Court Cases on Sentencing
13 Cal. 4th 92, 913 P. 2d 980, 51 Cal. Rptr. 7770 (1996)
Arias was convicted of murder and the jury sentenced him to death. He moved to modify that sentence, and pointed to a number of mitigating factors, including "possible fetal alcohol syndrome." The trial court denied the motion on the ground that the aggravating circumstances of the crime "far outweigh any mitigating circumstances." 913 P. 2d at 1043.
On appeal the California Supreme Court held that the trial judge, in resolving that motion, was not required to discuss the specifics of the mitigating evidence.
172 Misc. 2d 25, 656 N.Y.S. 2d 162 (1997)
Bell was convicted of a number of crimes, including first degree murder. Following an evidentiary hearing about his background, the trial judge wrote this opinion describing the mitigating factors. The actual sentence imposed is not disclosed in the opinion.
The opinion notes that the information that had been adduced at the sentencing hearing was "significantly more and in greater detail than would ordinarily be available to the sentencing judge." 656 N.Y.S. 2d at 164-65.
A psychologist gave Bell some 14 separate tests to measure his abilities and to determine if he had any neuropsychological impairments. The psychologist concluded that Bell had organic brain damage, probably as a result of FAS, "given his mother's history of alcohol use." The psychologist concluded that that damage, combined with Bell's low intelligence, meant that Bell as "not able to relate appropriately within the norms of society." 656 N.Y.S. 2d at 165.
No. M2004-01345-CCA-R3-PD, slip op., 2005 WL 2662577 (Tenn. Crim. App. 2005)
Black was convicted of three counts of first degree murder and the jury sentenced him to death. On appeal, argued that he was ineligible for the death penalty due to mental retardation, under Atkins v. Virginia, 536 U.S. 304 (2002). Black's experts testified that his mental retardation was largely due to prenatal exposure to alcohol, but may have had other causes, as well, including lead exposure and head trauma from football injuries. The conclusions of the experts were based in part on brain imaging, including MRI and PET scans.
Tennessee law defines mental retardation by the presence of three factors: (1) sub-average intellectual functioning, evidenced by and IQ of 70 or below, (2) deficits in adaptive behavior, and (3) manifestation of the mental retardation by the age of 18.
Based on the evidence presented (including the fact that IQ tests administered to Black prior to the age of 18 all resulted in scores above 70; his score declined in later years), the court concluded that Black did not meet the third prong of Tennessee's definition of mental retardation.
As regards Black's prenatal exposure to alcohol, his sister testified that their mother drank alcohol during pregnancy, but the court noted that she "did not...testify as to the amount her mother drank while she was pregnant" (perhaps reflecting a mistaken impression that a certain level of alcohol exposure is required to result in damage or diagnosis). The court further noted that "it cannot be determined with certainty that the ingestion of alcohol during pregnancy will cause mental retardation." (It is not clear whether, if the court were convinced that Black's mental retardation was a result of his prenatal exposure to alcohol, that would have affected its conclusion as to whether his mental retardation manifested before he reached the age of 18.)
The court's opinion was based strictly on the state's statutory definition of mental retardation, and does not indicate whether FAS was otherwise presented as a mitigating factor during sentencing.
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).
Prior Record
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.
Police Practices
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.
Expert Witnesses
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
Sentencing
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.
659 N.E. 2d 671 (Ind. Ct. App. 1996)
Brown was convicted of two murders, and sentenced to 50 years in prison on each. On appeal he argued that the trial judge had failed to consider his FAS as a mitigating factor. 659 N.E. 2d at 674.
The sentencing judge did expressly consider eleven mitigating factors. The appellate court described one of those as being the fact that "Brown had a significant history of psychiatric referrals and diagnoses due to his behavioral problems." (659 N.E. 2d at 675). It is unclear whether this was a general mitigating factor that would have included FAS, or whether the sentencing judge did not expressly consider the FAS issue. If the latter, then it is unclear whether the appellate court did not recognize that that issue had been ignored, or merely felt that the judge's decision was otherwise so thorough that it should not be reversed merely because the opinion did not expressly mention a twelfth mitigating factor.
