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2010 Appellate Judicial Attorneys Institute October 27, 2010 Burlingame, CA FETAL ALCOHOL SPECTRUM DISORDERS: FROM COMPETENCY TO STAND TRIAL TO CLEMENCY.

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Presentation on theme: "2010 Appellate Judicial Attorneys Institute October 27, 2010 Burlingame, CA FETAL ALCOHOL SPECTRUM DISORDERS: FROM COMPETENCY TO STAND TRIAL TO CLEMENCY."— Presentation transcript:

1 2010 Appellate Judicial Attorneys Institute October 27, 2010 Burlingame, CA FETAL ALCOHOL SPECTRUM DISORDERS: FROM COMPETENCY TO STAND TRIAL TO CLEMENCY Richard S. Adler, M.D. Natalie Novick Brown, Ph.D. Seattle, WA

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4 accessed October 26, 2010.

5 FASD

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7 BRANDON RHODE Triple murder 1988 – 2 children and father in their home – during burglary Jones County, GA Rhode: 18y, 9 months at the time of crime Same-aged co-defendant

8 BRANDON RHODE Neuropsychological testing – organic impairment attributed to substance use. FASD suspected, but mother denied alcohol use “prior to pregnancy” Death sentence

9 BRANDON RHODE State Habeas appeal ca Seen by psychiatrist with expertise in adolescent brain development who diagnosed FASD, pre- Roper v. Simmons decision Habeas court found prenatal alcohol exposure history not credible

10 BRANDON RHODE Suicide of Death Row friend in next cell 1/2010 Infrequent, non-scheduled MH visits FASD not diagnosed formally by correctional staff No treatment aimed at impulsivity/FASD

11 BRANDON RHODE Clemency hearing 9/17/2010 Clemency Board found FASD relevant and present Clemency Board inquiry included: Religious beliefs Remorse Disciplinary Report history Clemency denied 9/17/2010 at 3:30 p.m.

12 BRANDON RHODE MH visit 5 minutes 9/17/2010 No MH follow-up scheduled, or mentioned On “Death Watch” BJR provided razor 9/17/2010 by staff, not taken back, despite hx of suicide, dx/tx for Depression

13 BRANDON RHODE 9/21/2010: Suicide attempt  hemorrhagic shock 9/21/2010: MH visit 5 minutes. No change in tx plan. 9/24/2010: Examination by RSA 9/27/2010: Execution

14 “If we excuse those whose traumatic life experiences have injured them – but not deprived them of the capacity to exercise responsibility and restraint – we leave society dangerously at risk.” GOLDEN J: MESSAGE IN A BOTTLE: THE MAKING OF FETAL ALCOHOL SYNDROME CAMBRIDGE, MA: HARVARD UNIVERSITY PRESS, 2005, 154. CALIFORNIA GOVERNOR PETE WILSON, 1992 IN RE: THE CLEMENCY APPEAL OF ROBERT ALTON HARRIS

15 “If we excuse those whose traumatic life experiences have injured them – but not deprived them of the capacity to exercise responsibility and restraint – we leave society dangerously at risk.” GOLDEN J: MESSAGE IN A BOTTLE: THE MAKING OF FETAL ALCOHOL SYNDROME CAMBRIDGE, MA: HARVARD UNIVERSITY PRESS, 2005, 154. CALIFORNIA GOVERNOR PETE WILSON, 1992 IN RE: THE CLEMENCY APPEAL OF ROBERT ALTON HARRIS

16 JEFFREY LANDRIGAN

17 Justice Clarence Thomas, writing for the slim majority, said the never-presented evidence "would not have changed the result.“ The sentencing judge has now stated under oath that if she knew about Landrigan's brain damage, fetal alcohol syndrome, genetic predispositions and parental abandonment, she would not have sentenced him to death. MAN ON DEATH ROW DESERVES LIFE TERM TRIAL JUDGE NEVER WAS TOLD OF HIS BRAIN DAMAGE Oct. 21, 2010 A. Bates Butler III, Former US Attorney for Arizona The Arizona Republic

18 Justice Clarence Thomas, writing for the slim majority, said the never-presented evidence "would not have changed the result.“ The sentencing judge has now stated under oath that if she knew about Landrigan's brain damage, fetal alcohol syndrome, genetic predispositions and parental abandonment, she would not have sentenced him to death. MAN ON DEATH ROW DESERVES LIFE TERM TRIAL JUDGE NEVER WAS TOLD OF HIS BRAIN DAMAGE Oct. 21, 2010 A. Bates Butler III, Former US Attorney for Arizona The Arizona Republic

