1. (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 Paul Connor, PhD – Neuropsychology Director Richard Adler, MD – Medical Director 3 rd International Conference on Fetal Alcohol Spectrum Disorder Victoria, BC, Canada March 11, 2009

2. Hon. Anthony P. Wartnik, J.D., Judge (Retired) Legal Director

3. Natalie Novick Brown, Ph.D. Program Director

4. FASD Experts: Multidisciplinary Forensic Assessment Team Unique multi-stage/multi-disciplinary approach to FASD assessment within the forensic context Broad forensic applicability: Criminal Civil Trial Post-conviction Defense Prosecution (i.e. victims with FASD) International scope

5. Take Home Messages Multidisciplinary FASD assessment is an important advance Best practice = multidisciplinary model Best practice = structured protocol What we’ve learned from current case law What we’ve learned from our own history Spreading the word

6. Related Workshops at This Conference Services to FASD Youth in Criminal Justice System (Manitoba Youth Justice Program) Cognitive Profiles/Social Risk Factors for Youth Justice Clients (BC’s Asante Center for FAS) Educating Justice Professionals (DOJ Canada & Public Health Agency of Canada) Changing Public Policy in the Legal System (FASD Experts, UW FADU, Los Angeles Mental Health Court DPD)

7. Typical FASD-like Behaviors in the Criminal Context: Easily led by more sophisticated peers Multiple low-grade offenses in adolescent years, often with others / frequently arrested Offenses don’t “make sense” (e.g., stealing something of little value; engaging in crime when likelihood of being detected is high) Impulsive, opportunistic crimes Failure to change strategy when something goes wrong (perseveration )

8. Typical FASD-like Behaviors in the Criminal Context: No exit strategy for crimes resulting in “fight-or-flight” behavior in chaotic high-stress situations Rights against self-incrimination waived immediately upon arrest Guileless confessions (occasionally to offenses subject hasn’t committed) No apparent guilt or remorse Unable to appreciate magnitude of crime (nonchalance, inappropriate smiling)

9. State of the Art in Forensic Assessment of FASD Pre-2007: “Hit or Miss” Post-2007: FASD Experts  – First systematic, structured approach to forensic assessment of FASD

10. Relevance of FASD in the Legal Arena Pretrial Stage: Plea negotiation Competency – Waiving Miranda/Right against self- incrimination – Consent to search, – Competency to proceed to trial

11. 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

12. Relevance of FASD in the Legal Arena Trial/Sentencing Mitigation (circumstances affecting capacity to appreciate the wrongfulness of the conduct or to conform conduct to the requirements of the law) Sentencing options (e.g., DDD) Treatment planning

13. Relevance of FASD in the Legal Arena Post-conviction Stage Appeal (e.g., was waiver voluntary and knowing? did trial court err?) Ineffective assistance of counsel

14. Role of the Forensic Mental Health Professional: “Expert Witness” Expert witnesses: individuals considered to have special knowledge of the subject by virtue of education, training, and experience such that others may legally and officially rely on their opinions vs Fact witnesses: can only testify about the “facts” in a case and cannot give their opinions

15. Expert Witnesses in the Mental Health Arena: THE GOOD: Review and provide information re: psychiatric conditions that might cause problems with intellectual functioning, memory and other relevant issues: Prenatal: Genetic conditions FASDs Postnatal: Traumatic brain damage caused by head injury (TBI) Degenerative brain diseases Chronic alcohol and drug abuse Secondary to general medical conditions

16. Expert Witnesses in the Mental Health Arena: THE BAD AND THE UGLY: Adversarial: expert witnesses are subject to cross examination and attacks on their reputation, credibility, and opinions

17. How is Forensic Assessment Different from Clinical Assessment? A forensic assessment often involves an individual who has been charged with a crime (usually a violent crime) to establish whether there were any physical or mental factors that: 1)affected criminal conduct, 2)affect ability to make competent legal decisions, 3)affect risk of future violent offences

18. 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

19. Why is FASD Relevant in Court? FASD = brain damage that may affect executive functioning  Executive functioning = judgment, decision making, impulse control  Judgment, decision making, impulse control impact all aspects of behavior in the legal context

20. 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 However, decisions reflect an imperfect understanding of the diagnostic process, symptoms, and behavioral consequences of FASD

21. 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.”

22. FASD is a Potential Mitigating Factor It is organic in nature rather than the result of a bad disposition; It arises from circumstances entirely beyond the individual’s control (unlike, for example, alcohol or drug abuse); and It affects the defendant’s ability to understand society’s norms and/or to conduct his behavior within those norms.