71 F. 3d 1502 (10th Cir. 1995)
Castro was convicted in state court of murder, and sentenced to death. He brought a federal habeas corpus action seeking to overturn his sentence.
The court of appeals held that the defendant was entitled to the assistance of a court-appointed and paid for medical expert. Castro argued that he needed such assistance to develop evidence regarding five different problems, one of which was fetal alcohol syndrome or fetal alcohol effect. (71 F. 2d at 1510). The specific type of expert he sought was a psychiatrist. (A psychiatrist undoubtedly would have been better qualified to evaluate several of Castro's other problems than to evaluate possible FAS/FAE).
The court concluded that a criminal defendant was entitled to such experts provided that he had made a substantial showing that his mental state was in dispute and was relevant to the outcome of the case, either to the guilt determination or to the sentence. (71 F. 3d at 1513-14). Although one medical expert had been appointed, the court concluded he was probably not qualified to assess the medical issues in the case. (71 F. 3d at 1515).
The court concluded that more complete information about Castro's mental health might have persuaded the jury to vote against the death penalty. (71 F. 3d at 1516).
52 F. 3d 335, 1995 WL 230349 (9th Cir.)
Charles was convicted of being a felon in possession of a firearm, and was sentenced to 100 months in prison. The conviction was based on the fact that he pawned a rifle at a pawn shop for $150.
Charles offered somewhat equivocal evidence regarding FAS/FAE. A psychological report for the defendant concluded "I do not think that he actually suffers from a fetal alcohol syndrome. However, fetal alcohol effect could contribute to the patient's verbal memory deficits." 1995 WL 230349 *2. The report stated that Charles "may not have had the capacity to . . . understand that possession of the rifle under these circumstances was not acceptable." Charles stated that he had pawned an unloaded firearm solely to obtain money for his family. This may be a case in which an individual with FAS/FAE got in very serious trouble because he did not understand the conditions to which he was subject after his release from prison.
The trial judge relied in part on this in imposing a sentence at the low end of the Guidelines range, but declined to exercise his discretion for a (greater) "downward departure" from the Guidelines. The resulting sentence was still severe, and quite inappropriate if Charles in fact lacked the capacity to understand that he was violating the law. The court of appeals held that such an exercise of discretion was not reviewable on appeal.
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.
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.
No. A-7140, 1999 WL 34002415 (Alaska Ct. App. 1999).
Following a plea agreement, Denny pled no contest to second-degree sexual assault, second-degree sexual abuse of a minor and furnishing liquor to a minor. Denny faced a presumptive sentence of 4 years imprisonment, which the judge increased to 6 years based on various statutory aggravating factors. Denny appealed, arguing that the sentencing judge inappropriately applied the aggravating factors and did not address his cognitive disabilities and probable FAE. The Court upheld the sentence. In a concurring opinion, one of the judges states that the record shows that the sentencing judge explicitly considered Denny's cognitive disabilities and concluded that Denny's actions were not to be excused by such disabilities, and that such cognitive disabilities may be one of the reasons why Denny failed to rehabilitate after his last interaction with the criminal justice system.
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.
91 F. 3d 160, 1996 WL 400220 (10th Cir.)
Dutchie was convicted in federal court of murder for stabbing his seventy-year old grandmother, apparently because she was teasing him. He was sentenced to a term of imprisonment. He appealed the length of the sentence.
Although an increased sentence was warranted under the federal Sentencing Guidelines, the trial judge decided because Dutchie had FAS not to impose that increased sentence. 1996 WL 400220 at *3.
On the other hand, the trial judge also refused to reduce the sentence because of FAS. The court of appeals held that it had no jurisdiction to review that decision. The appellate court did hold, however, that a federal trial judge would have discretion to impose a lower sentence because the defendant had FAS. 1996 WL at *3.
