State v. Anderson
2002 WL 1278062 (Wash. Div. App. 2)
Anderson was charged with raping a young woman with FAS, and was convicted of the lesser charge of attempted rape. The case was tried before a judge sitting without a jury.
On the night of the alleged attack the victim told a longtime acquaintance that she had been repeatedly raped by Anderson, with repeated incidents of ejaculation. The hospital tests revealed no sperm. The judge acquitted Anderson of the charge of actual rape.
"The judge recognized that [the victim's] testimony was inconsistent on the issue of whether or not penetration had occurred. The court noted, however, that [the victim's] memory is poor and that her ability to comprehend questions and process information was impaired by her disability. The court also noted that she was not sophisticated or intelligent enough to fake the emotional response that she exhibited after the incident."
2002 WL 1278062 at *1.
It is not possible to ascertain from the reported opinion what evidence in the case would have supported the distinct charge of attempted rape.
Bateman v. Valley Clinic
127 Wash. App. 1002, 2005 WL 895818 (Wash. Ct. App. 2005)
The plaintiffs are the parents of a healthy child conceived following an unsuccessful vasectomy. In their wrongful birth claim, the plaintiffs cited McKinney v. State, 134 Wn.2d 388, 950 P.2d 461 (1998), a case that recognized a cause of action stemming from an adoption agency's negligent failure to disclose a childÕs FAS diagnosis. The Court found that the McKinney case was inapplicable to the plaintiff's claim, because while damages for the rearing of an unhealthy child (i.e. one with FAS) may be appropriate, such damages are not appropriate with respect to a healthy child.
State v. Brett
126 Wash. 2d 136, 892 P. 2d 29 (1995)
In the Matter of Brett
142 Wash. 2d 868, 16 P. 3d 601 (2001)
After Brett was convicted of murder, his trial attorney asked for a one month delay to obtain a diagnosis regarding FAS/FAE. The motion was denied, and after a sentencing hearing the jury imposed the death penalty.
On direct appeal Brett challenged the denial of the requested delay, objecting that it prevented him from obtaining such a diagnosis. The Washington Supreme Court in 1995 rejected that argument and upheld Brett's sentence. 892 P. 2d at 63-65.
Brett then brought a state post-conviction proceeding, in which he asserted he had been denied the effective assistance of counsel because his trial attorney had failed to obtain such a diagnosis prior to trial. In 2000 the trial attorney was disbarred. 16 P. 2d at 609 n. 2. In 2001 the Washington Supreme Court held that Brett had been denied the effective assistance of counsel, and overturned his death sentence.
In connection with the post-conviction proceeding two doctors diagnosed Brett as having FAE. Dr. Moore performed a clinical interview with Brett and reviewed his Department of Juvenile Rehabilitation records, school records, as well as other medical reports and records and affidavits from family members. Dr. Dolan did a physical examination of Brett and reviewed Brett's medical, educational and psychological records and the 1992 trial testimony. 16 P. 2d at 604-05.
The court in 2001 explained that:
16 P. 2d at 605. Dr. Robin A. LaDue testified that FAE had
16 P. 2d at 605.
One month prior to trial the defense attorney obtained the appointment of a mental health expert, Dr. Stanulis, who reviewed Brett's school, medical and Department of Corrections records. On the day he was schedule to testify, however, Dr. Stanulis informed counsel that because he was a psychologist, not a psychiatrist, he was not qualified to diagnose or testify about FAS/FAE. 16 P. 2d at 606. Thus "the only expert defense [witness] retained by the defense could not render expert opinion and could not be used to support a defense theory." 16 P. 2d at 606.
At the post-conviction proceeding both Dr. LaDue and a Dr. Michael A. Dolan testified that a diagnosis of FAE could only be made by a qualified medical doctor or geneticist. 16 P. 2d at 605.
The 2001 opinion recites that defense counsel at the last minute instead presented another witness in place of Dr. Stanulis.
16 P. 2d at 606 n.1.
At the post-conviction proceeding Brett offered diagnoses of FAE by Dr. Julia L. Moore, a psychiatrist, and Dr. Michael A. Dolan, a medical doctor and an expert on prenatal exposure to alcohol. Dr. Ladue testified about the impact of FAE. 16 P. 2d at 605.