23. U.S. Criminal Case Law Review (UW/FADU Legal Issues Web Site) Pre-Trial Phase Miranda Waiver (right against self-incrimination): 0 cases Competency to Stand Trial: 5 cases Juvenile Remand: 0 cases (*) Trial/Sentencing Phase Diminished Capacity/Guilt: 5 cases Sentencing Mitigation: 35 cases Post-Conviction Phase Ineffective Assistance of Counsel: 29 cases

24. U.S. Criminal Case Law Review (UW/FADU Legal Issues Web Site) Other Sexual Offenses: 12 cases Police Practices: 2 cases Testimony by Individuals with FAS/FAE: 5 cases Vulnerable Victim: 8 cases Waiver of Rights: 5 cases General: 6 cases

25. What does analysis of over 100 legal cases tell us about the problems with FASD in the courtroom?

26. Assumption Errors in FASD Cases: Average IQ precludes FASD diagnosis Good verbal skills preclude FASD dx MRI/EEG tests are definitive Structured/organized reasoning precludes FASD dx

27. Omission Errors in FASD Cases: Failing to obtain specific FASD diagnosis Failing to address if low IQ may be due to FASD Failing to consider competency and mental state issues Failing to select appropriate experts (i.e., assuming a generic expert “can do everything”) Failing to supply experts w/ sufficient information (“cherry picking”) Failing to adequately investigate mom’s drinking

28. More errors… Failure of legal team to educate themselves about FASD Shotgun approach to mitigation Discarding FASD defense if there is no evidence of maternal drinking Stopping FASD investigation if mom denies drinking during pregnancy Inadequate records search (e.g., school records)

29. Still more errors… Failing to address “the nexus” Assuming that previous criminal problems = antisocial personality disorder Assuming psychiatric conditions/personality disorders/acute substance intoxication explain “all” of the problem Failing to ensure general consistency among defense experts Assuming a non-M.D. or generic M.D. can “diagnose” FASD Opting for “local” M.D. expert with “some” FASD experience (“seat of the pants” diagnosis) to reduce cost

30. Inherent Problem in FASD Defense: Complicated Diagnosis Physical, as well as psychological, assessment (i.e., need at least 2 experts), which is more difficult in adolescents and adults Complex diagnostic criteria that are addressed in 2 separate government documents but not addressed in the DSM-IV-TR

31. FASD Diagnosis Requires Explanation for Erroneous Stereotypes & Assumptions: Average IQ Good verbal skills Careful “planning” or “premeditation” of offense behavior Lack of evidence/mom denies drinking during pregnancy Failure to meet criteria for a full FAS diagnosis

32. How is Forensic FASD Diagnosis Similar To Clinical Diagnosis? Best practice: standardized diagnostic criteria structured diagnostic protocol multidisciplinary assessment and reliance on multiple sources of data

33. How is Forensic FASD Diagnosis Different Than Clinical Diagnosis? 1) Clinical diagnosis typically involves children and does not contemplate legal challenge, 2)Forensic diagnosis typically involves adolescents or adults and contemplates a significant legal challenge, 3)Forensic diagnosis requires detailed and understandable links from prenatal exposure to the instant offense behavior or to civil/clinical impairment

34. Forensic Assessment Must Address The Nexus (i.e. Link FASD to Offense Conduct): prenatal exposure ↓ brain damage in fetus ↓ lifelong cognitive-behavioral deficits ↓ specific deficits in judgment, decision-making, cause-and-effect awareness, and impulse control ↓ instant offense behavior

35. Inherent Problem in FASD Case Law: Confusion While the body of case law reflects a widespread recognition that FASD affects behavior in ways that might be relevant to the legal system, it also reflects an imperfect understanding of symptoms, methods of diagnosing, and behavioral consequences of FASD.

36. FASD Diagnostic Criteria Institute of Medicine (1996) 4-Digit Diagnostic Code (2000) Centers for Disease Control (2004) ICD-10: Q86.0, “Fetal Alcohol Syndrome “ DSM-IV-TR: Cognitive Disorder NOS due to a general medical condition

37. Quick Reminder of Diagnostic Criteria: 5 possible diagnoses per IOM under FASD umbrella: FAS (with and without confirmed exposure), Partial FAS, ARND, ARBD 4 diagnostic criteria per CDC for FAS: – prenatal alcohol exposure – growth deficit – facial abnormalities – CNS abnormalities 3 CNS abnormalities: – Structural – Neurological – Functional

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

39. Impetus for FASD Experts: Case #1 Post-Conviction Appeal (ineffective assistance of counsel) - New Jersey, 2005 Trial Date: 1995 IQ: VIQ=96, PIQ=82, FSIQ=88 Referral question: Was there sufficient information in the 1995 trial record to support an FASD diagnosis in 35-year-old man convicted of Murder 1? Defense experts: Dr. Fred Bookstein (MRI analysis) Dr. Natalie Brown (FASD diagnostic record review)

40. Case #1: Case Outcome: upon petition, New Jersey Court of Appeals agreed to hear motion, but appeal was rendered moot when shortly thereafter state abolished the death penalty Lessons Learned: 1)face-to-face interview should accompany even a “document review” 2)We need an MD to diagnose

