Court Cases on the Diagnosis of FAS/FAE
1998 WL 855512 (Conn. Super.)
Court approves termination of the parental rights of the mother, who has FAS.
The mother at age 37 possessed "the distinctive facial abnormalities of the disorder," as well as "congenital neuro-cognitive impairment in her ability to organize events and its impact on the higher cognitive functions such as anticipating and making connections between events."
The mother had since the age of 16 been receiving SSI benefits. "Because of her condition and abilities, [the mother] has only had marginal employment on an intermittent basis during her life." (*1).
There was evidence of a number of incidents of sexual and other abuse of the child involved.
784 N.E. 2d 240, 336 Ill. App. 3d 476, 271 Ill. Dec. 22 (App. Ct. 2002)
The appellate court declined to transfer guardianship of girl with FAS to her foster parents, but also declined to order that she be immediately placed in the custody of her biological father.
There was a dispute in this case about whether the child in question, Zayda, actually had FAS. A pediatrician testified that Zayda did have FAS, while a pediatric geneticist concluded that she had neither FAS, FAE, nor ARND. The latter physician testified that if there were evidence that the mother consumed alcohol during pregnancy, that might alter her diagnosis. The trial court had already concluded that the mother did drink during the pregnancy. The child had an IQ of 100; both experts agreed that that did not rule out a diagnosis of FAS. The trial court downplayed the importance of the disagreement about whether the child had FAS/FAE, since both experts agreed that Zayda needed continuing therapy sessions.
Zayda was first diagnosed with FAS in January 2000, when she was less than two. A court "ordered early intervention therapies, developmental classes, and occupational and speech therapy." She was later was "kicked out" of two day care centers for behaving badly, but her ability to extract and use learned information had improved.
The biological father had attended some of the child's therapy sessions, and understood and was attempting to help her deal with her problems.
"[He] used games, puzzles, and toys to teach her to remain focused on tasks. He also calmed Zayda when she became disoriented, frustrated, anxious, and afraid."
629 F. 2d 1295 (Ct. App. 4th Cir. 1993)
Christopher April was born in 1984, and adopted by the plaintiffs in 1985. In 1991 the parents sued the adoption agency for "wrongful adoption." The trial court concluded that Louisiana law recognized a claim for wrongful adoption; the appellate court did not reach that issue.
Instead, the court of appeal concluded that the parents had waited too long to sue. The court held that, at the least, the parents had reasonable notice that they might have a cause of action when their pediatric neurologist told them that the child had FAS. The court's opinion suggested the parents were on notice years earlier that the child had serious neurological problems, and that it might not matter that they only learned later that FAS was the cause. (629 So. 2d at 1298). Under Louisiana law the parents were required to file suit within one year of the date when they knew that they had a claim, which they had not done.
The earliest signs of possible FAS were that the child had a small-head (microcephalic), and had a seizure when he was 8 months old. (629 So. 2d at 1296-97).
When the child was two and in day care, the school noted that he was "extremely hyper" and referred his parents to the local board of education. Based on that evaluation, and a finding that his speech development was slow, the school system placed the child in special education at the age of three. (629 So. 2d at 1297). The mother first began to suspect FAS after she read The Broken Cord, and saw the movie of the same name.
Another physician, Dr. Diane Africk, also diagnosed the child as having FAS. "Dr. Africk did not undertake any treatment because none is available." (629 So. 2d at 1297.)
577 N.W. 2d 575, 1998 S.D. 30 (1998)
This opinion contains two detailed and useful descriptions of FAS/FAE.
"Fetal Alcohol Syndrome (FAS) is a pattern of mental and physical defects which develop in some unborn babies when the mother ingests alcohol during pregnancy. Those born with FAS may be seriously handicapped and require a lifetime of special care. Impairments include physical birth defects including mental retardation, growth deficiencies, central nervous system dysfunction, craniofacial abnormalities and behavioral maladjustments. Fetal Alcohol Effect (FAE) is a less severe set of the same symptoms. Experts are not in full agreement on the precise distinctions between FAS and FAE. However, behavioral problems of FAE children can be as severe as those of FAS children. FAS/FAE produces irreversible physical, mental and emotional deficits. Many children with FAS/FAE are not able to understand cause and effect relationships and long-term consequences. In 1991, the Journal of the American Medical Association reported that FAS is the leading known cause of mental retardation. At least 5,000 infants are born each year with FAS, or approximately one of every 750 live births. thirty to forty percent of babies whose mothers drink heavily throughout pregnancy have the syndrome. source: United States Department of Health and Human Services"
577 N.W. 2d at 577 n. 1. It is not correct to say that FAE is a "less severe" version of the FAS symptoms. Some FAS symptoms (by definition) are entirely absent (i.e. certain characteristic facial features), but other primary and secondary disabilities may be the same or worse.