In this case the trial judge permitted defense counsel, even in the absence of a formal diagnosis, to urge the jury to conclude that Brett had FAS or FAE. The judge concluded that the jury could make such an inference where the record included (a) evidence that Brett's mother drank (it is unclear if the evidence referred specifically to drinking during the pregnancy), (b) evidence of the behavior characteristics typical of FAS/FAE, and (c) testimony that Brett had behaved in that manner. 892 P. 2d at 64.
In addition, a diagnosis of FAS/FAE, according to defense retained expert Dr. Stanulis, would place nothing more than a label on Brett's lower intelligence and behavioral problems, evidence which was already before the jury. With or without the diagnosis or label, the defense could argue that such evidence mitigated in favor of the lesser sentence."
892 P. 2d at 64.
The subsequent 2001 decision seems intelligible only as embodying a conclusion that it might well have effected the outcome of the case if Brett had also had a formal FAE diagnosis, a conclusion seemingly inconsistent with the court's 1995 opinion. The distinction seems critical to this and most FAS/FAE ineffectiveness claims. There is a world of difference between evidence of past behavioral problems, and evidence that a defendant has organic brain damage, FAS/FAE, which caused such behavior. A critical question in sentencing is whether a defendant may not be (fully) responsible for the actions which constituted the crime. A history of behavior problems, without that causal explanation, may convince the jury only that the defendant is a chronic miscreant. That is what occurred in the sentencing opinion in the Bonner case.
Ineffective Assistance of Counsel
The critical failing of the defense attorney was delay. Brett's trial attorney knew that Brett had mental problems. The attorney did not seek to retain a mental health expert until a month before trial was to begin. The expert was only appointed 19 days before trial, and the expert was not provided with Brett's school, medical and Department of Corrections records until two days before trial. 16 P. 2d at 606. By the time the expert had identified FAS/FAE as the critical problem, and disclosed that he could not diagnose or testify about that condition, it was the very day on which the expert was supposed to testify.
The physicians who testified in the post-conviction proceeding specifically stated that in 1992, at the time of the original trial, it was possible to diagnose FAE. 16 P. 2d at 604-05.
In holding that the attorney's representation was constitutionally insufficient, the Washington Supreme Court explained:
16 P. 2d at 607.
A sentence or conviction can only be overturned because of ineffective representation if there is a showing that that ineffectiveness might have affected the sentence or conviction that occurred. In a large number of cases in which defendants have based an ineffectiveness claim on the failure of defense counsel to raise FAS/FAE as a possible mitigating factor, the courts have summarily held, without explanation, that the sentence would have been the same even if that evidence had been developed and presented. In this case, the Washington Supreme Court reached the opposite conclusion, but also did so without any explanation of how it concluded that the missing evidence might have mattered.
State v. Christoph
2000 WL 1854134 (Wash. App. Div. 3)
Christoph was diagnosed with FAS and was repeatedly institutionalized for psychiatric problems. When she was 16, she told a staff member at a residential adolescent psychiatric facility that she had repeatedly abused her younger sister.
The information was passed to the police, and Christoph was charged with one count of rape in the first degree. She was represented by the Public Defender's Office in Spokane. She pled guilty and was committed to custody for 21-28 weeks.
Four years later Christoph obtained new counsel and moved to vacate her guilty plea, alleging that she had been denied the effective assistance of counsel when she pled guilty. The lower court held that christoph had been denied the effective assistance of counsel, and set aside her guilty plea and conviction. The appellate court affirmed.
The lower court concluded from contemporaneous police reports that the alleged victim had never even been interviewed by authorities. Aside from Christoph's confession,
2000 WL 1854134 at *5.
The lower court
2000 WL 1854134 at *4.
State v. Dearbone
125 Wash. 2d 173, 883 P. 2d 303 (1994)
Dearbone was charged with murder. In an effort to persuade the prosecuting attorney not to seek the death penalty, the defense attorney provided the prosecution with mitigating information in the form of evidence that Dearbone suffered from FAS and possibly (other?) organic brain damage. The prosecutor decided to seek the death penalty anyway.
The court held that the prosecution could not seek the death penalty because it had failed to provide to Dearbone's attorney timely notice of its intent to do so.
Devereaux v. Perez
2000 WL 1781357 (Wash. App. Div. 3)
Devereaux was charged with a large number of sexual offenses against children. Most of those charges were ultimately dropped. His case was one of a number of controversial cases involving similar allegations, many of which were ultimately discredited, against adults in Wenatchee, Washington.