41. Case #2: Post-Conviction Appeal (ineffective assistance of counsel) – South Carolina, 2006 Trial Date: 2002 IQ: VIQ = 94, PIQ = 106, FSIQ = 99 Referral Question: Was there sufficient information in the 2002 trial record to support an FASD diagnosis in 32-year-old man convicted of Murder 1? Defense experts: Dr. Fred Bookstein, PhD (MRI analysis) Dr. Richard Adler, MD (diagnosis) Dr. Natalie Brown, PhD (lifelong functional assessment, maternal drinking, nexus)

42. Case #2: Case Outcome: PCR hearing on hold pending ruling from South Carolina Supreme Court on another matter Lessons Learned: 1)We need a neuropsychologist to test for current, standardized evidence of neurological impairment!

43. Case #3: Sentencing Phase- California, 2007 Referral Question: Was 20-year-old defendant’s offense conduct affected by an FASD in this Murder 1 case (victim was a policeman shot in line of duty)? IQ: VIQ = 100, PIQ = 92, FSIQ = 97 Defense experts: Dr. Fred Bookstein, PhD (MRI analysis) Dr. Paul Connor, PhD (neuropsychological testing) Dr. Richard Adler, MD (diagnosis) Dr. Natalie Brown, PhD (lifelong functional assessment and nexus*)

44. Case #3: Case Outcome: convicted of Murder 1 / death sentence Lessons Learned: 1)We need to form a STRUCTURED diagnostic process that provides complete functional assessment to the diagnostician (an M.D.) prior to his assessment (in this case example, the diagnosis occurred prior to the lifelong functional assessment) 2)ALL members of team (ideally) should testify about respective findings in order to adequately explain & maintain integrity of complex assessment process 3)Nexus MUST be addressed in testimony 4)MRI and Admissibility Issues (i.e. Frye/Daubert) 5)MRI/corpus callosum analysis unnecessary (but sometimes helpful) for diagnosis

45. Outcome: FASD Experts PsychologistNeuro- psychologist PsychiatristJudicial/ Legal Consultant Lifelong functional assessment, maternal drinking Current functional assessment Conduct physical, photo analyses & review functional assessments  diagnosis Legal guidance re: forensic issues & legal strategy DIFFERENTIAL DIAGNOSIS REPORT Consult w/ Defense Team TESTIMONY

46. Psychologist’s Role (FASD Experts) ElementCriterion Maternal Drinking Confirmed vs. Unconfirmed CNS Functional Deficits Cognitive deficits: 2 s.d.’s below mean on IQ test Neurodevelopmental deficits: 1 s.d. below mean in > 3 domains

47. CNS Functional Domains per CDC (2004) DomainCriterion Cognition (IQ)< 2 nd percentile (2 s.d. below mean) Learning deficits< 16 th percentile (1 s.d. below mean) Motor skills< 16 th percentile (1 s.d. below mean) Attention< 16 th percentile (1 s.d. below mean) Executive functioning< 16 th percentile (1 s.d. below mean) Social skills< 16 th percentile (1 s.d. below mean) Memory< 16 th percentile (1 s.d. below mean) Pragmatic language< 16 th percentile (1 s.d. below mean) Other< 16 th percentile (1 s.d. below mean)

48. School Record Review Standardized IQ testing Standardized achievement tests Standardized behavioral assessment Documented evidence of sub- standard performance compared to IQ-based expectations

49. Psychological Testing Subject: Gudjonsson Suggestibility Scale Competency Assessment Personality Testing (differential dx) SCL-90-R (differential dx) Malingering Assessment Collateral informants: Behavioral Rating Inventory of Executive Functions-Adult (executive functioning) Fetal Alcohol Behaviors Scale (FABS)

50. Psychological Assessment: Differential Diagnosis Environmental trauma/neglect  PTSD Substance abuse (comorbidity ~ 30%) Mental illness including ADD/ADHD (comorbidity > 90% of individuals with FASD) Oppositional/Defiant Disorder, Conduct Disorder  Personality Disorder Malingering

51. Neuropsychologist’s Role (FASD Experts) ElementCriterion Functional Cognitive deficits: 2 s.d.’s below mean on IQ test Neurodevelopmental deficits: 1 s.d. below mean in > 3 domains

52. Medical Doctor’s Role (FASD Experts) ElementCriterion Structural Face / Growth Head circumference < 10 th percentile Abnormal brain on CT/MRI Neurological Motor problems, seizures not due to postnatal insult, soft signs

53. Legal Director’s Role (FASD Experts) Consultation with FASD Experts team re: forensic issues pertinent to each case Consultation with Defense Team re: legal issues

