Court Cases by FloridaCherry v. State
781 So. 2d 1040, 25 Fla. L. Weekly S 719 (Fla. 2000)
Cherry was convicted of murder and sentenced to death. He sought post-conviction relief, asserting that his attorney had failed to provide effective assistance at sentencing. The attorney conducted no investigation related to mitigation and called no witnesses at the sentencing hearing.
In the post-conviction proceeding, Cherry attempted to prove that an investigation would have revealed that he had FAS, which (he asserted) would have been an important mitigating factor. The state judge who heard this claim held that he was not convinced that Cherry actually had FAS. The state Supreme Court affirmed, with one lengthy dissenting opinion.
The state judge appears not to have understood how FAS is diagnosed. Cherry's expert did a number of neuropsychological tests and concluded that Cherry had organic brain damage caused by FAS. (781 So. 2d 1060). The judge objected, however, that the expert had not based his diagnosis on any "physical test results." (781 So. 2d at 1044). At least as of 2001 there were no physical tests for FAS-based organic brain damage.
The expert relied on "accounts of [Cherry's] mother's alcohol abuse." (781 So. 2d at 1044). The state judge objected that it was mere "speculation" whether she drank during the pregnancy. As a practical matter it is likely that a woman with an alcohol problem would continue to drink during a pregnancy. It is unclear whether in this Cherry should have elicited information focusing specifically on the mother's alcohol use during the pregnancy. In some instances, however, information specific to a particular 9 month period 20 or more years ago may not be available.
At the time of trial Cherry was interviewed by an expert to assess his competency to stand trial; the expert then concluded Cherry was "of average intelligence." (781 So. 2d at 1045). After his conviction, Cherry was actually tested, and found to have an IQ of only 72. The state judge insisted Cherry was not retarded because the definition of "retarded" is limited to individuals with an IQ of 70 or less. [The difference between 72 and 70 is too small to be statistically meaningful.]
Although at the time of trial an expert was appointed to determine whether Cherry was competent to stand trial, the expert was not authorized to determine whether mitigating factors were present. The state judge concluded that that limitation was proper, because state law did not authorize the appointment of experts to develop mitigating evidence. (781 So. 2d 1047). [This appears to be inconsistent with the Supreme Court decision in Ake v. Oklahoma, 470 U.S. 68 (1985)]
Dillbeck v. Florida
882 So.2d 969 (Fla. 2004)
Dillbeck was convicted of first-degree murder, armed robbery, and armed burglary. In connection with Dillbeck's sentencing, the trial court considered various statutory and non-statutory mitigating circumstance, including that Dillbeck has FAE and that his capacity to conform his conduct to the requirements of the law was substantially impaired, but also found that there were numerous aggravating circumstances. Following the jury's recommendation, the trial judge sentenced Dillbeck to death. Dillbeck's arguments on appeal included ineffective assistance of counsel, claiming, among other things, that his attorney failed to request a PET scan. (The Court's opinion does not indicate whether the request for a PET scan was related to the fact that Dillbeck has FAE.) The circuit court denied relief, and Dillbeck appealed, seeking a writ of habeas corpus. Dillbeck's petition did not appeal the claim that counsel should have requested a PET scan, so although the court remanded the case to the circuit court to enter further findings with respect to Dillbeck's claims, it held that the circuit court need not address Dillbeck's claim with respect to the failure to request a PET scan.
Dillbeck v. State
643 So. 2d 1027 (Fla.)
This case holds that in Florida courts evidence of FAE should be admitted at the guilt phase of a trial if offered to show that the defendant lacked the mental state (here premeditation) that is part of a crime.
Dillbeck was charged with premeditated murder. The trial court refused to admit evidence of FAE at the guilt phase. Once Dillbeck had been convicted, the judge did permit introduction of that evidence at the sentencing hearing, and concluded that the defendant did have FAE. 643 So. 2d at 1028.
The Florida Supreme Court held that Dillbeck should have been allowed to offer that evidence in order to establish a defense of diminished capacity.