577 N.W. 2d at 577.
Excessiveness and Inequality of Sentencing
Bonner was one of three young men convicted of a minor burglary, involving the theft of some CDs, cash, and two necklaces. The good stolen appear to have been worth less than $100. 577 N.W. 2d at 582. The other defendants (whom, so far as the opinion reflects, did not have FAS) received sentences of a $750 fine and 160 or 180 days in jail with work release. Bonner, who was 19 and pled guilty, was sentenced to 15 years in prison. He had not prior felony record, and only a few lesser misdemeanors. 577 N.W. 2d at 657.
The South Dakota Supreme Court concluded that the sentence was "grossly out of proportion to the severity of the crime." 577 N.W. 2d at 581. It based its decision on the sentences of the co-defendants, the lack of a serious prior record, and the absence of any violence in the crime.
This may be a case in which an FAS/FAE defendant who went along with a crime involving more sophisticated offenders got the heavy sentence, while the other offenders got off fairly easily. That is certainly a pattern seen in other cases.
Limited Mental Capacity
Bonner's attorney argued that the burglary sentence was excessive because of Bonner's "limited intellectual capacity." 577 N.W. 2d at 581. (It is unclear whether the attorney raised only Bonner's low IQ, or whether this is just an infelicitous turn of phrase in the court's opinion). The court explained that such limitations were not usually a defense, but were relevant to culpability and thus to sentencing.
577 N.W. 2d at 581.
Bonner's attorney also objected to the sentence on the ground that Bonner needed treatment that could not be obtained in prison.
577 N.W. 2d at 581. The court did not address this argument.
Bonner also received a 15 year sentence for sexual relations with the 14 year old girl who had persuaded him to come to her hometown for the express purpose of being her boyfriend. In upholding that sentence, the court did not engage in any of the analysis which was used with regard to the burglary sentence. For example, with regard to the burglary sentence, the court stressed that the maximum sentence should be reserved for the most serious combinations of offense and background of the offender. 577 N.W. 2d at 582. But in upholding the maximum sentence possible for the sexual contact charge, the court did not assert that the offense or background were unusually serious, but noted only that "[t]here may be legitimate and compelling reasons . . . why a sentencing court might believe the maximum sentence appropriate." 577 N.W. 2d at 582-83 (Emphasis added).
This appears to be a classic case in which an individual with FAS/FAE repeatedly got in trouble with the law, but too little was done to frame sentences that would provide him with treatment and structure until he got into very serious trouble.
577 N.W. 2d at 577.
577 N.W. 2d at 580-81. This sounds like a decision to impose an exceptionally long sentence precisely because of Bonner's limited capacity, which is precisely the opposite of what the state Supreme Court indicated should be the result of such a limitation.
Bonner had serious difficulties throughout his childhood. He received psychological counseling and was on a regimen of medication to control his behavior. At the age of 17 he finally finished ninth grade, and quit school. He had no significant work experience thereafter.
When Bonner was (apparently) 18, he met a 14 year old girl from another town who told him she was 17. After the girl returned home, she called him every day for a week urging him to come to her town so that they could be boyfriend and girlfriend. "Enraptured, Bonner hastily borrowed money from a friend for a bus ticket," 577 N.W. 2d at 577, and traveled to the girl's town. There he stopped taking his medication, and spent several weeks drinking and partying. During this period he allegedly had sexual intercourse on two occasions with the girl in question.
The police also investigated Bonner with regard to possible sexual contacts with four other girls. There was a rape charge filed with regard to a 13 year old girl, but the only facts in the record consisted of a statement by the girls denying any sexual contact other than a few "hickeys." 577 N.W. 2d at 578.