54. FASD Experts’ Protocol: Forensic Application of The Scientific Method Procedural Integrity 1)Structured case initiation: Program Director 2)Explicit written retainer agreements with each Team member 3)Consultation from FASD Experts’ Legal Advisor Judge Wartnik 4)Standardized (yet flexible) assessment process 5)Clear division of labor/unique contributions from each Team member 6)Reliance on external experts for structural/neurological deficits 7)Standardized tests with published norms and known reliability/validity 8)Reliance in record review on observable behavior 9)Group consultation (including legal expertise) and consensus

55. FASD Experts Protocol Empirically-based Criteria CDC, 2004 IOM, 1996 Reliability Enhancement malingering assessment informant selection criteria differential diagnosis Evidentiary Compliance relevance reliability (testable, peer-reviewed/published, known error rate, generally accepted in scientific community) Frye: evidence must have general acceptance in relevant scientific community Daubert: 2-pronged test of evidence admissibility

56. Why do we go to all this trouble? Adversarial context “Heinous Crimes” / unsympathetic to a trier of fact FASD isn’t “intuitively obvious” to trier of fact Lack of extensive forensic history with FASD Difficulty of relating scientific information to judges/lay juries Absence of FASD in DSM-IV-TR Axis I FASD Experts is unique  no prior established assessment procedure for adults

57. FASD Experts: Preliminary Success Reverse Waiver: 15 y/o remanded back to juvenile court in Murder -2 case (WA; 2008)  PRECEDENT SETTING Probation Violation: originally sentenced to an “indeterminate sentence,” judge eliminated requirement that def complete SSOSA sex offender treatment and permitted him to enroll in DDD community protection program (WA; 2008) Felony Harassment: prosecutor agreed to reduce charges to misdemeanor harassment (WA; 2008) Arson 2: FAS/MR diagnosis resulted in juvenile being found incompetent to stand trial (WA; 2008)  PRECEDENT SETTING Arson 1: downward departure from standard range (WA; 2008) Attempted Child Enticement/Molest: jury found def w/ FAS had a “mental defect” but convicted anyway (WI; 2008) Sexual Assault: low end of range on prison sentence Post-conviction habeas: judge granted habeas petition for death row inmate (NJ; 2006) Vehicular Homicide: Extraordinary sentence down (WA; 2008)

58. Problems We’ve Encountered

60. “Divide and Conquer” approach from defense team

62. Problems We’ve Encountered “Divide and Conquer” approach from defense team Ignoring the nexus

63. Problems We’ve Encountered “Divide and Conquer” approach from defense team Ignoring the nexus Defendant resistance to “mental health” defense

65. Problems We’ve Encountered “Divide and Conquer” approach from defense team Ignoring the nexus Defendant resistance to “mental health” defense “Doing it on the cheap” approach from defense team

67. Problems We’ve Encountered “Divide and Conquer” approach from defense team Ignoring the nexus Defendant resistance to “mental health” defense “Doing it on the cheap” approach from defense team “Reluctant warriors”

68. Summary: Forensic FASD Assessment = Benefits Beyond Justice Proactive, knowledgeable judges who understand the profound effects on executive functioning Knowledgeable attorneys who recognize the red flags and take initiative Interventions: not just a diagnosis but a solution

69. In Conclusion Forensic assessment of FASD has produced success in multiple legal arenas The word is spreading slowly It’s lonely out here - join us!

70. Paul Connor, Ph.D. Neuropsychological Director

71. 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 Identify 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

72. CDC Guidelines Confirmed prenatal alcohol exposure Facial Dysmorphology Smooth Philtrum Thin upper lip Small palpebral fissures Growth Deficits Confirmed height, weight or both below 10 th percentile at one point in time CNS Abnormalities Structural Head circumference below 10 th percentile Evidence of brain abnormalities in imaging Neurological impairments And /or…

73. CDC Guidelines Functional Deficits – IQ 2 SD below average – Deficits 1 SD below average in at least 3 domains Cognitive or developmental deficits Executive functioning deficits Motor functioning delays Problems with attention or hyperactivity Social skills Other, such as sensory problems, pragmatic language problems, memory deficits, etc.

74. Neuropsychological Outcomes of FAS/FAE Intelligence Achievement Motor Skill Attention Learning/Memory Adaptive Functioning Executive Function -Problem Solving -Concept Formation -Fluency -Working Memory

80. Executive Functions Are A Group of Cognitive Abilities Self-Regulation of Behaviors Sequencing of Behaviors Cognitive Flexibility Response Inhibition Planning Organization of Behavior A “Future-Oriented” Process Goal Directed Delayed Gratification An Integrative Process Perception Attention Memory Motor General Intelligence

81. Studies in Children and Adolescents with FASD Kodituakku and colleagues (ACER, 1995) 10 subjects with FAS/FAE, 10 controls mean age 13 Fewer categories and more perseverative errors (WCST) Generated fewer words (COWAT) Difficulty with complex planning problems (PPT) Mattson and colleagues (ACER, 1999) 10 subjects with FAS, 8 PEA, 10 controls mean age 11 D-KEFS (Trails, Stroop, Tower, Word Context) Deficits in: Planning Response Inhibition Abstract Thinking Flexibility Deficits not related to Diagnosis

