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EXPERTISE YOU NEED TO DEFEND A CAPITAL CASE IN 2010 3 rd Interdisciplinary Program UW School of Law & Washington Death Penalty Assistance Center William.

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Presentation on theme: "EXPERTISE YOU NEED TO DEFEND A CAPITAL CASE IN 2010 3 rd Interdisciplinary Program UW School of Law & Washington Death Penalty Assistance Center William."— Presentation transcript:

1 EXPERTISE YOU NEED TO DEFEND A CAPITAL CASE IN 2010 3 rd Interdisciplinary Program UW School of Law & Washington Death Penalty Assistance Center William H. Gates Hall University of Washington School of Law Seattle, WA Saturday, February 6, 2010 8:30 a.m. - 4:15 p.m.

2 FETAL ALCOHOL SYNDROME: PRACTICAL TOOLS www.FASDExperts.com : Natalie Novick Brown, PhD – Program Director Richard Adler, MD – Medical Director Paul Connor, PhD – Neuropsychology Director Judge Anthony Wartnik, JD – Legal Director 10:40 a.m. – 12:10 p.m.

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5 Sir Isaac Newton If I have seen farther it is by standing on the shoulder of giants.

6 FASD

7 PREVALENCE Why Is FASD Relevant in a Forensic Context? Secondary Disabilities 100 90 80 70 60 50 40 30 20 10 Ages 6-51 (n=408-415) Ages 21-51 (n=89-90) % Mental Health Problems Disrupted School Experience Trouble With the Law Confinement Inappropriate Sexual Behavior Alcohol & Drug Problems Dependent Living Problems with Employment Ages 6 - 51 Ages 21 - 51

8 PREVALENCE Why Is FASD Relevant in a Forensic Context? Secondary Disabilities 100 90 80 70 60 50 40 30 20 10 Ages 6-51 (n=408-415) Ages 21-51 (n=89-90) % Mental Health Problems Disrupted School Experience Trouble With the Law Confinement Inappropriate Sexual Behavior Alcohol & Drug Problems Dependent Living Problems with Employment Ages 6 - 51 Ages 21 - 51

9 RED FLAGS FOR FASD

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11 TYPICAL FEATURES AT INTERVIEW WITH CLIENT

12 TYPICAL FASD-LIKE FEATURES AT INTERVIEW WITH CLIENT Short stature (not always) Immature and naive Eager to please or stubbornly resists the obvious Cant provide coherent, detailed narrative Cant concentrate Doesnt add much Doesnt seem to remember what you tell him from appointment to appointment

13 TYPICAL FEATURES OF INSTANT OFFENSE

14 TYPICAL FASD-LIKE FEATURES OF INSTANT OFFENSE Illogical actions with high risk of detection Simple plan (focus is only on the objective) No exit strategy Impulsive, aggressive actions with unforeseen events (fight or flight) More sophisticated, experienced co- defendants

15 TYPICAL FASD-LIKE FEATURES FOLLOWING ARREST Immediately or easily waives rights Guileless confessions that most offenders would never make Over confesses (to anything and everything) Behavioral regression during confession (e.g., becomes tearful) Emotionally detached (e.g., fails to see seriousness of crime)

16 TYPICAL FASD-LIKE PRIOR LEGAL HISTORY Easily led by more sophisticated peers Multiple low-grade offenses in teen years, often with co-defendants Lots of stealing Offenses dont make sense (e.g., stealing something of little value) Oblivious to risk Impulsive, opportunistic crimes Probation violations

17 LIFE HISTORY

18 TYPICAL FASD-LIKE LIFE HISTORY Mom abuses alcohol/drugs Involvement with child welfare Adoption / foster or relative placements / juvenile commitments Special Education / learning disabilities Multiple diagnoses in childhood (espec. ADD/ADHD) Rule-breaking behaviors (lies, cheats, steals, fights) Disrupted education Substance abuse Unstable adult lifestyle (improves with structure)