After Bonner had purchased the bus ticket for the ill fated trip to the girl's hometown, his father attempted to prevent him from leaving.
577 N.W. 2d at 577. So far as appears from the record, nothing was done to alert police in the town to which Bonner was headed. It also appears, despite the three prior minor adult offenses, that Bonner was not on probation and therefore not subject to the control of a probation official in these circumstances.
In sum, when he arrived at the bus terminal, Bonner was a disabled and disturbed young man with a long history of minor offenses who was clearly headed for more serious trouble. When his father attempted to intervene, the police responded by facilitating Bonner's departure--and the offenses that inevitably followed. Although it is unclear how much police knew at the time, the events in this case illustrate how police understanding of FAS/FAE could be important in preventing criminal offenses.
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.
1991 WL 214067 (United States Court of Claims)
This was a lawsuit about a child with organic brain damage. Part of his brain, the corpus callosum, was far smaller than it should be, a condition known as agenesis of the corpus callosum. The child was in the custody of her grandmother. The grandmother asserted that the condition had been caused by the child's DPT vaccination; if that were the cause, the federal government would be liable for the child's injuries.
The Department of Health and Human Services argued that the condition was "probably caused by fetal alcohol exposure." Footnote 5. The mother was a known alcoholic. The case is significant because the government recognized that FAS can cause injury to the corpus callosum.
The court did not decide what had caused the condition.
1997 WL 360676 (Tex. Ct. App.)
The appellate court approves the termination of the father's parental rights with regard to three children, all of whom had FAS. (*4).
The court concluded that one factor militating in favor of termination of parental rights was that the children had "tremendous needs."
A pediatrician who specialized in birth defects
(*4). The mother at various times had used marijuana, cocaine, and methamphetamine. One child had tested positive for drugs (unspecified) at birth.
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.
758 N.E. 2d 981 (Ind. Ct. App. 2001)
Davies pled guilty to murder and several other crimes. We was sentenced to consecutive terms in prison totalling 108 years. He appealed the length of the sentence.
Davies argued that he should have received a shorter sentence because he had FAE. Indiana Law states that one of the mitigating factors at sentencing is whether "the defendant's capacity to appreciate the criminality of the defendant's conduct or to conform that conduct to the requirements of law was substantially impaired as a result of mental disease or defect." 758 N.E. 2d at 988 (Emphasis added).
The sentencing judge recognized that Davies had FAE, but gave that factor only minimal weight in his sentencing decision. The sentencing judge explained that the FAE was
758 N.E. 2d at 983. The report of Davies' expert
Davies' expert witness was a Dr. Paul Guastadisegni, who was described as a "neuropsychologist who frequently works with children suffering from fetal alcohol syndrome and FAE." 758 N.E. 2d at 988 n. 10.
The court of appeals concluded that the sentencing judge did not abuse his discretion in giving only minimal weight to FAE as a mitigator.
263 F. 3d 1070 (9th Cir. 2001)(en banc)
This case grew out of a series of prosecutions, now largely discredited, of adults alleged to have engaged in sexual acts with young children. Devereux, who was one of those prosecuted, brought a civil lawsuit for damages against several of the officials involved.
Devereux asserted among other things that the case against him had been built in part by police officials who knowingly induced unreliable testimony from a minor whom they knew had FAS. Devereux asserted that individuals with FAS can easily be induced to give false testimony. (263 F. 3d at 1078). The majority opinion did not address this argument, since the child in question had ultimately recanted her accusations. The majority upheld the dismissal of the suit.
Judge Kleinfeld, in a separate opinion concurring in part and dissenting in part, quoted from a book about FAS which described the effects of FAS/FAE as including "inappropriate social behavior, memory deficits . . . lack of judgment, lack of remorse for misbehavior, lying . . . unusual aggressiveness, and wide variations in learning abilities at different times." (263 F. 3d at 1087). He would have permitted the case to go to trial, because on his view a jury could infer that at least one or more defendant officials knew they had induced false testimony from a suggestible witness.
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
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.
672 So. 2d at 1358. The court reasoned
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.
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.
851 P. 2d 1361 (Alaska 1993)
The decision erroneously states that FAE "is not as severe" as FAS. (851 P. 2d at 1363).
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.