82. Studies in Children and Adolescents with FASD Coles and colleagues (ACER, 1997) Children with FAS, ADHD, controls WCST FAS had fewer categories completed than either controls or ADHD Carmichael Olson and colleagues (ACER, 1998) 9 children with FAS, 52 IQ similar controls, age 14-16 Higher percentage of errors Fewer categories completed Non rule based errors Perseverative Kopera-Frye and colleagues (Neuropsychologia, 1996) Adolescent and Adults with FAS/FAE Cognitive Estimation Test More bizarre responses

83. Overlap Between Executive Functions and Intelligence In 1996 Martha Denckla described a complex overlap between EF and IQ Performance IQ with Fluid Intelligence and Timed Tasks Verbal IQ with Crystallized Intelligence However, very few studies of EF have considered IQ effects This study addressed IQ involvement with EF in the presence of prenatal alcohol damage Direct Effects of Prenatal Alcohol on EF tasks Indirect Effects of Prenatal Alcohol as Mediated by IQ

84. Executive Function Measures Wisconsin Card Sorting Test (WCST) Cognitive Estimation (CE) Controlled Oral Word Association Test (COWAT) Ruff’s Figural Fluency (RFF) Trail Making Test (Trails) Stroop Color-Word Test (Stroop) Consonant Trigrams Test (CTT) Digit Span (DS) California Verbal Learning Test (CVLT) (Clustering, Intrusions, Perseverations)

87. Motor Coordination Battery Denckla Motor Coordination Test (DNCT) 5 Tasks of finger, hand, and foot coordination, manually administered Finger Sequencing Test (FS) 3 tasks of finger coordination, computer administered Hand Steadiness Test (HST) A task measuring tremor by inserting a stylus into a hole and attempting to not touch the sides Dynamic Balance (DB) Requires the subject to maintain balance on a free moving “teeter-totter” board

89. Neurobehavioral Battery Attention/Memory Tests Continuous Performance Test (CPT) Talland Letter Cancellation Test (LCT) Attention Process Training (APT) Stepping Stone Maze (SSM) California Verbal Learning Test (CVLT) Executive Functioning Wisconsin Card Sorting Test WCST Stroop Color-Word Test (STROOP) Consonant Trigrams Test (CTT) Controlled Oral Word Association Test (COWAT) Ruff’s Figural Fluency Test (RFF) Cognitive Estimation (CE) Information Processing Wechsler Adult Intelligence Scale – Revised (WAIS-R) Wide Range Achievement Test – Revised (WRAT-R) Arithmetic Word Attack (WA) Spatial-Visual Reasoning Task (SVRT) General Brain Damage Trail Making Test (TRAILS) Rey-Osterreith Complex Figure Test (RCFT)

91. “Pathognomonic” Indicators From Adult Neurobehavioral Study ControlsFAEFAS (n=30)(n=30)(n=30) Stepping Stone Maze (SSM) Could not reach criteria 0 4 7 Tried to move off maze board more 0 6 11 than once Wisconsin Card Sorting Test (WCST) Could not complete all 6 categories 1 9 14 Failed to maintain set more than once 4 9 7 Writes with Left Hand 1 4 9

93. Full Neurobehavioral Battery Attention/Memory Tests Continuous Performance Test (CPT) Talland Letter Cancellation Test (LCT) Attention Process Training (APT) Stepping Stone Maze (SSM) California Verbal Learning Test (CVLT) Executive Functioning Wisconsin Card Sorting Test WCST Stroop Color-Word Test (STROOP) Consonant Trigrams Test (CTT) Controlled Oral Word Association Test (COWAT) Ruff’s Figural Fluency Test (RFF) Cognitive Estimation (CE) Information Processing Wechsler Adult Intelligence Scale – Revised (WAIS-R) Wide Range Achievement Test – Revised (WRAT-R) Arithmetic Word Attack (WA) Spatial-Visual Reasoning Task (SVRT) General Brain Damage Trail Making Test (TRAILS) Rey-Osterreith Complex Figure Test (RCFT) Motor Coordination Denckla Motor Coordination Test (DNCT) Finger Sequencing Test (FS) Hand Steadiness Test (HST) Dynamic Balance (DB)

94. However Financially not possible to conduct all of this testing Several tests are experimental – Need to have normative samples to compare with

95. So Created a battery that incorporated many of the most salient clinical tests based on 30+ years of research experience – IQ – Achievement – Learning and Memory (verbal and visual) – Attention – Motor Coordination – Executive Functions – Psychiatric Symptoms – Adaptive behaviors

96. IQ and Academic Tests Wechsler Adult Intelligence Scale – 3 rd Edition (WAIS-III) (Now WAIS-IV) – Generalized IQ Woodcock Johnson – 3 rd Edition (WJ- III) – Variety of academic tasks (reading, spelling, arithmetic, passage comprehension, academic knowledge)