19 RICHARD S. ADLER, M.D. MEDICAL DIRECTOR

20 (A10) FASD in the Legal System: A Multidisciplinary Assessment Model for Adults & Adolescents Presented by FASDExperts.com Judge Anthony Wartnik, JD – Legal Director Natalie Novick Brown, PhD – Program Director Richard Adler, MD – Medical Director Paul Connor, PhD – Neuropsychology Director 3 rd International Conference on Fetal Alcohol Spectrum Disorder Victoria, BC, Canada March 11, 2009

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23 FASD EXPERTS DEVELOPMENTS

24 GRAPHIC PRESENTATION OF THE DEFENDANTS NEUROPSYCHOLOGICAL PROFILE

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26 PRESENTATION OF FUNCTIONAL IMPAIRMENTS IN DEFENDANTS HISTORY

27 FASDEx Secondary Disabilities Scale (Likert Scale: 1=not at all 5=very much so) SECONDARY DISABILITY (FASD Incidence)E.N.? Co-occurring mental health disorders (94%)5 Disrupted school experience (43%)1 Confinement (50%)5 Trouble with the law (60%)5 Alcohol/drug problems (35%)5 Inappropriate sexual behaviors (50%)1 Dependent living (82%)3 Employment problems (78%)4 TOTAL29 / 40

28 PRESENTATION OF THE RELEVANCE OF FASD TO INSTANT OFFENSE (THE NEXUS)

29 Offense Conduct (Likert Scale: 1=not at all / 5=very much so) Factor: Offense ConductE.N.? Illogical actions w/ high risk of detection5 Simple offense plan5 Poor escape plan5 Impulsive conduct in face of unforeseen events (e.g., victim responses) 5 Aggressive over-reaction to unforeseen events5 More sophisticated co-defendants (if applicable)3 TOTAL28 / 30

30 GRAPHIC PRESENTATION OF THE DEFENDANTS FAS-RELATED FACIAL FEATURES

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39 USE OF MRI, MORPHOMETRIC ANALYSIS & DTI

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43 Evaluation of Corpus Callosum Anisotropy in Young Adults with Fetal Alcohol Syndrome Using Diffusion Tensor Imaging X. Ma, C. D. Coles, M. Lynch, S. M. LaConte, X. Hu. Emory University, Atlanta, GA Proc. Intl. Soc. Mag. Reson. Med. 11 (2003) 2240

44 NormalDefendant

45 A PICTURE IS A PICTURE, NOT A PANACEA

46 HOSKINS V. STATE 702 So.2d 202 (Fla. 1997) Johnny Hoskins convicted of 1 st degree murder and sentenced to death Florida Supreme Court overturned trial courts rejection of request for PET scan Based on results of PET scan showing a brain abnormality, Supreme Court vacated death penalty in subsequent decision and ordered new sentencing proceeding Hoskins ultimately resentenced to death; currently on death row Brain Scanning in the Courts: The Story So Far Marchant G, J.D., Ph.D.,Orozco S., J.D. Candidate Sandra Day OConnor College of Law, Arizona 2007 http://www.law.asu.edu/files/Centers_and_Programs/LST/Conferences_&_Events/brainscan/Marchant.pdf

47 Juror: "Well, Ill be honest with you when we went in deliberation with that PET scan and all that computerized stuff they did, I said 'I felt like Id been dazzled by brilliance and baffled with b.s. Thats how I felt. VERDICT: DEATH PENALTY South Carolina v. Stanko (2006) Brain Scanning in the Courts: The Story So Far Marchant G, J.D., Ph.D.,Orozco S., J.D. Candidate Sandra Day OConnor College of Law, Arizona 2007 http://www.law.asu.edu/files/Centers_and_Programs/LST/Conferences_&_Events/brainscan/Marchant.pdf

48 FASD Experts Protocol: Application of the Scientific Method to the Forensic Setting Frye and Daubert-compliant Transparency in methodology Diagnostic criteria clear Ethical and professional standards identified A priori hypotheses Focus on testimonial clarity Consultative intake process conducted by Medical Director

49 FASD Experts Protocol: Application of the Scientific Method to the Forensic Setting Stepwise protocol Neuropsychological evaluation as leading element Is profile consistent with FASD? Functional psychology: Cross-checking psychosocial history with neuropsychological data Educational records Work history Functional status Is the history consistent with FASD?

