overturned on appeal only if there was "plain error." 672 So. 2d at 1336. The appellate court ruled,

"[T]here is no evidence that the appellant could not understand that he had the right to remain silent and that he had the right to an attorney. The court did not err in receiving appellant's confession into evidence at trial."

672 So. 2d at 1337. This first sentence is unclear. If it asserts that Dobyne was capable of understanding the concept of a right to remain silent and speak with an attorney, the sentence is correct but not dispositive--the issue is whether Dobyne did understand that at the time he signed the waiver. On the other hand, if the sentence asserts there is no evidence Dobyne did not understand at the time that he had those rights, the sentence is simply incorrect--the teacher's testimony is evidence of precisely that conclusion.

The opinion contains several statements relevant to a determination of whether an individual with FAS/FAE had made a knowing waiver of his or her rights.

(1) "While an accused's intelligence and literacy are important factors to be considered in determining whether he intelligently and voluntarily waived his constitutional rights and made a confession, weak intellect or illiteracy alone will not render a confession inadmissible." 372 So. 2d at 1337, quoting   Hobbs v. State, 401 So. 2d 276, 282 (Ala. Cr. App. 1981). This passage is a bit obscure, but it seems to mean that limited intelligence or literacy are sufficient to suppress a confession only insofar as they demonstrate that the defendant did not in fact understand the rights he was waiving.

(2) "[A] defendant's mental impairment, even if it exists, is merely one factor affecting the validity of his waiver of rights." 372 So. 2d at 1337.

(3) "[T]he fact that a defendant may suffer from a mental impairment or low intelligence will not, without other evidence, render a confession involuntary." 372 So. 2d at 1337. This seems somewhat beside the point; evidence insufficient to prove an act was voluntary might be sufficient to prove a waiver was not knowing and intelligent.

Dobyne subsequently sought without success to argue that he was denied the effective assistance of counsel in presenting this argument.  Ex parte Dobyne, 2001 WL 670506 (Ala.);   Dobyne v. State, 2000 WL 869500 (Ala. Crim. App.).

Ex parte Dobyne
672 So. 2d 1354 (Ala. 1995)

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
"conducted the neuropsychological evaluation and explained that such an evaluation involves the assessment of such functional abilities as memory, problem solving, and language, through the use of standardized psychometric tests. Neuropsychological evaluation results are able to describe the functional deficits related to neurological problems."

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.

"[The psychologist] explained that testing in a neurological examination includes such procedures as an EEG, an MRI, and a CT scan, and that that testing would assess and localize anatomical and physiological details of any neurological dysfunction."

672 So. 2d at 1358. The court reasoned

"A neurological evaluation would determine whether Dobyne had actual brain damage. However, [the psychologist] testified that Dobyne evidenced characteristics of a person with such a neurological condition. A neurological evaluation would merely be redundant of such testimony and would add nothing significant."

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.

Snipes v. State Department of Human Resources
542 So. 2d 282 (Ala. Civ. App. 1989)

The court approves termination of the mother's parental rights. The child had been diagnosed with FAS and a number of other problems. The mother's inability to care for the special needs of the child was a major factor in the determination to terminate her parental rights. 542 So. 2d at 284.