879 P. 2d 363 (Alaska 1994)
E.T., age 14, committed a number of offenses. Two psychologists who evaluated E.T. concluded that he had the symptoms of FAS or FAE. The state brought a juvenile proceeding against E.T., and the trial court committed him to the custody of the state Department of Health and Social Services. That order permitted the Department to place him outside the parental home. Although E.T.'s family was in Nome, the Department intended to send him to a facility in Fairbanks.
The decision to send E.T. to Fairbanks was explained as follows:
879 P. 2d at 364. There was in Nome some sort of treatment program for individuals with FAS, but it had 200 people on the waiting list. The Department wanted to send E.T. to "Hospitality House" in Fairbanks, which had had good success in dealing with FAS juveniles.
The Children's Master (a hearing officer) who heard the evidence "was convinced that E.T.'s disposition had to include treatment for his FAS symptoms." He explained to E.T., "I think you need the structure, I think you need the counseling, I think you need the setting to get you straightened out." 879 P. 2d at 365. The trial judge agreed to allow the Department to send E.T. to Fairbanks, but provided that he could only be placed in a "non-institutional" setting. 879 P. 2d at 364. The appellate court upheld the decision to send E.T. to Fairbanks, explaining that it was needed to assure "adequate evaluation, treatment, and supervision." 879 P. 2d at 365.
This decision provides important support for the argument that offenders with FAS/FAE should be sentenced to facilities or programs that know how to evaluate and deal with FAS/FAE.
69 P. 2d 676 (Nev. 2003)
Haberstroh was convicted of murder and sentenced to death. The Nevada Supreme Court held that one of the jury instructions--regarded what constituted an aggravating factor--was improper.
The critical question was whether that argument was prejudicial--whether the result might be different if the defendant were remanded for a new sentencing hearing.
The court held the error was prejudicial. It observed that, if the defendant were resentenced, his attorney could offer mitigating evidence. 69 P. 2d at 684. Haberstroh's original trial attorney had failed to offer any such evidence. The court noted that the mitigating evidence which had not been offered at the original sentencing hearing, but which presumably would be offered at a new hearing, included
69 P. 3d at 683 n. 22. Haberstroh had complained that he had been denied the effective assistance of counsel when his original attorney did not offer that evidence; the appellate court did not resolve that issue.
This case is important because it recognizes the substantial possible impact of FAS at sentencing, and provides support for an argument that the failure to develop such evidence would be prejudicial.
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).
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.
102 S.W. 2d 535 (Mo. 2003)
Under Atkins v. Virginia, 536 U.S. 304 (2002), it is unconstitutional to impose the death penalty on a mentally retarded defendant.
Tests of Johnson's IQ had led to varying results, as high as 83 (70-80 is borderline mentally retarded) and as low as 63 (mild mental retardation). The state Supreme Court held that reasonable minds could differ as to whether Johnson was mentally retarded, and remanded the case for a hearing.
The court relied heavily on evidence that Johnson had "defective adaptive skills, such as communication, self-care, social life, social and interpersonal development, self direction, and use of community resources." 102 S.W. 2d at 541. He "had deficient self-care skills in that he could not live alone and never had" and "had poor awareness of social mores." 102 S.W. 2d at 538-39.
Another expert apparently concluded that Johnson suffered from FAS. 102 S.W. 2d at 539. [Johnson's behavioral problems seem to be classic secondary disabilities of FAS.]
In relying on deficient adaptive skills as important evidence of mental retardation, the Missouri Supreme Court relied heavily on the Missouri statute which defined mental retardation. 102 S.W. 2d at 540. However, footnote 3 in the Supreme Court decision in Atkins defines mental retardation in similar terms.
[This decision may be significant in capital punishment litigation. The application of Atkins apparently is not limited to defendants whose cases were on direct appeal, or whose trials were after, the date Atkins was decided. Individuals with FAS typically function at a level lower than others with the same IQ. Thus in evaluating whether Atkins precludes execution of a particular defendant, it will often be important to determine if the defendant has FAS.]