50 FASD Experts Protocol: Application of the Scientific Method to the Forensic Setting Medical evaluation Physical examination Psychiatric examination Ancillary testing (e.g. MRI, DTI, EEG) Legal consultation to the FASD team and liaison with counsel Power of close coordination and collaboration, continuous improvement process, ensemble team model

51 Why Use A Multidisciplinary Team Assessment In The Forensic Context? FAS Diagnosis (is) confirmed using dysmorphic and anthropometric assessment procedures along with appropriate neurodevelopmental data. CDC (2004) Guidelines, p. 8

52 ACCESSIBILITY

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54 COMPREHENSIVE FASD EVALUATION OUT OF AREA & WITH REPORTS ELEMENTHOURSCOST

55 COMPREHENSIVE FASD EVALUATION OUT OF AREA & WITH REPORTS ELEMENTHOURSCOST Neuropsychological Testing 27$6750

56 COMPREHENSIVE FASD EVALUATION OUT OF AREA & WITH REPORTS ELEMENTHOURSCOST Neuropsychological Testing 27$6750 Functional Psychology Evaluation 32$8000

57 COMPREHENSIVE FASD EVALUATION OUT OF AREA & WITH REPORTS ELEMENTHOURSCOST Neuropsychological Testing 27$6750 Functional Psychology Evaluation 32$8000 FASD Medical/Diagnostic Evaluation 24$8500

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59 NATALIE NOVICK BROWN, PH.D. PROGRAM DIRECTOR

60 EUGENE NUNNERY 3 Capital Murder Charges (1) August 2006 – shot and killed adult male over a marijuana sale gone bad. (2) September 2006 – w/ 3 co-defendants, shot, and killed 1 of 3 adult males standing outside talking (attempted robbery gone bad.) (3) September 2006 – w/ 3 co-defendants, shot, and killed 1 of 5 adult males standing outside talking (attempted robbery gone bad.)

61 PROSECUTORIAL HISTORY 3 Capital Murder Charges 3 Separate Trials Trial 1 Pre-trial Assessments 8 experts retained for assessments pre-trial Sentencing Testimony local neuropsychologist testified re: likely FASD 1 local neuroradiologist testified re DTI abnormalities secondary to FAS – but had not reviewed the clinical history re: possible substance abuse, head trauma, making testimony less effective. sociologist testified re social trauma (poverty) Corrections specialist testified about prison structure Jury Decision: DEATH PENALTY

62 PROSECUTORIAL HISTORY 3 Capital Murder Charges 3 Separate Trials Trial 2 Pre-trial Assessments Neuropsychology consultation by Dr. Connor – Additional testing done – Neuropsychological profile graphed in a manner that clearly demonstrated the relevant deficits Childhood functional assessment by Dr. Brown documented 3 deficient domains Medical assessment & diagnosis by Dr. Adler = PFAS – Meeting with local neuroradiologist Sentencing Testimony Dr Brown testified re behavioral impact of FASD on offense conduct Jury Decision: HUNG JURY Judges Decision: LIFE IN PRISON

63 FASDEx FUNCTIONAL INDEX Subscales Parenting History FASDEx Academic FASDEx Mental Health FASDEx Cognitive-Behavioral Offense Conduct Arrest Conduct

64 OFFENSE CONDUCT (Likert Scale: 1=not at all / 5=very much so) Factor: Offense ConductEugene Nunnery Illogical actions w/ high risk of detection5 Simple offense plan5 Poor escape plan5 Impulsive conduct in face of unforeseen events (e.g., victim responses) 5 Aggressive over-reaction to unforeseen events5 More sophisticated co-defendants (if applicable)3 TOTAL28 / 30