97. Memory and Attention California Verbal Learning Test (CVLT) – List learning task with repeated trials and delayed recall/recognition Rey Complex Figure Test (RCFT) – Nonverbal spatial memory task Green’s Word Memory Test (WMT) – Assessment of effort or “malingering” Conner’s Continuous Performance Test (CPT) – Sustained attention and impulsivity

98. Motor Coordination Grooved Pegboard (GP) – Speeded eye-hand coordination Finger Tapping (FT) – Speeded finger movements Grip Strength (GS) – Strength

99. Executive Functioning Trail Making Test (TMT) – Visual scanning and tracking Controlled Oral Word Association Test (COWAT) – Generation of verbal information Ruff’s Figural Fluency Test (RFF) – Generation of nonverbal information Stroop Test – Inhibition of responses

100. Executive Functions (cont.) Consonant Trigrams Test (CTT) – Working memory and multitasking Wisconsin Card Sorting Test (WCST) – Planning, hypothesis generation, learning from past mistakes, shifting of hypotheses Tower of London (TOL)/DKEFS Tower – Planning

101. Mental Health and Adaptive Functioning Brief Symptom Inventory/Symptom Checklist 90 – Brief screening for mental health concerns – Not to diagnose individual disorders Vineland Adaptive Behavior Scale (VABS) – Daily living assessment – Communication, daily living skills, socialization

102. Expected 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

103. CDC Guidelines Functional Deficits – IQ 2 SD below average – Deficits 1 SD below average in at least 3 domains Cognitive or developmental deficits Executive functioning deficits Motor functioning delays Problems with attention or hyperactivity Social skills Other, such as sensory problems, pragmatic language problems, memory deficits, etc.

104. The Case of Patient O

105. Areas of Deficit – Variability of functioning (eg. CVLT vs RCFT ) – Non verbal memory – Academics – Executive Functions – Adaptive functioning (not shown) Meets criteria for functional deficits based on CDC

106. Richard Adler, M.D. Medical Director

108. FASD IS A MEDICAL DIAGNOSIS Axis III (General Medical Conditions) in DSM-IV-TR ICD- 9, ICD - 10 Diagnostic criteria – FAS – CDC 2004 – “FASD” – IOM 1996*

109. ELEMENTS IN MAKING THE DIAGNOSIS WHICH UNIQUELY REQUIRE M.D. INVOLVEMENT Medical chart review

112. ELEMENTS IN MAKING THE DIAGNOSIS WHICH UNIQUELY REQUIRE M.D. INVOLVEMENT Medical chart review Physical examination (general and specialized)

115. ELEMENTS IN MAKING THE DIAGNOSIS WHICH UNIQUELY REQUIRE M.D. INVOLVEMENT Facial Photographic Analysis (current and historical) Ancillary testing (ordering de novo, review of prior) – MRI/DTI – EEG – Other

116. Model-guided Segmentation of Corpus Callosum in MR Images Arvid Lundervold 1, Nicolae Duta 2, Torfinn Taxt 1 & Anil K. Jain 2 - 1999

119. DIAGNOSTIC FINE POINTS Comorbidity/concurrent conditions - high in FASD : ADHD Head trauma Substance abuse FAS is “diagnosis of exclusion” – Must address why the picture is not better accounted for by other elements – Not “paint by numbers” – requires a diagnostic synthesis

120. Pediatricians' Knowledge, Training, and Experience in the Care of Children With Fetal Alcohol Syndrome “Whereas 62% felt prepared to identify and 50% felt prepared to diagnose, only 34% felt prepared to manage and coordinate the treatment of children with fetal alcohol spectrum disorders. ” Sheila Gahagan, MD, MPH, Tanya Telfair Sharpe, PhD, Michael Brimacombe, PhD, et al. PEDIATRICS, Vol. 118 No. 3, September 2006, pp. e657-e668

122. FAMILIARITY WITH FORENSIC NUANCES General forensic background (familiarity with procedural issues, terminology, report standards) – Standard for “reasonable medical certainty” – Distinction between forensic and clinical roles – Licensing requirement in venue Admissability/evidentiary issues of data relied upon: Frye Daubert Standard unique to the venue

123. DIFFERENTIAL DIAGNOSIS

125. PHYSICAL EXAMINATION: PRACTICAL ISSUES Reasonably private room/use of infirmary/clinic (examination table) Examinee not in handcuffs, ankle cuffs Ability to turn down lights Gown Access to scale (height, weight) Clearance to bring diagnostic tools Approval for use of digital camera Arranging for examinee to be clean-shaven

128. ROLE OF M.D. IN THE FORENSIC PROCESS Testimony: benefit of repetition, different “teaching” styles, strengths Opportunity to have M.D. generate diagnosis independently versus collaboratively Ability to incorporate, testify to neuropsychological or other findings. Potential to circumscribe role to clinical diagnosis Ability to jettison a “bruised” witness Liaison with other medical professionals