19 FASD SHOULD BE RAISED AS EARLY AS POSSIBLE IN THE LEGAL PROCESS

20 JUST LIKE MENTAL RETARDATION, FASD MUST BE PRESUMED TO BE PRESENT UNTIL SHOWN TO BE OTHERWISE

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22 SUGGESTIBILITY

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24 GUDJONSSON SUGGESTIBILITY SCALE STORY 2 (GSS-2) GSS2 Subscale FASD Sample (n=7) Mean/SD UK General Population Mean/SD UK Court Referrals Mean/SD Immediate Recall7.8/ /6.1 ***10.9/7.1 Delayed Recall6.1/ /6.0 ***9.2/6.9 Yield 17.9/4.24.5/3.66.5/4.1 Yield 29.3/2.05.5/4.0 ***7.9/4.6 Shift9.9/3.23.0/3.0 ***4.4/3.6 *** Total Suggestibility17.7/4.97.5/5.3 ***10.9/6.0 ** * = Significant at <.05 ** = Significant at <.01 *** = Significant at <.005

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26 HIGH INDEX OF SUSPICION HIGH INDEX OF SUSPICION DILIGENT MITIGATION EFFORTS DILIGENT MITIGATION EFFORTS STEP-WISE EXPERT CONSULTATION STEP-WISE EXPERT CONSULTATION

27 SYLLABUS 1. Novick Brown: FASD “Red Flags” 2. Novick Brown: FASD throughout the legal process – theory and practice/ case examples 3. Adler: Practical “Action Steps” 4. Adler: Summary/ Q & A

28 NATALIE NOVICK BROWN, PH.D.

29 SCREENING & RED FLAGS

30 BIRTH MOTHER Substance abuse history Prostitution history Cognitive impairment Criminal history CPS history Absent during client’s childhood Psychiatric history (e.g., depression, psychosis) Extensive medical history Death from alcohol-related causes

31 CLIENT RECORD REVIEW Prematurity / birth complications / seizures Failure to thrive or childhood growth deficiency (short and/or thin) Developmental delay Learning disabilities / SPECIAL EDUCATION Speech and language services in elementary school Poor grades, school drop out Low achievement test scores Behavior problems in school ADD / ADHD behavior/diagnosis ODD / CD diagnoses

32 CLIENT 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 (60% drop out of school) Substance abuse (29% adolescents, 46% adults) Confinement (~ 50%) Unstable adult lifestyle (improves with structure)

33 WHAT DOESN’T MATTER

34 FAS “Face” in Young Child (From Streissguth and Little, Unit 5, Project Cork, Slide/Teaching Curriculum on Alcohol Use and Its Medical Consequences, 1994) Diagnostic Criteria Associated Features Epicanthal folds Flat midface Low nasal bridge Short nose Minor ear anomalies Micrognathia 1. Short palpebral fissures 2. Flat philtrum 3. Thin upper lip Streissguth (1994)

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36 FAS Family Resource Institute

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38 WHAT DOES MATTER

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41 ATTORNEY-CLIENT INTERVIEWS Immature, naïve, eager to please (lower IQ) Stubborn, “difficult” (IQ-related) Has problems providing sequential, detailed narrative ( lots of: “one thing led to another”) Adds little to conversations (few questions about defense details) / exclusive focus on length of incarceration time Doesn’t remember what you tell him from appointment to appointment

42 INSTANT OFFENSE Illogical actions with high risk of detection “Simple” plan with no contingencies (focus is only on the objective w/ no exit strategy) Impulsive, aggressive actions in reaction to unexpected events (“fight or flight”) Over-reacts to confrontation with excessive aggression More sophisticated, experienced co-defendants

43 POST-ARREST Immediately / easily waives rights Easily manipulated Initial denial during interrogation followed by guileless confessions that most offenders would never make “Over” confesses (to anything and everything) Behavioral regression during confession (e.g., tears) Emotional detachment (e.g., flat affect, fails to see seriousness of crime)

44 PRIOR CRIMINAL HISTORY Juvenile record: running away and/or lots of stealing Offenses don’t “make sense” (e.g., no risk- benefit consideration) Impulsive, opportunistic crimes Prone to multiple probation violations Assaults involve over-reactions (may occur in combination with substance use)

45 “FASD CRIMES” General crimes (60%) shoplifting/theft (36%) burglary (15%) DV (15%) assault (17%) Sexual crimes (50%) promiscuity (26%) sexual advances, including assault (18%)

46 PLEA BARGAIN Felony Harassment (WA; 2008): prosecutor agreed to reduce charges to misdemeanor harassment Murder 1/Robbery (PA; 2008) Prosecutor takes death off table in exchange for bench trial

47 COMPETENCY TO STAND TRIAL State v. Jesse James Scholler, Snohomish County Superior court Case Nos , y/o male charged with 2 cts Arson 1 Judge Thomas J. Wynne (August 6, 2008)

48 "Jesse has a 5th grade reading level but he comprehends what he reads at only the 3rd grade level. He is at the educational level of an 8 year old….He does have FAS. As a result of that, he does have significant executive functioning deficits. His verbal skills are such that apparently those deficits are masked to a large extent to those who don't know him or don't have a better understanding of what those deficits are….