65 SUMMARY: FASDEx FUNCTIONAL INDEX Offense Conduct Screen:28/30 Arrest Conduct Screen:24/30 Parenting History Screen:28/30 Academic Phenotype: 22/30 Mental Health Phenotype:29/30 Cognitive-Behavioral Phenotype:30/30 Secondary Disabilities Phenotype:29/40 FUNCTIONAL INDEX = 190 / 220

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67 THE ISSUE OF REMORSE Eugene Nunnerys Only Comment During Trial 1 (after hearing jurys sentencing decision) Im not sorry about what I did. Im guilty. Id do it again. Im not sorry. I did that. Whether I get the death penalty or life, hey, thats what happened. (If the prosecutor) dropped all the charges, I walk out of here right now and Id do the same thing….Like I said, right, I did it. I did wrong. Im not remorseful, and as I stated, prison (is) where Im supposed to be. Have a nice day everyone.

68 PAUL CONNOR, PH.D NEUROPSYCHOLOGY DIRECTOR

69 ROLE OF NEUROPSYCHOLOGY IN THE DIAGNOSIS OF FASD Identify pattern of current strengths and weaknesses of the client Determine consistency with research on FASD Determine the timeline of cognitive deficits Explore competing etiologies Determine if evidence of cognitive difficulties prior to competing etiologies Render an opinion of meeting criteria for FASD based on CDC Guidelines Refer information on to Dr. Adler for final medical diagnosis

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71 FASD DOWNWARD SLOPE Streissguth et al., 2004 EUGENE NUNNERY Intellectual Ability: IQ = 80 (9 th %ile) Achievement Testing: Reading = 74 (4 %ile) Spelling = 65 (1 %ile) Math = 70 (2 %ile) VABS Composite: Youth fac staff = 73 (4 %ile) Former GF = 56 (<1 %ile)

72 EXPECTED NEUROPSYCHOLOGICAL FINDINGS Alcohol nonspecific teratogen – Effects depend on timing and dose – Similar effects with drinking at different times Rarely see IQ below 70 Patchy presentation rather than global or focal deficits Academic deficits especially in arithmetic Social/Adaptive functioning deficits Executive function deficits Increased variability in performance

73 NEUROPSYCHOLOGICAL PROFILE: JE

74 NEUROPSYCHOLOGICAL PROFILE: RR

75 NEUROPSYCHOLOGICAL PROFILE: EJ

76 NEUROPSYCHOLOGICAL PROFILE: KJ

77 NEUROPSYCHOLOGICAL PROFILES COMBINED

78 GUDJONSSON SUGGESTIBILITY SCALE STORY 2(GSS2) GSS2 SubscaleFASD Sample (n=7) Mean/SD Norms: General Population Mean/SD (z-score difference) Norms: Court Referrals Mean/SD (z-score difference) Immediate Recall5.8/4.1 Delayed Recall5.6/5.7 Yield 18.5/4.2 Yield 29.3/2.0 Shift9.3/3.1 Total Suggestibility17.8/5.3

79 GUDJONSSON SUGGESTIBILITY SCALE STORY 2(GSS2) GSS2 SubscaleFASD Sample (n=7) Mean/SD Norms: General Population Mean/SD (z-score difference) Norms: Court Referrals Mean/SD (z-score difference) Immediate Recall5.8/4.110.9/7.1 (-.7) Delayed Recall5.6/5.79.2/6.9 (-.5) Yield 18.5/4.26.5/4.1 (-.5) Yield 29.3/2.07.9/4.6 (-.3) Shift9.3/3.14.4/3.6 (-1.4) Total Suggestibility17.8/5.310.9/6.0 (-1.2)

80 GUDJONSSON SUGGESTIBILITY SCALE STORY 2(GSS2) GSS2 SubscaleFASD Sample (n=7) Mean/SD Norms: General Population Mean/SD (z-score difference) Norms: Court Referrals Mean/SD (z-score difference) Immediate Recall5.8/4.119.7/6.1 (-2.3)10.9/7.1 (-.7) Delayed Recall5.6/5.718.4/6.0 (-2.1)9.2/6.9 (-.5) Yield 18.5/4.24.5/3.6 (-1.1)6.5/4.1 (-.5) Yield 29.3/2.05.5/4.0 (-1)7.9/4.6 (-.3) Shift9.3/3.13.0/3.0 (-2.1)4.4/3.6 (-1.4) Total Suggestibility17.8/5.37.5/5.3 (-1.9)10.9/6.0 (-1.2)