129. WILL ANYONE WITH AN M.D. DO?

130. Hon. Anthony P. Wartnik, J.D., Judge (Retired) Legal Director

131. THE STARTING POINT 1.“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 Queen’s L.J. 135, at p. 140

132. 2.-“This is a fundamental condition upon which criminal responsibility reposes. Individuals have the capacity to reason right from wrong, and thus choose between right and wrong. It is these dual capacities – reason and choice – which give the moral justification to imposing criminal responsibility and punishment on offenders. - If a person can reason right from wrong and has the ability to choose right from wrong, then attribution of responsibility and punishment is morally justified or deserved when that person consciously chooses wrong.” R v. Ruzic, 153 C.C.C. 1, Supreme Court of Canada.

133. 3.Getting rid of the blame game: “Evidence concerning certain alcohol-related conditions has long been admissible during the guilt phase of criminal proceedings to show lack of specific intent.... (I)f evidence of a self-induced condition such as voluntary intoxication is admissible, then so too should be evidence of other commonly understood conditions that are beyond one’s control, such as epilepsy.... Just as the harmful effect of alcohol on the mature brain of an adult imbiber is a matter within the common understanding, so too is the detrimental effect of this intoxicant on the delicate, evolving brain of a fetus held in utero. As with ‘epilepsy, infancy or senility,’.... we can envision few things more certainly beyond one’s control than the drinking habits of a parent prior to one’s birth. We perceive no significant legal distinction between the condition of epilepsy... And that of alcohol-related brain damage in issue here—both are specific, commonly recognized conditions that are beyond one’ control.” Dillbeck v. State, 643 So. 2 nd 1027 (Fla.)

134. GETTING RID OF MYTHS 1.FASD is a temporary condition, 2.FASD is a diagnosis or condition lacking in objective findings, 3.FASD is a condition lacking in scientific support, 4.FASD is a diagnosis conceived of by lawyers and or mental health care providers to excuse criminal behavior, 5.FASD cannot be diagnosed without direct evidence that the mother drank during pregnancy.

135. FACTS 1.FASD is a condition involving behavioral problems rooted in organic brain damage, permanent organic brain damage, 2. FASD is supported by over 30 years of scientific study and research with indisputable objective findings, 3.FASD is a condition, which if not diagnosed and treated at the earliest possible stages of child development, will likely lead to costly and devastating secondary disabilities,

136. FACTS 4. Some offenders with FASD will not be held responsible for their criminal actions due to incompetency or insanity, 5.Some offenders with FASD will be held responsible for their criminal actions but will receive consideration due to diminished capacity, 6.Some offenders with FASD will be held responsible for their criminal actions and will receive long term incarceration due to the need for community safety and the inability to successfully treat the offender in the community (e.g.), crimes of violence and or chronic recidivistic behavior,

137. FACTS 7. Modern diagnostic standards do not require confirmed prenatal exposure to alcohol in all cases to make a diagnosis of FAS. Circumstantial evidence to support a finding of FAS may include * mother’s abuse of alcohol prior to conception * the birth of other children alive around the time the subject was born but who died either shortly before or shortly after birth * a brain condition that is consistent with the subject having suffered from alcohol exposure in utero.

138. 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

139. 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

140. 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

141. 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

142. 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 didn’t investigate client’s background, including family, criminal history, substance abuse and mental health history

143. 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.

144. 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 counsel’s knowledge of drug and alcohol use by client’s mother, his attempt to introduce such facts as testimony together with counsel’s 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

145. 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 Rompilla’s 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)

146. 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

147. WHY THE TEAM DIAGNOSTICS APPROACH? There is power in numbers -multi-disciplinary approach: *Medical diagnosis alone only yields an answer as whether the client has FASD *The other team members, the psychologist and neuropsychologist can provide important information regarding the client’s volitional control and cognitive functioning limitations, co- morbidities, etc. *The combined forensic team testimony leaves very few important questions unanswered *It is the best vehicle for the necessary ongoing refinement of the protocols.

148. 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 client’s medical records and social history and has not physically examined the client

149. 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 Justice’s 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

150. 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.

