2010 appellate judicial attorneys institute  october 27, 2010 burlingame, ca

2010 Appellate Judicial Attorneys Institute October 27, 2010Burlingame, CA

FETAL ALCOHOL SPECTRUM DISORDERS: FROM COMPETENCY TO STAND TRIAL

TO CLEMENCY

Richard S. Adler, M.D.Natalie Novick Brown, Ph.D.

www.FASDExperts.com Seattle, WA

http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/ accessed October 26, 2010.

FASDFASD

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

BRANDON RHODE

Neuropsychological testing – organic impairment attributed to substance use.

FASD suspected, but mother denied alcohol use “prior to pregnancy”

Death sentence

BRANDON RHODE

State Habeas appeal ca. 2006 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

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

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.

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

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

“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 SYNDROMECAMBRIDGE, MA: HARVARD UNIVERSITY PRESS, 2005, 154.

CALIFORNIA GOVERNOR PETE WILSON, 1992IN RE: THE CLEMENCY APPEAL OF

ROBERT ALTON HARRIS

“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 SYNDROMECAMBRIDGE, MA: HARVARD UNIVERSITY PRESS, 2005, 154.

CALIFORNIA GOVERNOR PETE WILSON, 1992IN RE: THE CLEMENCY APPEAL OF

ROBERT ALTON HARRIS

JEFFREY LANDRIGAN

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 TERMTRIAL JUDGE NEVER WAS TOLD OF HIS BRAIN DAMAGE

Oct. 21, 2010 A. Bates Butler III , Former US Attorney for Arizona

The Arizona Republic

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 TERMTRIAL JUDGE NEVER WAS TOLD OF HIS BRAIN DAMAGE

Oct. 21, 2010 A. Bates Butler III , Former US Attorney for Arizona

The Arizona Republic

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

JUST LIKE MENTAL RETARDATION, JUST LIKE MENTAL RETARDATION, FASD MUST BE PRESUMED FASD MUST BE PRESUMED

TO BE PRESENT TO BE PRESENT UNTIL SHOWN TO BE OTHERWISEUNTIL SHOWN TO BE OTHERWISE

SUGGESTIBILITY

GUDJONSSON SUGGESTIBILITY SCALE STORY 2 (GSS-2)

GSS2 Subscale

FASD Sample (n=7)

Mean/SD

UKGeneral

Population Mean/SD

UK Court Referrals

Mean/SD

Immediate Recall 7.8/6.6 19.7/6.1 *** 10.9/7.1

Delayed Recall 6.1/5.3 18.4/6.0 *** 9.2/6.9

Yield 1 7.9/4.2 4.5/3.6 6.5/4.1

Yield 2 9.3/2.0 5.5/4.0 *** 7.9/4.6

Shift 9.9/3.2 3.0/3.0 *** 4.4/3.6 ***

Total Suggestibility 17.7/4.9 7.5/5.3 *** 10.9/6.0 **

* = Significant at < .05** = Significant at < .01*** = Significant at <.005

HIGH INDEX OF SUSPICIONHIGH INDEX OF SUSPICION

DILIGENT MITIGATION EFFORTSDILIGENT MITIGATION EFFORTS

STEP-WISE EXPERT CONSULTATIONSTEP-WISE EXPERT CONSULTATION

SYLLABUSSYLLABUS

1.1. Novick Brown: FASD “Red Flags”Novick Brown: FASD “Red Flags”

2.2. Novick Brown: FASD throughout the legal Novick Brown: FASD throughout the legal

process – theory and practice/ case examplesprocess – theory and practice/ case examples

3.3. Adler: Practical “Action Steps”Adler: Practical “Action Steps”

4.4. Adler: Summary/ Q & AAdler: Summary/ Q & A

NATALIE NOVICK BROWN, PH.D.NATALIE NOVICK BROWN, PH.D.