81 HON. ANTHONY P. WARTNIK, J.D., JUDGE (RETIRED) LEGAL DIRECTOR

82 RELEVANCE OF FASD IN THE LEGAL ARENA Pretrial Stage: Competency – Waiving Miranda/Right against self- incrimination – Consent to search, – Competency to proceed to trial Plea negotiation

83 RELEVANCE OF FASD IN THE LEGAL ARENA Trial/Guilt Phase Diminished capacity/guilt: mental state beyond a reasonable doubt / mens rea False confession Testimonial capacity (e.g., as defendant, as witness, as victim) Vulnerable victim

84 RELEVANCE OF FASD IN THE LEGAL ARENA Trial/Sentencing Mitigation Future dangerousness

85 RELEVANCE OF FASD IN THE LEGAL ARENA Post-conviction Stage Ineffective assistance of counsel Trial court error

86 History of FASD In Court: Over 100 court decisions regarding FASD reflect general recognition that FASD affects behavior in ways that are relevant to the justice system.

87 History of FASD In Court: There is a world of difference between evidence of past behavioral problems and evidence that a defendant has organic brain damage from FASD that caused such behavior. A critical question in law is whether a defendant is fully responsible for his criminal actions. Absent a link between the brain damage and the criminal conduct (the nexus), a history of behavior problems may only convince the jury that the defendant is a bad actor.

88 THE STARTING POINT The treatment of criminal offenders as rational, autonomous and choosing agents is a fundamental organizing principle of our criminal law. G.Ferguson, A Critique of Proposals to Reform the Insanity Defence (1989) 14 Queens L.J. 135, at p. 140

89 THE PROBLEM People afflicted with FASD often are not: - Rational - Autonomous - Choosing agents - Able to reason right from wrong - Able to choose right from wrong

90 THE RIGHT TO DIAGNOSIS BY AN EXPERT 1. Castro v. Oklahoma, 71 F.3 rd 1502 (10 th Cir. 1995), p. 10 Castro was convicted of murder and sentenced to death The court held: *Castro was entitled to a court appointed and paid for expert to help develop evidence regarding five different problems, including FAS and FAE *A criminal defendant was entitled to such experts provide that he made a substantial showing that his mental state was in dispute and was relevant to the outcome of the case, to either the guilt determination or the sentence

91 2.Dillbeck v. State, 643 So. 2d 1027 (Fla.), p. 28 The court held: *Evidence of FAE should be admitted at the guilt phase of a trial if offered to show that defendant lacked the mental state (here premeditation) that is part of the crime

92 3.Lambert v. Blodgett, 248 F.Supp. 2d 988 (E.D. Wa. 2003) p. 59 Juvenile was charged with murder and the case was transferred to adult court where he pled guilty and was sentenced to life in prison without possibility of parole Held: *Defendant was denied effective assistance of counsel because counsel hired a psychologist and did not provide sufficient information as to permit a meaningful evaluation including the possibility that the client was FAS which might provide a diminished capacity defense or provide counsel with a realization that there was a need to explain in greater detail the legal issues to the client

93 4.Silva v. Woodford, 279 F.3 rd 825 (9 th Cir. 2002), p. 98 Defendant was tried and sentenced to death while co-defendants received 11 years and life with the possibility of parole Held: *Defendant was denied effective assistance of counsel due to failure to investigate the possibility of FAS for mitigation, counsel didnt investigate clients background, including family, criminal history, substance abuse and mental health history

94 5.State v. Brett, 126 Wn.2d 868 (2001), p. 108 Following conviction for aggravated murder 1 st degree, counsel requested a one month delay of the punishment trial in order to obtain a diagnosis regarding FAS/FAE which was denied by the trial court Held: *Defendant was denied effective assistance of counsel due to failure to attempt to obtain such a diagnosis before the guilt phase trial. The court overturned the death penalty sentence.