22 S.W. 2d 183 (Mo. 2000)
Johnson was convicted of murder and sentenced to death. Johnson offered some evidence related to FAE, but it was not sufficient to persuade the jury to vote for life imprisonment.
The relevant portion of the opinion states:
22 S.W. 2d at 193. It appears that in the appellate court Johnson was arguing only that the death penalty was inappropriate because of his limited intelligence. It is unclear whether at trial the defendant urged that FAE as such was a mitigating factor, or only relevant as a possible method of proving limited intelligence.
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.
349 N.C. 118, 505 S.E. 2d 277 (N.C. 1998)
Locklear was convicted of murder and sentenced to death. Locklear offered evidence of 21 different possible mitigating factors, including evidence that he had FAS. 505 S.E. 2d at 286. No juror found the existence of any mitigating factor at all. 505 S.E. 2d at 285.
It is not clear whether the jury did not believe that Locklear had FAS, or concluded that that disability did not constitute a mitigating factor.
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.
1995 WL 562253 (Del. Super.)
Morris, then age 23, was convicted of sexually abusing an 11 year old girl and an 8 year old boy.
In imposing a lengthy sentence, the court expressed concern that he would be a "sexual predator" when he was released from custody. The court denied a motion to reduce the sentence, explaining that the motion "does not begin to address Defendant's life-long problems. Nor does it provide a plan for Defendant's future, commensurate with the level of his problems and the risk he poses to the community." 1995 WL 562253 at *1. This appears to suggest that the court would have been willing to consider a shorter period of imprisonment if the defense had proposed some plan for treatment and effective monitoring.
The court also expressed concern about the failure of the state to help Morris earlier in his life.
1995 WL 562253 at *1.
This case appears to illustrate how a state's failure to deal with the problems of FAS in childhood can cause serious harms once the individual reaches adulthood.
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.
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.
[1999] Y.J. No. 57 (Yukon Territorial Court)
Full text available on Westlaw, 1999 Carswell Yukon 99 [1999] Y.J. 57.
Sexual Offenses
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.
Sentencing
Also, see paragraph 12 quoted below.
Symptoms of FAS/FAE
"9--Modern science has generally accepted the proposition that alcohol is a toxic substance that can permanently disable a fetus who is exposed to it while in utero. Fetal Alcohol syndrome is the diagnosis given to those patients who suffer at the severe end of a continuum of disabilities caused by maternal alcohol use during pregnancy. Three types of characteristics are manifested by individuals with FAS: 1) general growth deficiencies; 2) structural abnormalities, primarily facial; and 3) central nervous system abnormalities or dysfunction. This last category includes mental retardation, leaning disabilities, motor skills impairment, seizures and attention deficit disorder which may or may not be accompanied by hyperactivity. . . .
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.
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.
19 Cal. 4th 481, 79 Cal. Rptr. 487 (1999)
Roybal was convicted of murder and sentenced to death.
California law provides that in a capital case it is a mitigating factor if the crime was committed while the defendant "was under the influence of extreme mental or emotional disturbance." Cal. Penal Code section 190.3(d).
The trial judge instructed the jury that "The phrase 'mental or emotional disturbance' includes fetal alcohol syndrome . . . ." 79 Cal. Rptr. 513. The judge later instructed the jury that a mental or emotional disturbance was only a mitigating factor under subsection (d) if it was "extreme." The California Supreme Court upheld that instruction. In doing so it stressed that even a non extreme disturbance was also a mitigating factor under subsection (k) of the same provision. 19 Cal. Rptr. at 523-24.
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.
168 N.J. 20, 773 A. 2d 18 (2001)
161 N.J. 515, 737 A. 2d 55 (1999)
Timmendequas was convicted of murder, sexual assault and kidnapping involving a young girl in 1994. He had previously been convicted of two sexual assaults in 1982.
