fasd: application of the scientific method to the forensic setting

FASD: APPLICATION OF THE SCIENTIFIC METHOD TO THE FORENSIC SETTING

Texas Criminal Defense Lawyers Association

Courtyard Marriott DowntownAustin, TX

Thursday, February 25, 2010 9:00 – 2:30 pm

NATALIE NOVICK BROWN, PH.D.PROGRAM DIRECTOR

FASD ExpertsFASDexperts.com

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

SCHEDULE

• Introduction/Overview (NNB): 9:45 – 10:15

• Break: 10:15 – 10:30• Evidentiary Innovations (RSA):

10:30 – 11:00• Neuropsychological Testing (PDC):

11:00 – 11:25• State v. Eugene Nunnery (NNB):

11:25 – 12:00• Lunch: 12:00

FASD Experts: Multidisciplinary Forensic

Assessment Team

Unique multi-stage approach to FASD assessment within the forensic context by a specialized, coordinated ensemble:

•Multiple legal contexts: criminal, civil, post-conviction

•Defense and Prosecution (i.e. victims with FASD)

•National scope

Sir Isaac Newton

“If I have seen farther it is by standing on the shoulder of giants.”

Dr. Ann Streissguth

FASD Is Relevant in a Forensic Context Because of CNS Abnormalities

Brain damage causes cognitive-behavioral deficits which significantly increase risk of illegal behavior.

PREVALENCEWhy Is FASD Relevant in a Forensic Context?

Secondary Disabilities100

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

LawConfinement

Inappropriate Sexual Behavior

Alcohol & Drug

Problems

Dependent Living

Problems with Employment

Ages 6 - 51 Ages 21 - 51

Tertiary Disability(Legal Arena)

Complications in legal matters due to inadequate identification and/or consideration of FASD.

Death penalty in Capital Murder cases is the most extreme tertiary disability possible in the legal arena.

FAS Family Resource Institute

FORENSIC RED FLAGS FOR FASD

TYPICAL FASD-LIKE FEATURES AT INTERVIEW WITH CLIENT

• Short stature (not always)• Immature and naive• Eager to please or stubbornly resists the

obvious• Can’t provide coherent, detailed narrative• Can’t concentrate• Doesn’t add much• Doesn’t seem to remember what you tell

him from appointment to appointment

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

TYPICAL FASD-LIKE FEATURES AFTER 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)

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 don’t “make sense” (e.g.,

stealing something of little value)• Oblivious to risk• Impulsive, opportunistic crimes• Probation violations

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)

RICHARD S. ADLER, M.D. MEDICAL DIRECTOR

FASD EXPERTS’INNOVATIONS

(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 DirectorRichard Adler, MD – Medical Director

Paul Connor, PhD – Neuropsychology Director

3rd International Conference on Fetal Alcohol Spectrum Disorder

Victoria, BC, CanadaMarch 11, 2009

GRAPHIC PRESENTATION OFTHE DEFENDANT’S

NEUROPSYCHOLOGICAL PROFILE

PRESENTATION OF FUNCTIONAL IMPAIRMENTS IN

DEFENDANT’S HISTORY

FASDEx Secondary Disabilities Scale(Likert Scale: 0=not at all 2 =very much so)

SECONDARY DISABILITY (FASD Incidence) E.N.?

Co-occurring mental health disorders (94%) 2

Disrupted school experience (43%) 1

Confinement (50%) 2

Trouble with the law (60%) 2

Alcohol/drug problems (35%) 2

Inappropriate sexual behaviors (50%) 1

Dependent living (82%) 1

Employment problems (78%) 2

TOTAL 13 / 16 = 81%

PRESENTATION OF THE RELEVANCE OF FASD TO

INSTANT OFFENSE (“THE NEXUS”)

Offense Conduct (Likert Scale: 0=not at all / 2=very much so)

Factor: Offense Conduct E.N.?

Illogical actions w/ high risk of detection 2

Simple offense “plan” 2

Poor escape plan 2

Impulsive conduct in face of unforeseen events (e.g., victim responses)

2

Aggressive over-reaction to unforeseen events 2

More sophisticated co-defendants (if applicable)

1

TOTAL 11 / 12 = 92%

GRAPHIC PRESENTATION OFTHE DEFENDANT’S

FAS-RELATEDFACIAL FEATURES

USE OF MRI, MORPHOMETRIC ANALYSIS & DTI

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.

Proc. Intl. Soc. Mag. Reson. Med. 11 (2003) 2240

NormalDefendant

CAVEAT EMPTOR: A PICTURE IS A PICTURE,

NOT A PANACEA

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

“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

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


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?