95 6. Landrigan v. Schriro, 441 F.3 rd 638 (9 th Cir. 2006) Landrigan sought the appointment of a medical expert to assist in establishing mitigating evidence regarding the effects drug and alcohol use on a developing fetus, and also sought an evidentiary hearing on his claim of ineffective assistance of counsel The state court denied both motions The federal court found that counsels knowledge of drug and alcohol use by clients mother, his attempt to introduce such facts as testimony together with counsels failure to look into the results of substance abuse during pregnancy and its effect on the child required an evidentiary hearing on the ineffective assistance of counsel claim

96 7. Rompilla v. Beard, 545 U.S. 374 (2005) Rompilla was convicted of murder and sentenced to death. He claimed ineffective assistance of counsel at the penalty phase for failure to develop evidence of FAS. He claimed that had counsel obtained school, medical, court and prison records, they would have revealed significant mitigating evidence about his childhood, mental capacity and health, and alcoholism Two psychologist examined him after sentencing and reviewed the records that the attorney had failed to obtain and concluded that Rompillas problems relate back to his childhood and were likely caused by FAS and that his capacity to appreciate the criminality of his condut or to conform his conduct to the law was substantially impaired at the time of the offense, Id. at 244 * The Supreme Court held that the facts constituted ineffective assistance of counsel since counsel knew that the prosecution would be relying on the very same records as evidence of aggravation and because review of the records would have uncovered a range of mitigation leads that no other source had opened up. (5 – 4 decision)

97 YOU MUST TIMELY SEEK DIAGNOSIS People v. W, 564 N.W.2d 903 (Mich. C/A 1997), p. 85 The trial judge sentenced the defendant and later granted a motion to modify the sentence based on psychological reports that had not been submitted prior to the original sentencing, reducing the sentence based on these reports Held: *Once sentencing takes place, the trial court loses jurisdiction to modify or alter the sentence *The law is the same in the State of Washington

98 CLIENT MUST BE SEEN BY THE MEDICAL EVALUATOR Trial court and appellate court judges are resistant to accepting the expert opinion of a doctor who has only examined the clients medical records and social history and has not physically examined the client

99 1.State v. Ortiz, 104 Wn.2d 479 (1985) 2.State v. Jones, 99 Wn.2d 735 (1983)

100 JUDICIAL RESISTANCE 1. Hicks v. Schofield, 599 S.E.2d 156 (Ga. 2004) Hicks was convicted of murder and sentenced to death. His application for certificate of probable cause to appeal and stay of execution was denied by the state Supreme Court *Per the Chief Justices dissent, the majority ignored a substantial and credible claim of mental retardation based in part on Hicks FAS diagnosis *A doctor retained by the defense reviewed Hicks records but was unable to give a definitive diagnosis of mental retardation without interviewing Hicks due to the fact the state denied the doctor access to Hicks in jail * The dissent found this to be a constitutional violation

101 2. U.S. v. Nelson, 419 F.Supp.2d 891 (E.D. La. 2006) After a pre-trial evidentiary hearing the judge ruled that Nelson was ineligible for the death penalty due to his being mentally retarded. The court relied upon the Atkins v. Virginia,536 U.S. 304 (2002), definition (a combination of the American Psychiatric Association standard and the standard contained in the Diagnostic and Statistical Manual of Mental Disorders, 4 th Edition Text Revision) that defines mental retardation as (1) having an IQ of approximately 70 or below or two standard deviations below the mean (ii) concurrent deficits of impairments in adaptive functioning in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety; and (iii) the onset of such symptoms before age 18. In a pre-trial hearing, the court ruled that Nelson was ineligible for the death penalty.