151. 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

152. 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 defendant’s moral culpability.” 365 F.2d at 723

153. FASD AND MENTAL HEALTH Mental health problems are common among those with FASD *94% may have at least one co- morbid diagnosis in adulthood *(52% depression, 43% suicide threats, 33% panic attacks,29% psychosis, 23% suicide attempts, 40% ADHD

154. TROUBLE WITH THE LAW *Approximately 60% of all individuals with FASD get in trouble with the law and about 40% end up incarcerated or hospitalized *Because FASD impairs ability to function in society, the impact of contact with the criminal justice system has great potential to either aggravate or ameliorate their impairments

155. TROUBLE WITH THE LAW (Cont.) *The organic brain deficits caused by fetal alcohol exposure result in difficulty associating cause and effect, learning from experience, generalizing to new situations, and internalizing principles of behavior - This results in inconsistent and erratic behavior, and affects the ability to explain and justify their actions

156. FASD AND SPECIAL ATTENTION BY THE COURT *Some people committed crimes they don’t understand *Some people are accused of crimes they didn’t do *Some people have been convicted of crimes that never happened *Some people have been convicted of crimes and are doomed to getting caught in the criminal justice system’s revolving door unless you recommend or do things differently

157. DO THE FACTS JUSTIFY AN FASD ASSESSMENT? *Ask questions to determine mom’s alcohol use during pregnancy *Determine the defendant’s behavior from birth to the present *Identify the criminal history and the type(s) of crime *Determine cognitive and functional abilities and limitations *When appropriate, seek/order an evaluation by experts who are able and skilled in the diagnosis of FASD, ADHD, ADD, and other prevalent mental conditions and disorders

158. BEYOND FASD DIAGNOSIS: SO WHAT? The fact that a person has FASD may bear on the prosecution and or sentencing in the following ways: *It may result in a finding of incompetency to commit the crime or it may result in a finding of incompetency to knowingly and intelligently waive the right against self-incrimination *It may reduce culpability of the criminal conduct *It will require different measures to reduce the chances of recidivism, future criminal behavior *It usually means significant difficulties functioning in adult society, problems which a sentencing may aggravate or alleviate * It means that your diagnostic team needs to be skilled both as a clinicians and in forensics as their testimony will likely make a difference in the outcome

159. WHO ARE THE PLAYERS? The following are the individuals to whom diagnosis is important in addition to the diagnostic team: The client The defense counsel The prosecuting Attorney The trial judge The probation and parole officers Persons in a position to mentor, advise and or advise the client

160. TEN SENTENCING PRINCIPLES FOR PEOPLE WITH FASD 1.Consider whether the disability involves reduced culpability and thus warrants a less severe sentence 2.Avoid lengthy (or any) incarceration 3.Seek or impose milder but targeted sanctions 4.Seek or impose a longer term of supervision 5.Use the judge’s position of authority (stature) with the offender

161. TEN SENTENCING PRINCIPLES FOR PEOPLE WITH FASD (Cont.) 6.Get a sponsor or advocate for guidance and assistance 7.Create structure in the offender’s life 8.Write out, simplify and repeat rules and conditions of supervision 9.Make sure the probation officer understands FASD 10.Don’t overreact to probation violations – particularly status offenses

162. FASD Experts: Future Directions Increasing capacity: Training/consultation with other forensic groups Continuous refinement of our protocol (e.g., a priori hypotheses re: potential findings) Adding additional consulting specialists as needed (e.g., radiologist) Research: Suggestibility, FABS

163. FASD EXPERTS – CONTACT INFO FASD Experts – www.fasdexperts.comwww.fasdexperts.com a. Dr. Natalie Novick Brown, Ph.D, Program Director Licensed Psychologist 12535 – 15 th Ave. NE, Suite 201 Seattle, WA 98125 Office – 206.441.7652 Cell – 425.275.1238 Fax – 888.807.5991 Email – fstnat@yahoo.comfstnat@yahoo.com Web – www.Dr.NatalieBrown.netwww.Dr.NatalieBrown.net Assistant – Ms. Christine Simmons

164. FASD EXPERTS – CONTACT INFO (Cont.) b.Dr. Paul Connor, Ph.D., Neuropsychological Director Licensed Psychologist & Clinical Neuropsychologist 22517 – 7 th Ave. South Des Moines, WA 98198 – 6820 Phone – 206.940.1106 Fax – 206.870.9081 Email – Paul@ConnorNeuropsychology.comPaul@ConnorNeuropsychology.com Web – www.ConnorNeuropsychology.comwww.ConnorNeuropsychology.com

165. FASD Experts – Contact Info (Cont.) c. Richard S. Adler, MD, Medical Director Forensic and Clinical Psychiatry 1700 Seventh Avenue, Suite 210 Seattle, WA 98101 Office – 206.624.3800 Cell – 206.793.1453 Fax – 206.624.3801 Email – richadler@msn.comichadler@msn.com Web – www.RichardAdlerMD.comwww.RichardAdlerMD.com Assistant – Ms. Ann Lippman-Cepeda Email - officemanager@forensicclinicalpsychiatry.com officemanager@forensicclinicalpsychiatry.com

166. FASD Experts – Contact Info (Cont.) d. Hon. Anthony P. Wartnik, J.D., Judge (Retired), Legal Director 8811 SE 55 th Pl. Mercer Island, WA 98040 Office – 206.232.2970 Cell – 206.290.0451 Fax – 206.232.2970 Email – TheAdjudicator@comcast.netTheAdjudicator@comcast.net