2004 WL 51814 (Minn. App.)
G.A.R.B., a minor, was charged with second-degree murder. He challenged his "certification as an adult", which meant that G.A.R.B. would be tried as an adult.
In opposing that certification, counsel for G.A.R.B. argued that FAS was a mitigating factor. The appellate court upheld the decision of the district court that no mitigating factors were present. "[W]hile it has been suspected that G.A.R.B. may have been born with FAS, this diagnosis has never been established." 2004 WL 51814 at *2.
160 S.W.3d 24 (Tex. Crim. App. 2004)
In this case, defendant was convicted of capital murder and sentenced to death. On direct appeal, the Court of Criminal Appeals affirmed. The defendant petitioned the United States Supreme Court for a writ of certiorari, pursuing a claim of mental retardation. The Supreme Court vacated decision of Court of Criminal Appeals and remanded for reconsideration.
During the initial punishment phase, some evidence of mental retardation was introduced, including that defendant had always been slower than other children, he could not stack blocks at the age of 5, he was in special education classes through the eighth grade, he could not handle regular classes in ninth grade, and did not advance beyond tenth grade. Testimony was introduced that the defendant plays like an eight-year-old boy and associates with young children, that he can not count change, tell time from a traditional clock, read a menu, use public transportation or engage in various other daily activities, nor could he follow multi-step instructions. It was testified that the defendant did know how to use a phone, operate a microwave, load and unload a dishwasher, brush his teeth, use a pencil, read, and that he did pass the written driver's license test. It was noted by one witness that mathematics were largely beyond his ability but that he did have expressive verbal skills. A number of psychologists testified for the defendant, indicating IQ scores which varied from 51 to 84, depending on the test administered. One doctor concluded that defendant possessed adaptive behavior deficits in seven different areas: (1) independent functioning (eating, dressing, and transportation), (2) economic activity (handling money), (3) language development, (4) self-direction (excessive passivity), (5) socialization (ability to interact with others), (6) social engagement, and (7) functional academics. Another psychologist stated that appellant's physical appearance was typical of FAS or FAE. (She also stated that defendant exhibited characteristics that resembled other genetic disorders such as XXY, Kleinfelter Syndrome, YYX, Extra Y Chromosome, or Fragile X Syndrome.)
Rebuttal testimony was offered by the state to the effect that the defendant had "pretty average" adaptive skills and acted "pretty normally," and that his IQ was right around 70. The state's witnesses on the issue of Hall's mental retardation included many lay witnesses, including teachers, co-workers and corrections officers.
The appellate court concluded that the lower courts conclusion that Hall was not mentally retarded was supported by the record and therefore affirmed.
A dissenting opinion criticizes the lower court's reliance on lay testimony in determining whether Hall was mentally retarded. The dissent notes, "Lay persons often have unrealistic ideas about what mentally retarded persons look like and how they act. There is a wide range of abilities encompassed by the term 'mentally retarded'..." The dissent also observes: "Persons with limited mental ability often do extremely well in structured environments, and I cannot think of a more structured environment than death row." (These comments by the dissent are particularly apropos in the case of many persons with FAS).
913 F. 2d 606 (9th Cir. 1990)
In 1979 Harris was convicted of murder and sentenced to death. In 1990 he filed a federal habeas corpus action seeking to overturn that sentence.
At the original 1979 trial Harris' attorney did not raise any issues regarding FAS, and was evidently unaware that Harris might have FAS. Harris' trial attorney retained two psychiatrists to go over the case, but neither of them raised the possibility that Harris might have FAS. In the 1990 federal habeas corpus action, Harris offered diagnoses from three different physicians, all of whom agreed that Harris had FAS.
(2) The majority held that Harris did not have "new evidence", since the information suggesting he had FAS was available at the time of the 1979 trial. (913 F. 2d at 626-27). [That, of course, was the evidence the earlier psychiatrists did not recognize as showing that Harris might have FAS].
(3) The majority also concluded that it was unlikely the jury's verdict would have been different if the jury had known that Harris had FAS. 913 F. 2d at 627.
A dissenting opinion by Judge Noonan urged that Harris should have been afforded a hearing on his claims. Noonan argued that with the assistance of more competent experts, who had identified FAS as the likely diagnosis, Harris' attorney in 1979 might have been able to convince the jury that the prosecution's diagnosis of Harris was inaccurate.