The defendant offered evidence that he suffered from Fetal Alcohol Effects. 737 A. 2d at 71. Four jurors found that FAE was a mitigating factor. 737 A. 2d at 73. But all jurors concluded that the aggravating factors of the case outweighed this and all other mitigating factors. 737 A. 2d at 73.
222 Mich. App. 160, 564 N.W. 2d 903 (Ct. App. 1997)
W. pled nolo contendere to several counts of unlawful sexual contact with a child.
The sentencing judge was aware that W. had FAS. At the initial sentencing hearing, W.'s defense counsel had and referred to several psychological examinations, but evidently did not actually provide the court with copies of at least some of them. The judge initially sentenced W. to 2-15 years in prison.
Thirteen days later, W.'s attorney filed a motion to alter the sentence, and this time attached the psychologist reports that had not been provided earlier. Two weeks later the trial judge granted the motion, and reduced the sentence to 90 days in jail and 5 years of probation. the judge ordered that W. spend 150 days on the "tether program" and undergo outpatient therapy. 222 Mich. App. at 182-83.
The prosecution appealed. The appellate court held that under Michigan law the trial judge had no authority to modify his original 2-15 year sentence.
This case is important, not because of this legal issue, but because it illustrates the impact at sentencing of a more detailed exposition of the significance of FAS/FAE. The trial judge concluded that that exposition warranted a far lower sentence; the appellate court did not disagree, but held only that the trial judge could not change his mind after he handed down the first sentence.
The dissenting opinion in the appellate court quoted extensively from the materials that persuaded the trial judge to impose the lower sentence (later overturned solely on procedural grounds).
The materials on which the trial judge relied in reducing the sentence included in particular an affidavit from Dr. Ann Streissguth. That affidavit identified several distinct reasons why imprisonment was an inappropriate sentence.
(2) "Rehabilitation will be virtually impossible because if therapy is available at all, it would most likely be cognitive-type group therapy. This would almost certainly have little positive impact on Mr. W. and could actually be counterproductive. For an FAS individual, traditional group therapy generally causes additional confusion in a setting which will already be virtually impossible for him to function in." 564 N.W. 2d at 912.
(3) "Persons with FAS become targets for mental, physical, and sexual victimization within the prison population." 564 N.W. 2d at 912.
(4) Despite the FAS, "[W. has] achieved nearly unprecedented life goals such as his regular job as a dishwasher, no previous court intervention, and no observable secondary psychological problems. . . . If he survives prison, . . . the qualities which have caused him to be an example of how well FAS children can function if raised in a structured and affectionate environment, will be lost or severely minimized." 564 N.W. 2d at 912.
(5) "[I]t is very likely that he will learn and internalize deviant sexual behaviors in the prison setting. Incarcerating Mr. W. makes it much more probable that he will be a repeat sex offender than placing him back into his parents' home." 564 N.W. 2d at 912.
Sexual Offenses
There was a sharp disagreement between state probation officials about the appropriate sentence. The probation officer who actually interviewed W. recommended no prison time at all. Another more senior officer urged a sentence of 3 1/2 years, insisting that W. was a pedophile. 564 N.W. 2d at 911.
Two experts disagreed with that characterization. Dr. Streissguth concluded that the "clinical diagnosis of pedophilia is not likely to be supportable in [W.'s] case, given his level and mode of intellectual functioning." 564 N.W. 2d at 912.
Dr. Steven Miller concluded that W. did not have "sufficient emotional maturity and mental ability to be diagnosed as a pedophile." 564 N.W. 2d at 913. Both Streissguth and Miller concluded that the particular type of activity for which W. had been convicted did not support a diagnosis of pedophilia. 564 N.W. 2d at 912-13; see 564 N.W. 2d at 904-05 and n. 1 (describing conduct).
Premeditation
Dr. Miller concluded that "the organic brain damage caused by Fetal Alcohol syndrome excludes the possibility of . . . premeditation and planning." 564 N.W. 2d at 182. This would be important in a case in which an individual with FAS/FAE was charged with a crime in which premeditation was an element.
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.
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.