102 2. U.S. v. Nelson (Cont.) Testimony had been presented by three psychiatrists who had each administered tests to Nelson. Each concluded that he met each of the Criteria. On doctor testified that her diagnosis was partly attributable to the fetal alcohol exposure that Nelson suffered, as children exposed to alcohol in utero have a higher instance of mental retardation and learning disabilities. Id. At 897

103 3. Stankewitz v. Woodford, 365 F.3 rd 706 (9 th Cir. 2004) Stankewitz was convicted of murder and sentenced to death. Three experts all agreed that Stankewitz had brain damage and would have testified had his lawyer requested. One expert testified that he appeared not to be fully able to appreciate the flow of events or full implications of his actions. Another medical expert opined that he is borderline retarded, with an IQ of 79, and suffers from significant brain dysfunction, perhaps attributable to FAS and childhood abuse. The third expert stated that his brain damage would produce problems with emotional control, tendencies to be impulsive and unpredictable, and to be unable to exercise adequate judgment or to understand the consequencesof his behavior. *The court found that the mitigating facts alleged by Stankewitz – which included organic brain damage (presumably a reference to FAS)– constitute the kind of troubled history (the Supreme Court has) declared relevant to assessing a defendants moral culpability. 365 F.2d at 723

104 HOLMES, HEARN AND RELATED CASE AND STATUTORY LAW

105 Aristotle and Judges: 13:7

106 Historical View Foolish, Behold,thou Drunken, shalt conceive hairbrain and bear a women most son: And now, often bring drink no wine forth children or strong drink. like unto them- selves. - Aristotle in - Judges 13.7 Problematica

107 Imbeciles and idiots were not subject to being put to death. Children younger than seven years old were thought to be incapable or lacking in capacity to commit crimes and children between ages 7 and 14 were presumed to lack capacity to commit crimes.

108 1.Children under the age of eight years are incapable of committing crime. 2.Children of eight and under twelve years of age are presumed to be incapable of committing crime. (This is a rebuttable presumption). 3.By inference, due to statutory silence, children age 12 and over are capable of committing crime.

109 1.Under the statutory scheme where the statute is silent regarding capacity of children age twelve and older, is capacity to commit crimes absolute or can capacity be presumed, under liberal construction, subject to proof of incapacity? 2.Isnt incompetency due to mental retardation in the case of children twelve years of age and older and in the case of adults just another way of saying, lack of capacity?

110 1.In order to be classified as mentally retarded, must there be a full scale I.Q. of 70 or below in every case or can a person be mentally retarded when the full scale I.Q. is above seventy but, due to the severity of the adaptive deficits, the persons general intelligence level is well below seventy? 2.How will the U.S. Supreme Court respond to the lack of uniform definition of mental retardation from state to state?

111 1.In Atkins v. Virginia, 536 U.S. 304 (2002), Atkins IQ tested at 59 before the crime but above 70 after his lawyers had intellectually stimulated him. The court held that he was mentally retarded and that mentally retarded persons are not subject to the death penalty. 2.The definition from state to state varies in significant degrees so that a person would be subject to the death penalty in some states but would be mentally retarded and not subject to the death penalty in other states.

112 QUESTION Will the U.S. Supreme Court work its way through the problem of inconsistent definitions of MR from state to state as it did with the issues of juveniles not being subject to execution (first age 15 and finally being set at 17) and the basic issue of whether a person with MR can be executed (e.g.) an evolutionary process?

113 1.9 states –Same as Washington (I.Q.) and 13 states - same conception to age 18 onset requirement. 2.One state - 75 or below full scale I.Q. 3.One state - 65 or below full scale I.Q. 4.One state – presumed MR if 70 or below I.Q. 5.One state - the AAMR definition.

114 6.16 states –no full scale I.Q. requirement. 7.1 state - a presumption of no MR if 70 or above I.Q. 8.3 states - age 22 cut-off for onset of condition. 9.4 states - undefined developmental period. 10.6 states appear to be open ended as to when it can develop..