643 So. 2d at 1029-30.
Although this decision is binding only in Florida courts, it should be persuasive authority in other states, most of which permit proof of intoxication or other conditions to show a lack of specific criminal intent.
This decision also holds that the brain damage caused by alcohol use is a "commonly understood" phenomenon. 643 So. 2d at 1029. That may be important where a criminal defense attorney has failed to investigate the presence of FAS/FAE, and the defendant asserts that he or she was denied the effective assistance of counsel.
The passage in this opinion which stresses that the disabilities caused by FAS/FAE are beyond the capacity of the victim to prevent may be helpful in arguing that FAS/FAE should be a mitigating factor in sentencing.
The court concluded that the error of the trial judge in excluding the evidence would not have affected the outcome of the case, because there was substantial evidence that Dillard had carefully planned the crime.
Elledge v. Florida
911 So.2d 57 (Fla. 2005)
Elledge pled guilty to rape and murder and was sentenced to death. Elledge moved for post conviction relief, claiming, among other things, ineffective assistance of counsel. The trial court denied post conviction relief and Elledge appealed.
Elledge contends that he was denied effective assistance of counsel because trial counsel relied on mental health experts who were not board-certified, were improperly prepared, and who provided conflicting testimony. While one expert, Dr. Schwartz, testified that Elledge displayed signs of organic brain damage and fetal alcohol syndrome, Dr. Caddy, another expert, did not agree with Dr. Schwart's conclusions. While the trial court noted the discrepancy and found that Dr. Caddy's testimony diminished Dr. Schwart's credibility, the appelate court explained that "the thrust of the trial court's deconstruction of these mental health experts was not that they provided inconsistent testimony, but that their diagnoses were contradicted by the facts of the case and other episodes in Elledge's history." 911 So.2d at 72. In this regard, the trial court appears to have focused on whether Elledge was generally capable of exercising control over his violent impulses, in addition to any specific diagnosis. Based on the record, the appelate court held that Elledge could not viably assert that trial counsel's presentation and preparation of the mental health experts prejudiced his defense.
Floyd v. State
2002 WL 58547 (Fla.)
Floyd was convicted of murder and sentenced to death. He brought a state post-conviction proceeding, alleging among other things that he had been denied the effective assistance of counsel. The lower court rejected Floyd's claims without holding any hearing. The Florida Supreme Court ruled that an evidentiary hearing was required on Floyd's claims. "Floyd set forth a sufficient factual basis for relief which was not conclusively refuted by the record." 2002 WL 58547 At *3.
One of Floyd's claims was that his trial counsel could have learned through an adequate investigation of possible mitigating circumstances that Floyd had FAS. This was one of seven types of mitigating factors the trial attorney allegedly failed to unearth.
The decision does not contain a specific explanation of why the Florida Supreme Court concluded a hearing was needed. Footnote 15, the footnote to the sentence quoted above, contains no explanation of its own, but merely refers to footnotes 12, 13 and 14. Those footnotes contain the following statements:
(2) "According to his motion, Floyd stated that he had been examined by a mental health expert who found that he is mentally retarded and suffers organic brain damage. Specifically, Floyd asserted the mental health expert determined that he has an IQ of 60 and the mental age of a ten-year-old child." Note 12. The finding of brain damage may be a reference to FAS.
The dissenting opinion quoted a portion of the lower court decisions which noted that the trial attorney had called seven defense mitigation witnesses, and which stated that "the evidence presented during the penalty phase is inconsistent with, and directly refutes, Defendant's current claims of mental illness or retardation." 2002 WL 58547 at *9.
Francis v. State
529 So. 2d 670 (Fla. 1988)
Francis was convicted of murder and sentenced to death. He brought this post-conviction proceeding, alleging that he was denied the effective assistance of counsel at trial. Francis argued that his trial attorney had failed to offer as mitigation evidence proof that Francis had FAS.