Devereaux sued a number of state officials. The particular question in this case was whether several employees of the Department of Social and Health Services had acted reasonably in their role in the investigation. Although the DSHS workers were not the initial interrogators, the court held that "they were aware of the facts and circumstances that would have led any reasonable investigator to at least question the allegations against Mr. Devereaux." 2000 WL 1781357 at *10.
One of the children who made (and later recanted) allegations against Devereaux
It is unclear whether the DSHS workers knew at the time that this child had FAS, or whether the court was relying on any such knowledge in holding that the workers may have acted unreasonably.
This case is perhaps more important as an illustration of the risk that an individual with FAS can too easily be induced by interrogators to tell them what they want to hear.
State v. E.A.J.
67 P. 3d 518 (Wa. Ct. App. 2003)
E.A.J., then age 13, was charged with using force to sexually assault a 5 year old girl who knew and trusted him. Dr. Robin Ladue testified that E.A.J.'s family history, intellectual ability and behavior indicated that he might have FAS or FAE. 67 P. 2d at 523. She also testified that he needed prolonged treatment, and recommended that E.A.J. remain in the community during treatment, rather than being jailed.
The appeal concerned an unrelated issue about the interpretation of a plea bargain that had been entered into between E.A.J. and the prosecution.
In the Matter of the Personal Restraint of Brian Keith Lord
868 P. 2d 835, 123 Wash. 2d 296 (1994)
Lord was convicted of murder and sentenced to death. In this state post-conviction proceeding, he asked the court for funds to hire an expert on FAS to determine if trial counsel was ineffective by failing to present FAS as mitigating evidence.
The court denied the request. It reasoned that the trial attorney did not have "reason to believe that Lord's mother drank while she was pregnant." 868 P. 2d at 855. Thus, the court held, it could not be ineffective assistance for the lawyer to have failed to offer (or seek) evidence of FAS.
Lord's attorneys "spoke to several of Lord's family members and were aware he had psychological problems, and they called a neuropsychologist in the penalty phase to describe those problems." 868 P. 2d at 855. The opinion does not state what those problems were.
It is unclear whether the family members denied the mother drank, or whether the attorneys simply failed to ask. If they simply failed to ask, that would call into question the correctness of the decision. First, if the attorneys knew that Lord had behavioral problems, it seems they should reasonably have attempted to find out why. Asking about maternal alcohol use was an obvious and easy method of inquiry. Second, even absent those behavioral problems, the appropriate standard of care in a capital case may include at least asking about maternal alcohol use. Some decisions stress that no ineffectiveness was involved because the attorney did ask about alcohol use and was told the mother did not drink; those decisions are in some tension with a decision (which this may or may not be) holding that a complete failure to inquire is not ineffective assistance.
Mahaney v. Mahaney
51 P. 3d 776, 146 Wash. 2d 878 (2002)
The trial court awarded custody of Natasha and Jesse Mahaney to their paternal grandparents. Experts diagnosed both children as having FAS. 51 P. 3d at 790.
In awarding custody to the grandparents, the trial court concluded that "[t]he mother is not presently able to address the children's special medical and psychological needs." 51 P. 3d at 785.
State v. Martinez
1999 WL 152847 (Wash. App. Div. 1)
Martinez was convicted of robbery and arson. He appealed his sentence, arguing that the trial court should have imposed a sentence below the standard range. The appellate court affirmed.
Martinez sought a downward reduction on the ground, among other things, that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired. Washington law expressly makes that a mitigating factor. 1999 WL 152847 at *1. Martinez contended that FAE might have caused such an impairment.
The appellate court agreed that an impairment of that sort would be a mitigating factor if certain conditions were met.
1999 WL 152847 at *3.
Martinez relied on the testimony of Dr. Robin LaDue. With regard to FAS/FAE, Dr. LaDue apparently was able to conclude only that Martinez "was prenatally exposed to alcohol." 1999 WL 152847 at *2. "A subsequent evaluation ruled out fetal alcohol syndrome, although it did not eliminate a diagnosis of fetal alcohol effects." 1999 WL 152847 at *3. Neither the appellate opinion nor the quoted excerpts from the trial court opinion state specifically why this proffered mitigating factor was rejected, but it appears that that occurred because there was not a firm diagnosis of FAS.