This case appears to illustrate several important problems.
First, the medical experts retained for the 1979 trial were both psychiatrists. There is no distinct category for FAS/FAE in the Diagnostic and Statistical Manual of Mental Disorders (DSM) on which psychiatrists generally rely. Some Canadian judges do not regard psychiatrists as competent to diagnose whether a defendant has FAS. Thus, although two of the three experts who in 1990 diagnosed Harris with FAS were psychiatrists, it is possible that the reason this diagnosis was missed in 1979 was that Harris' attorney had consulted the wrong type of medical expert. Unless a defense attorney both can recognize symptoms of possible FAS, and understands what type of expert to retain to evaluate that problem, an FAS diagnosis and defense (or mitigation factor) may well be overlooked.
Second, the key prosecution witness at the sentencing hearing, also a psychiatrist, diagnosed Harris as having "antisocial personality No. 304.8", relying on the second edition of the DSM. The prosecution psychiatrist testified that there were eleven characteristics of such a "sociopath." That list, quoted below, includes many classic symptoms (underlined) of FAS. the witness stated that
1998 WL 764142 (Conn. Super.)
This was an action to terminate the paternal rights of Stacie M. in her son Jonathan. The mother had FAS; the court relied on her difficulties in deciding to terminate her rights.
The opinion contains a detailed description of the effect of FAS on children:
1998 WL 764142 at *2. The quotations are from Wiley Karr-Morse, Ghosts from the Nursery (1997).
The mother's behavioral problems are described in this opinion and in In re Dalilah Rose N., 1996 WL 745838 (Ct. Super.).
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.
146 Misc. 2d 1, 146 Misc. 2d 1 (Family Ct. N.Y. Cty. 1989)
Natasha was born with FAS. The court holds that the mother is guilty of neglect, even though the mother has never had custody of the child. Natasha was born with severe medical problems, and at all times was in the Neonatal Intensive Care Unit of the hospital. Her mother continued to drink, and the court concluded the mother would be unable to deal safely with the child's precarious physical condition.
The plaintiff agency (unidentified) offered expert testimony that FAS can be caused "either by episodic binge drinking or the regular intake of 2 or 3 ounces of alcohol per day." 146 Misc. 2d at 3. The mother testified she drank 4 ounces every other day while pregnant. 146 Misc. 2d at 6. [Is this 2, 3 or 4 ounces of beer, or whiskey, or the net ounces of pure alcohol in the drinks? The opinion is unclear.]
The mother had been warned that drinking might harm the baby and her own liver; her response was to cut down rather than to totally stop drinking. She explained: "I tried to stop drinking alcohol completely and it couldn't be done . . . . Because its hard . . . . Hard to stop drinking just like that." 146 Misc. 2d at 7.
The court reasoned that because of the severity of the child's medical condition, the child would be in danger if the mother drank. It then concluded that the fact she drank during the pregnancy was evidence she would do so later.
146 Misc. 2d at 7. This assumption of continuity of alcohol use seems inconsistent with Morris v. Dept. of Social and Health Services, 2003 WL 220958 (Wash. App. Div. 1) and with some cases regarding ineffectiveness of counsel, which assert that knowledge that a mother drank (even excessively) at some point in her life is not sufficient to give counsel reason to believe she might have drunk during her pregnancy.
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.
54 P. 2d 556 (Okl. Crim. App. 2002)
Murphy was convicted of murder and sentenced to death. He urged in this post-conviction proceeding, among other things, that he had been denied the effective assistance of counsel because his trial attorney failed to develop and offer evidence that Murphy had FAS/FAE.
The court held that any such failure by the trial attorney was not serious enough to constitute ineffective assistance under the standard set in Williams v. Taylor, 529 U.S. 362 (2000).
54 P. 2d at 564. The court declined even to conduct an evidentiary hearing on the ineffectiveness claim, holding both (1) that the actions of the trial attorney did not fall below "professional norms" and (2) that there was not a "reasonable probability" that the outcome would have been different if evidence of FAS (and other mitigating evidence) had been introduced. The second assertion, common in FAS ineffectiveness claims, was (as usual) unexplained.