49 “I am persuaded that evidence in this case reflects that Jesse does not have the capability to meaningfully assist his attorney in his own defense due to his executive functioning deficits as a result of FAS, and that based on that he would not be competent to assist in his own defense in this matter….I do not see any ability to restore competency given the nature of the disability."

50 SENTENCING ARSON 1 (WA; 2008) Downward departure ROBBERY 1 (WA; 2008) Low end of range VEHICULAR HOMICIDE (WA; 2008) Downward departure AGGRAVATED ASSAULT (2 cts; WA; 2010) Low end of range AGGRAVATED SEXUAL ASSAULT (WA, 2009) Downward departure

51 SENTENCING CAPITAL MURDER LWOPP (TX, 2010) LWOPP (NV, 2009, 2010)

52 SENTENCING: Vulnerable Victim SEXUAL ASSAULT (CO, 2008) Enhanced sentence for perpetrator SEXUAL ASSAULT (OR, 2008) Plea bargain

53 POST-CONVICTION RELIEF/HABEAS MIRANDA COMPETENCY & MENTAL STATE court granted habeas petition (NJ, 2006) COMPETENCY/MENTAL STATE/SENTENCING (pending) 2007 (SC) 2010 (TN) 2010 (AZ)

54 WAIVER/REVERSE WAIVER

55 RICHARD S. ADLER, M.D.

56 ACTION STEPS

57 FASD CHECKLIST

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60 CHILDHOOD PHOTOGRAPHS

61 DIGITAL PHOTOGRAPH

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63 INITIAL REVIEW OF PRE-EXISTING TESTING

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65 NEUROPSYCHOLOGICAL PROFILE: JE

66 ACQUISITION OF DOCUMENTS

67 IDENTIFYING SUITABLE SOURCES OF HISTORY

68 NEXUS

69 COST & TIMETABLES

70 NEURORADIOLOGICAL DATA

71 " NEUROIMAGING IS NEVER THE FIRST OPTION AND IT SHOULD ONLY BE DONE ADVISEDLY." APRIL 23, 2010 HABEAS ASSISTANCE & TRAINING COUNSEL PROJECT NATIONAL SEMINAR SEATTLE, WA JOHN BLUME:

72 A PICTURE IS A PICTURE, NOT A PANACEA

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78 NormalDefendant DIFFUSION TENSOR IMAGING

79 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 court’s 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 O’Connor College of Law, Arizona 2007

80 Juror: "Well, I’ll 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 I’d been dazzled by brilliance and baffled with b.s. That’s 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 O’Connor College of Law, Arizona 2007

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82 THE RIGHT TO DIAGNOSIS BY EXPERTS AND RELATED ISSUES 1. Castro v. Oklahoma, 71 F.3 d 1502 (10 th Cir. 1995), p. 10 (Court Appointed and publicly paid for). 2. Lambert v. Blodgett, 248 F.Supp.2 d 988 (E.D. WA 2003) p. 9 (Duty to provide experts with meaningful information). 3. Silva v. Woodford, 279 F.3 d 825 (9 th Cir. 2002) p. 98 (Duty to investigate FAS for possible mitigation) 4. Rompilla v. Beard, 545 U.S. 374 (2005) (Duty to obtain prison, school, medical records, etc. that might reveal significant mitigating evidence and/or which would likely be relied on by the prosecutor for aggravation).

83 5. Hicks v. Schofield, 599 S.E.2d 156 (GA 2004) (Expert could not definitively diagnose MR without examining defendant). 6.Stankewitz v. Woodford, 365 F.3 rd 706 (9 th Cir. 2004) p. 723 (The alleged mitigating facts, including “organic brain damage”, presumably a reference to FAS, constitute “the kind of troubled history the Supreme Court has declared relevant to assessing a defendant’s moral culpability.”)

84 HOW THINGS GO WRONG

85 HOW THINGS GO RIGHT

86 SUMMARY

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88 FASD EXPERTS CONTACT INFORMATION Seventh Avenue, Suite 210 Seattle, WA (206)


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