115 There are still 23 states unaccounted for. Who knows how many more variations are out there?

116 Special techniques and measures have been developed for defendants with mental retardation. The prime reason for this division is due to significant differences between the two populations. While incompetency due to mental illness may be very different over time and may be reversible with treatment, incompetence due to mental retardation is more static and relates more directly to susceptibility to suggestion.

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118 Brandy Holmes petition for writ of certiorari was rejected by the U.S. Supreme Court this last October Term. There were two amicus briefs, one submitted by the Constitution Project and the other from NOFAS.

119 They claimed that the Louisiana courts failed to permit consideration of mitigating circumstances, that there was a failure of meaningful appellate review of mitigating evidence in violation of Atkins v. Virginia by the Louisiana Supreme Court and that FAS, a cause of a lack of significant adaptive functions should be considered in addition to I.Q. score as a mitigating circumstance in Louisianas death penalty sentencing. It claimed that Louisiana improperly treats this condition as an aggravating factor.

120 The NOFAS brief pointed out that courts have recognized the substantial impact of FAS when viewed as a mitigating factor. It cited to : 1.State v. Haberstroh, 119 Nev. 173 (2003)* 2.Castro v. Oklahoma, 71 F.3 rd 1502, 1516 (10 th Cir. 1995); and 3.Dillbeck v. State, 643 So.2d 1027 (Fla. 1994) as cases recognizing that FAS is a mitigating factor and in instances where specific intent is an element of the crime, is admissible on the question of guilt or innocence. * Haberstroh is a case in which FASDExperts is participating

121 This is a Fed. R. Civ. P. 59(e) motion to alter or amend the judgment dismissing with prejudice Hearns successive habeas petition under Atkins v. Virginia. Hearns attorney averred that he was developing a mental retardation defense despite non-qualifying IQ scores at the time of the hearing that resulted in the judgment and that the expert witness was not available until after entry of the judgment. At the time of the pre-judgment hearing, Hearns expert, Dr. Watson, found that he had neuropsychological deficits but was not able to find that he was mentally retarded (full-scale IQ scores of 70 or below) because his IQ scores were 87-93.

122 The trial judge ruled that Hearns post judgment expert, Dr. Stephen Greenspan, was able to satisfy the court that, due to the constellation of the neuropsychological deficits and the impact of FAS on Hearns functional ability, Hearn could be found to be mentally retarded in spite of the fact that his full-scale IQ scores were above Texas 70+ cut-off and issued a stay and abatement of the judgment, thereby opening the door for the Atkins claim in the State Courts.

123 Dr. Greenspan, in his Declaration, opined as follows: The basic question....is if it is appropriate to change the operational criteria one uses to diagnose M.R, in order to meet the spirit of the constitutive definition. My answer is that under certain circumstances, such as when an individual has a mixed pattern of intellectual deficits owing to a diagnosed developmental brain syndrome such as FASD, it is appropriate and necessary to change the operational criteria.

124 Dr. Greenspan continued: The use of IQ scores are an attempt to create an illusion of scientific certainty in identifying a disorder whose causes and manifestation are often hidden and subtle.... The problem is that when the artificial number fails to fit with the disability as it is experienced and documented by others, which criterion should be used? Typically, clinicians and government entities find it easier to go by the book, but there are times when that results in a wrong and, possibly, unjust decision. Dr. Greenspan emphasized that his responsibility as a psychologist is to exercise judgment which cannot be done if required to apply artificially created numbers.

125 WHY AM I INVOLVED?

126 CONTACT INFO www.FASDExperts.com 1700 Seventh Avenue, Suite 210 Seattle, WA 98101 (206)624-3800

127 CONTACT INFO Richard S. Adler, MD, Medical Director (206) 624-3800 richadler@msn.comichadler@msn.com Dr. Natalie Novick Brown, Ph.D, Program Director (206)441-7652 fstnat@yahoo.com Dr. Paul Connor, Ph.D., Neuropsychological Director (206) 940-1106 Paul@ConnorNeuropsychology.com Hon. Anthony P. Wartnik, J.D., Judge (Retired), Legal Director (206) 232-2970 TheAdjudicator@comcast.net

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