McKinney v. State
950 P. 2d 461, 134 Wash. 2d 388 (1998)
The court holds that under Washington law an adoption agency can be sued for negligent failure to disclose information to adoptive parents. 950 P. 2d at 465-70. The decision discusses opinions in a number of other states on this issue.
In this case the plaintiff parents lost because the jury found that they would have adopted the child in question even if they had been fully informed about her condition. 950 P. 2d at 471
Miller v. Department of Social and Health Services
2003 WL 220958 (Wash. App. Div. 1)
The Millers sued DSHS for wrongful adoption, alleging the agency breached its statutory obligation to disclose the health and social history of the child they adopted. The jury found that DSHS was negligent in failing to disclose information required by law, but concluded that the Millers would have adopted the child even if the disclosures had been made. 2003 WL 220958 at *1.
The trial court excluded expert testimony that the child had FAE. The expert was a Dr. Robert Galack, who had treated the child at the Fairfax Psychiatric Hospital. Galack knew that the mother drank before and after the pregnancy (by then 13 years earlier), but had no specific evidence that she drank during the 9 months of the pregnancy. Galack thought that that was sufficient to infer that she drank during the pregnancy.
The appellate court held that any inference that the mother drank during pregnancy was pure speculation, and that the diagnosis of Dr. Galack was therefore inadmissible.
2003 WL 220958 at *8. This reasoning seems in conflict with the analysis in In the Matter of Natasha Milland, 146 Misc. 2d 1, 7-8 (Family Ct. N.Y. County 1989).
This decision highlights the need to inquire quite specifically about alcohol use during the pregnancy in question.
In re the Detention of Nicholas
1999 WL 305229 (Wa. App. 2d)
Upon completion of Nicholas' term of confinement for assault with sexual motivation, the state brought this action to have Nicholas determined to be a sexually violent predator and to have him committed to the custody of the Department of Social and Health Services until he was "so changed that [Nicholas] is safe to be conditionally released to a less restrictive alterative or unconditionally discharged." The trial court ordered that Nicholas be so detained, and the appellate court affirmed.
The appellate court's opinion states in part:
1999 WL 305229 at *3.
State v. Pirtle
127 Wash. 2d 628, 904 P. 2d 245 (Wash. 1996)
Pirtle was convicted of two murders and sentenced to death. The state Supreme Court upheld the conviction and sentence. The issues on appeal were not related to FAS.
At trial Pirtle sought to rely on FAS as a mitigating factor."clinical psychologist Robin LaDue described fetal alcohol syndrome and testified the Defendant had the same pattern of problems apparent in persons suffering from fetal alcohol syndrome and who function best with external structure and control." 904 P. 2d at 641. The jury nonetheless voted for the death penalty.
The attempt to invoke FAS in this case may have been undermined by the lack of an actual diagnosis.
Price v. State
96 Wash. App. 604, 980 P. 2d 302 (1999)
Mr. and Mrs. Price sued the state of Washington alleging wrongful adoption.
When the child was only a year old state officials diagnosed him as having neurological disorders. This was not disclosed to the parents, and after the adoption the child's pediatrician for several years detected no problems. At the age of 5 the child was diagnosed as hyperactive. At 8 or 9, a psychologist diagnosed the child as having "conduct disorder." As he grew older, his conduct become more destructive and uncontrollable. He was placed on numerous medications, without success. Finally, at the age of 14, the child was diagnosed by specialists at the Oregon Health Sciences University as having FAE.
The main issue on appeal was whether the parents had waited too long to sue. Although the Prices by 1991 clearly knew that the child had neurological problems, and suspected FAS/FAE, the court concluded that it was not until 1994 that the parents had learned enough that they were on notice of their claim against the state.
Among other things, the state officials had been told by the child's mother that during the pregnancy the mother had been drunk, although the sister had not actually seen the mother in the act of drinking. 980 P. 2d at 307. The court concluded the sister's observations were sufficient to put the state on notice. 980 P. 2d at 311.
Schoonover v. State
116 Wash. App. 171, 64 P. 3d 677 (2003)
Schoonover, who has FAS and is mildly retarded, was in foster care from ages 7 to 16. He alleged that during that period the state had failed to provide him with needed treatment, and that the state had also failed to protect him from repeated instances of mental, physical and sexual abuse. 64 P. 3d at 879-80.