The state judge who held a hearing on this claim ruled that Francis did not have FAS. This is one of the few cases in which the parties litigated and a court decided whether a particular individual had FAS. The evidence offered by each side is not described in detail. The witness called by Francis, a psychiatrist, had interviewed Francis, and based his diagnosis of FAS "primarily on Francis' facial characteristics." 529 So. 2d at 673. The prosecution's rebuttal expert, also a psychiatrist, testified that discussions between Francis and the trial judge at Francis' earlier trial "was grossly inconsistent with somebody who is brain damaged." 529 So. 2d at 673. Francis had an IQ in the normal range.
The appellate court rejected the ineffectiveness claim on the ground that there was not a "reasonable probability" that Francis would have avoided the death penalty if evidence regarding FAS had been introduced. 529 So. 2d at 673-74 and n. 9. This was based in part on the fact that the judge who rejected Francis' claim for post-conviction relief was the same judge who had earlier sentenced him to death.
A dissenting opinion noted that impairment due to brain damage was a mitigating factor under Florida law. 529 So. 2d at 678.
Hunter v. State
660 So. 2d 244 (Fla. 1995)
Hunter was sentenced to death for murder. The sentence was handed down by the trial judge, after the jury voted 9 to 3 in favor of the death penalty.
The trial judge found that a number of aggravating and mitigating circumstances were present. The judge specifically listed FAS as a mitigating circumstance. but the judge concluded that the existence of that mitigating factor (as well as others) was not sufficient to overcome the aggravating factors in the case. 660 So. 2d at 247.
Jones v. State
652 So. 2d 346 (Fla. 1995)
Jones was convicted of murder and sentenced to death. On appeal he argued that "a new sentencing hearing is required because the mental health experts who testified did not bring to the court's attention the fact that Jones likely suffers from fetal alcohol syndrome." 652 So. 2d at 351.
The appellate court held that this objection could not be raised on direct appeal; the trial judge did not err in failing to consider a mitigating factor that was never presented. However, the court noted that this issue could be raised in a proceeding for post-conviction relief. 652 So. 2d at 362.
Kearse v. State
770 So. 2d 1119 (Fla. 2000)
Kearse was convicted of murder and sentenced to death. At the sentencing hearing Kearse attempted to prove, as a mitigating factor, that he had FAE. The trial judge concluded that the existence of FAE had not been proven.
Nelson v. State
850 So. 2d 514 (Fla. 2003)
The defendant was convicted of murder and sentenced to death. On appeal he argued that the sentencing judge should have recognized as a mitigating consideration the fact that, because of FAS, Nelson lacked the capacity to appreciate the criminality of his acts.
In rejecting that contention, the appellate court noted that "there was no documentation that Nelson actually suffered from fetal alcohol syndrome." 850 So. 2d at 531.
[This may be a case in which there was insufficient evidence to support an FAS-based mitigation argument.]
Remeta v. State
710 So. 2d 543 (Fla. 1998)
Remeta was convicted of murder and sentenced to death. He filed a series of state post-conviction proceedings seeking without success to overturn his sentence.
This was the fourth such action. Remeta, among other things, asked the court to provide him with funds to hire an expert on FAS. The court denied the request on the ground that Remeta had had ample opportunity to seek such information at trial or in the earlier post-conviction proceedings. 710 So. 2d at 546.
Zack v. State of Florida
753 So. 2d 9 (Fla. 2000)
Zack was convicted of murder and sentenced to death. At the sentencing hearing the defense presented three expert witnesses who all testified that Zack had FAS. 753 So. 2d at 14.
For reasons that are not apparent from the appellate opinion, the trial judge who imposed the sentence did not find that mitigating evidence particularly persuasive. 753 So. 2d at 19 n. 8. The prosecution offered evidence to rebut this mitigating evidence; it is unclear whether the prosecution disputed the diagnosis, or simply relied on aggravating circumstances. 753 So. 2d at 19.
The trial judge's reasons for imposing the death sentence are set out in an unpublished sentencing order.
The details not apparent from the reported appellate decision may be important in understanding the impact of FAS in capital cases.