SCREENINGSCREENING& RED FLAGS& RED FLAGS

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

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

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)

WHAT WHAT DOESN’TDOESN’T MATTER MATTER

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 midfaceLow nasal bridge

Short noseMinor ear anomalies

Micrognathia

1. Short palpebral

fissures

2. Flat philtrum

3. Thin upper lip

Streissguth (1994)

FAS Family Resource Institute

WHAT WHAT DOESDOES MATTER MATTER

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

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

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)

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)

“FASD CRIMES”

General crimes (60%) shoplifting/theft (36%) burglary (15%) DV (15%) assault (17%)

Sexual crimes (50%) promiscuity (26%) sexual advances, including assault (18%)

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

COMPETENCY TO STAND TRIALCOMPETENCY TO STAND TRIAL

State v. Jesse James Scholler, Snohomish County Superior court Case Nos. 08-8-00426-1, 08-9-00443-1

17 y/o male charged with 2 cts Arson 1

Judge Thomas J. Wynne (August 6, 2008)

"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….

“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."

SENTENCINGSENTENCING

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

SENTENCING

CAPITAL MURDER

LWOPP (TX, 2010) LWOPP (NV, 2009, 2010)

SENTENCING:Vulnerable Victim

SEXUAL ASSAULT (CO, 2008) Enhanced sentence for perpetratorSEXUAL ASSAULT (OR, 2008) Plea bargain

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)

WAIVER/REVERSE WAIVERWAIVER/REVERSE WAIVER

RICHARD S. ADLER, M.D.RICHARD S. ADLER, M.D.

ACTION STEPSACTION STEPS

FASD CHECKLISTFASD CHECKLIST

CHILDHOOD PHOTOGRAPHSCHILDHOOD PHOTOGRAPHS

DIGITAL PHOTOGRAPHDIGITAL PHOTOGRAPH

INITIAL REVIEW OF INITIAL REVIEW OF PRE-EXISTING TESTINGPRE-EXISTING TESTING

NEUROPSYCHOLOGICAL PROFILE: JE

ACQUISITION OF DOCUMENTSACQUISITION OF DOCUMENTS

IDENTIFYING SUITABLE SOURCES IDENTIFYING SUITABLE SOURCES OF HISTORYOF HISTORY

NEXUSNEXUS

COST & COST & TIMETABLESTIMETABLES

NEURORADIOLOGICAL DATA

" NEUROIMAGING IS NEVER THE FIRST OPTION AND IT SHOULD ONLY

BE DONE ADVISEDLY."

APRIL 23, 2010HABEAS ASSISTANCE & TRAINING

COUNSEL PROJECTNATIONAL SEMINAR

SEATTLE, WA

JOHN BLUME:

A PICTURE IS A PICTURE, NOT A PANACEA

NormalDefendant

DIFFUSION TENSOR IMAGING

HOSKINS V. STATE702 So.2d 202 (Fla. 1997)

• Johnny Hoskins convicted of 1st 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, Arizona2007

http://www.law.asu.edu/files/Centers_and_Programs/LST/Conferences_&_Events/brainscan/Marchant.pdf

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. CandidateSandra Day O’Connor College of Law, Arizona2007http://www.law.asu.edu/files/Centers_and_Programs/LST/Conferences_&_Events/brainscan/Marchant.pdf

THE RIGHT TO DIAGNOSIS BY EXPERTS AND RELATED ISSUES

1. Castro v. Oklahoma, 71 F.3d 1502 (10th Cir. 1995), p. 10 (Court Appointed and publicly paid for).

2. Lambert v. Blodgett, 248 F.Supp.2d 988 (E.D. WA 2003) p. 9 (Duty to provide experts with meaningful information).

3. Silva v. Woodford, 279 F.3d 825 (9th 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).

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.3rd 706 (9th 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.”)

HOW THINGS GO WRONG

HOW THINGS GO RIGHT

SUMMARYSUMMARY

FASD EXPERTSCONTACT INFORMATION

www.FASDExperts.com

1700 Seventh Avenue, Suite 210Seattle, WA 98101

(206) 624-3800