The case was dismissed on procedural grounds.
State v. Sidwell
1997 WL 1340003 (Wash. App. Div. 1)
Sidwell was charged with a murder which occurred when he was 14. The state juvenile court declined jurisdiction, which permitted the state to prosecute Sidwell as an adult. Sidwell plead guilty, but challenged the decision to decline jurisdiction.
One reason the juvenile court gave for declining jurisdiction was that the state juvenile detention facility did not have any program for treating FAS and FAE. 1997 WL 1340003 at *3. Sidwell objected that this was an impermissible ground for waiving jurisdiction, asserting that it violated the Americans With Disabilities Act. The appellate court rejected this argument because Sidwell had provided no supporting legal authority. 1997 WL 1340003 at *3 n. 9.
Sidwell had been evaluated two years before the murder by Dr. Robin LaDue, a clinical psychologist. Both attorneys interviewed Dr. LaDue, and the transcript of the interview was put in evidence. LaDue had diagnosed Sidwell with FAS. LaDue concluded that Sidwell was "at a high risk to reoffend, particularly without a high[ly] structured situation." On the other hand, she believed that Sidwell "would not survive if he was put in the adult [prison] situation given his poor social skills and impulsive behavior and not understanding the consequences of his behavior." 1997 WL 1340003 at *1.
This appears to represent the failure of the criminal justice system to find an appropriate method of dealing with an individual with FAS. Sidwell had been diagnosed with FAS at the age of 12. By the time of the killing he had six prior misdemeanor convictions and two felony convictions, including four assaults and one robbery. The killing appears to have been an impulsive reaction to a fistfight before a dance.
State v. S.S.
67 Wash. App. 800, 840 P. 2d 891 (Wash. Ct. App. 1992)
S.S., a juvenile, pled guilty to two counts of joy riding and one count of obstructing a public servant. Although the standard range of confinement for those offenses was 16-24 weeks, he was sentenced to 80 weeks.840 P. 2d 894-95.
S.S. challenged the sentence in part on the ground that the court failed to require an evaluation of whether he suffered from FAE. The trial court denied the request on the ground that, even if S.S. had FAE, "I do not feel that it would be weighty enough to affect the disposition of this matter." The appellate court concluded that that reason was "untenable." 840 P. 2d at 898. The apparent significance of this portion of the opinion is that FAE would indeed be a mitigating factor under state law, and that in an appropriate case a defendant would be entitled to the appointment of an expert to evaluate whether he or she had FAE.
In this case S.S. offered two witnesses who testified that the University of Washington was conducting "research" about FAE. 840 P. 2d at 811. The appellate court concluded that that was insufficient to support the request.
840 P. 2d at 812.
The lack of a showing that a diagnosis was actually available from some expert could ordinarily be corrected in any future case.
The reasoning of the court seems at odds with other decisions on this subject. In most cases the critical question is whether a sufficient basis exists for believing that an evaluation for FAS/FAE would produce mitigating or exculpatory evidence; if so, the defendant is not usually asked to identify in advance the particular expert who would do the evaluation. Obviously such experts do exist.
State v. William K.
1997 WL 222804 (Wash. App. Div. 1)
William K. plead guilty to taking a motor vehicle without permission. The prosecutor recommended a standard range sentence of 13-16 weeks. The probation counsellor recommended 68 weeks, based on William's need for treatment and his high risk to reoffend. The trial court imposed a sentence of 68 weeks, and the appellate court affirmed.
At the sentencing hearing the defense counsel asked for a two week continuance to obtain the results of a fetal alcohol evaluation that had been done the previous week. The court denied the motion, and proceeded to impose the sentence. The appellate court upheld this decision, noting that two experts had already indicated they thought it likely that William had FAS. 1997 WL 222804 at *2.
In this case the psychologist and psychiatrist who evaluated William indicated both (a) that his mental disabilities contributed to the offense, and were thus a mitigating factor, and (b) that those disabilities made it highly likely that he would reoffend. The trial court thought the risk of reoffense outweighed the mitigating impact of the disability. 1997 WL 222804 at *4-*5.
Williams also argued that the heavy sentence was inappropriate because
1997 WL 222804 at *5. In other circumstances this argument might well pose serious legal or constitutional problems.