The court's analysis of the sufficiency of the trial attorney's actions appears to rest at least in part on a misunderstanding of the relevant science. (1) Murphy's birth mother assertedly told the attorney she only drank two beers a day; the court seems to have assumed, incorrectly, that this was too little alcohol consumption to cause any harm. 54 P. 2d at 565 n. 8. See also id. (Mother told attorney her drinking during the pregnancy was "minimal"). (2) The attorney talked with a physician and they noted the "absence of any visible characteristics of Fetal Alcohol Syndrome." 54 P. 2d at 565 n. 8. But that would not rule out FAE; if they meant only that those characteristics were not present when Murphy was an adult, their absence would not even rule out FAS. (3) The attorney stated that family members "never contradicted" the mother's assertion that her drinking was "minimal"; it is unclear whether the attorney asked the family members, or whether the family members knew what the mother had said.
Later the mother's sister described the mother as an alcoholic during the pregnancy. This case highlights the risk in relying solely on the birth mother for information about whether or not she drank during the pregnancy.
A neurologist hired for purposes of the post-conviction proceedings concluded that Murphy had FAS/FAE. The court dismissed this diagnosis on the ground that the neurologist "apparently" relied solely on the conflicting evidence about how much the mother drank. 54 P. 2d at 564 n. 8. This aspect of the opinion highlights the importance of making clear what information an expert relied on in making a diagnosis.
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.]
554 N.E. 2d 40, 28 Mass. App. Ct. 620 (Appeals Ct. 1990)
The appellate court affirmed a decision dispensing with the mother's consent to Oliver's adoption. This will permit the child's foster parents to adopt Oliver without the mother's agreement.
In reaching this conclusion, the court relied primarily on the special needs of a child, like Oliver, with FAS. The court also gave some weight to the mother's continued use of alcohol.
The description of the facts on which the diagnosis was based included the following:
(554 N.E. 2d at 43.)
The court described Oliver's special needs in the following passage:
(554 N.E. 2d at 43).
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.
13 Cal. 4th 313, 914 P. 2d 846, 52 Cal. Rptr. 2d 296 (1996)
Ray was convicted of murder and sentenced to death. At the sentencing hearing Ray offered testimony by a Dr. Samuel Benson, a psychiatrist specializing in psychopharmacology. Benson tested Ray's brain functioning with an EEG and a CAT scan. Based on the results, and unspecified information obtained from interviews and school and medical records, Benson concluded that Ray had a number of different conditions, including FAS. Benson said the overall diagnosis was "organic personality syndrome." 13 Cal. 4th at 332.
This diagnosis played no role in the issues on appeal. It is not clear how the prosecution responded to this evidence.
 Y.J. No. 57 (Yukon Territorial Court)
Full text available on Westlaw, 1999 Carswell Yukon 99  Y.J. 57.
Par. 4. During the seven years that followed T.J. was for a time confined to juvenile institutions, and then returned to the custody of his adoptive mother. There were no further complaints of sexual misbehavior.
Also, see paragraph 12 quoted below.
Symptoms of FAS/FAE
10--. . . FAS is the leading cause of mental retardation in North America . . . . [T]he intellectual impairment is not a matter of developmental delay but reflective of the underlying, permanent brain damage suffered by the FAS patient while in utero.
11--Accompanying the mental deficits is a variety of behavioural and developmental deficiencies. The cognitive processes that most people use to regulate their conduct and to adapt to their social environment are located primarily in the anterior frontal lobe of the brain. The effect of alcohol on the fetal brain is such that this region does not develop sufficiently to allow the FAS individual to appropriately control his or her actions. As such, FAS patients tend to be impulsive, uninhibited, and fearless. They often display poor judgment and are easily distracted. Difficulties in perceiving social cues and a lack of sensitive often cause interpersonal problems.
12--FAS patients have difficulties linking events with their resulting consequences. These consequences include both the physical, e.g. getting burned by a hot stove, and the punitive, e.g. being sent to jail for committing a crime. Because of this, it is difficult for these individuals to learn from their mistakes. Lacking sufficient cognizance of the threat or fear of consequences, the FAS patient is less likely to control his or her impulsive behaviour. Similarly, FAS individuals have trouble comprehending that their behavior can affect others. As such, they are unlikely to show true remorse or to take responsibility for their actions. . . .
14--FAS patients tend to come from unstable family situations. Nearly one-third of FAS children never live with their biological mothers. They are either given up for adoption at birth or abandoned at the hospital. A recent study showed that, on average, an FAS child will have five different principal residences. . . .
16--By the time the FAS child reaches adolescence, school has become a significant source of frustration. The inability to master basic skills in earlier grades makes the ordinary tasks required at the high school level essentially impossible for FAS youth. This, coupled with the on-going issues of social maladaptation and lack of recognition of consequences, makes for an inhospitable learning situation predicated largely on failure. A recent study found that 60% of FAS youth are suspended from, expelled from, or dropped out of school. . . .
17--Troubles at school tend to diminish the FAS youth's self esteem and to alienate him or her from the main peer group. The highly social FAS youth is then prone to seek out friendship and acceptance with 'the wrong crowd.' . . .
18--Individuals with FAS experience high rates of offending. One study showed that 61% of FAS adolescents had run afoul of the law at least once. Most frequently, this involves shoplifting and theft. A recent study in Saskatchewan estimates that as many half the young offenders appearing in provincial court suffer from FAS. the study found that FAS offenders were rarely motivated by malice but were more likely to have been exploited by smarter, more savvy criminals. Ironically, FAS offenders tend to make model prisoners because they respond well to the structure environment. . . .
19--As adults, a significant number of those patients with severe FAS will never be able to live independently or obtain gainful employment. Those who possess sufficient skills to obtain employment are at greater risk of termination for unacceptable job performance, inattention to detail, and/or absenteeism. . . .
20--FAS children are very demanding and needy in their school environments and, as mentioned earlier, this tends to result in school suspension and expulsion. Within the child welfare system, FAS children utilize a disproportionate share of resources and are often shuffled over to the Young Offenders system. As adults they often end up living on the street or in jail due to a dea[r]th of homes which provide semi-independent living."
Paragraph 9 is incorrect in one detail. FAS is not at the more severe end of the disabilities caused by maternal use of alcohol; rather, FAS is associated with affected individuals who have certain facial abnormalities. Among the entire population with FAS or FAE, the cognitive impairments among those with FAS is not significantly higher than among those with FAE.
201 F.R.D. 16 (2001)
This is a lawsuit brought by the parents of a child who suffered from a number of different conditions, including FAS and Attention Deficit Hyperactivity Disorder. The suit asserted that Maine state officials had failed to provide certain benefits under the Early and Periodic Screening, Diagnosis and Treatment provision of the federal Medicaid Act. Those benefits include screening, case management and in-home mental health services.
The decision certified the case as a class action. No decision was made on the merits of the dispute
125 F. Supp. 2d 1138 (S.D. Iowa 2001)
This case sought benefits for a child under the Supplemental Security Income (SSI) provisions of the Social Security Act. The benefits were sought in 1996, when the child was 9. The Social Security Administration denied SSI benefits, but the federal court awarded them.
The child apparently had a classic case of FAS. The diagnosis included "several dysmorphic features, including narrow bifrontal diameter grossly, nail hypoplasia, narrow palpebral fissure, ptosis, thin upper lip, flat mid-face, smooth filtrum, short nose, and unruly scalp hair." 125 F. Supp. at 1142.
The child was also diagnosed with attention deficit hyperactivity disorder. Although he had a normal IQ (104), his reading level was extremely poor. While an average student of the child's grade level could read 100 correct words per minute, the child read only 43 words a minute with 7 errors. Atypically, he was doing math at grade level.
The court concluded the child was disabled within the meaning of the SSI statute because there was a marked degree of disability in two areas, "attending and completing tasks" and "interacting and relating with others." 125 F. Supp. at 1147-48.
2003 WL 231302 (Cal. App. 3 Dist.)
In this proceeding to terminate the parental rights of the father of several children, the court noted that most of the children had symptoms of FAS, "including broad foreheads, eyes set far apart, developmental delays, and the children were small for their ages." 2003 WL 231302 at *1.
A social worker involved in the case concluded that the FAS symptoms would might make it more difficult to locate an adoptive home. 2003 WL at *6. However, subsequently two of the children were placed in a prospective adoptive home.
798 N.E. 2d 867 (Ind. Ct. App. 2003)
The court's findings of fact included the following:
798 N.E. 2d at 870.