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

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

ACCESSIBILITY

COMPREHENSIVE FASD EVALUATIONOUT OF AREA & WITH REPORTS

ELEMENT HOURS COST


ELEMENT HOURS COST

Neuropsychological Testing 27 $6750


ELEMENT HOURS COST


Functional Psychology Evaluation

32 $8000


ELEMENT HOURS COST


Functional Psychology Evaluation

32 $8000

FASD Medical/Diagnostic Evaluation

24 $8500

PAUL CONNOR, PH.DNEUROPSYCHOLOGY DIRECTOR

ROLE OF NEUROPSYCHOLOGYIN THE DIAGNOSIS OF FASD

• Identify pattern of current strengths and weaknessesof 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

FASD “DOWNWARD SLOPE”Streissguth et al., 2004

EUGENE NUNNERY

Intellectual Ability:IQ = 80 (9th %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)

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

NEUROPSYCHOLOGICAL PROFILES

Functioning in Deficit

Functioning within Normal Limits

NEUROPSYCHOLOGICAL PROFILE: RR

NEUROPSYCHOLOGICAL PROFILE: JE

NEUROPSYCHOLOGICAL PROFILE: EJ

NEUROPSYCHOLOGICAL PROFILE: KJ

NEUROPSYCHOLOGICAL PROFILES COMBINED

Possible Outcomes of Neuropsychological Testing

Is testing consistent with FASD?

YES NO

To Drs. Brown and Adler: Is

FASD present?

Are there deficits

despite this?

YES NO

Diagnosis is made

Pattern of deficits

could still be useful to counsel

Counsel may decide not

to use results

YES NO

GUDJONSSON SUGGESTIBILITY SCALE STORY 2(GSS2)

GSS2 Subscale FASD Sample (n=7)

Mean/SD

Norms: General Population Mean/SD (z-score

difference)

Norms: Court Referrals Mean/SD(z-score

difference)

Immediate Recall 5.8/4.1

Delayed Recall 5.6/5.7

Yield 1 8.5/4.2

Yield 2 9.3/2.0

Shift 9.3/3.1

Total Suggestibility 17.8/5.3



Mean/SD


difference)


difference)

Immediate Recall 5.8/4.1 10.9/7.1 (-.7)

Delayed Recall 5.6/5.7 9.2/6.9 (-.5)

Yield 1 8.5/4.2 6.5/4.1 (-.5)

Yield 2 9.3/2.0 7.9/4.6 (-.3)

Shift 9.3/3.1 4.4/3.6 (-1.4)

Total Suggestibility 17.8/5.3 10.9/6.0 (-1.2)



Mean/SD


difference)


difference)

Immediate Recall 5.8/4.1 19.7/6.1 (-2.3) 10.9/7.1 (-.7)

Delayed Recall 5.6/5.7 18.4/6.0 (-2.1) 9.2/6.9 (-.5)

Yield 1 8.5/4.2 4.5/3.6 (-1.1) 6.5/4.1 (-.5)

Yield 2 9.3/2.0 5.5/4.0 (-1) 7.9/4.6 (-.3)

Shift 9.3/3.1 3.0/3.0 (-2.1) 4.4/3.6 (-1.4)

Total Suggestibility 17.8/5.3 7.5/5.3 (-1.9) 10.9/6.0 (-1.2)

NATALIE NOVICK BROWN, PH.D.PROGRAM DIRECTOR

Functional Assessment = Evaluation of Actual Cognitive

and Behavioral Functioning Over the Lifespan

Purpose of Functional Assessment

1) Is there objective evidence of childhood cognitive-behavioral deficits (i.e., 1 or more standard deviations below the mean) consistent with brain damage and FASD?

2) Did FASD influence the offense conduct?

Is Functional Assessment Consistent with FASD?

• Matches IQ level? no FASD

• Doesn’t match IQ level? consistent with FASD

Starting Point

• Defendant’s IQ = 91 (average range)

• Therefore, his cognitive-behavioral functioning should fall in the AVERAGE range unless he meets criteria for an FASD.

FASD doesn’t excuse offense conduct, but it may explain why it happened. That is, it may explain why someone would engage in illogical

behaviors that don’t make sense.

FASD

Because of brain impairment and associated deficits in logic, impulse control, and memory, people with FASDs don’t learn from mistakes, can’t foresee consequences, can’t control urges and impulses, and therefore engage in illogical behaviors that don’t make sense.

It’s as if they have blinders on and can only see one thing:

the goal.

CNS Functional Domains Per CDC (2004)

Domain Criterion

Cognition (IQ) < 2nd percentile (2 s.d. below mean)

Learning deficits < 16th percentile (1 s.d. below mean)

Motor skills < 16th percentile (1 s.d. below mean)

Attention < 16th percentile (1 s.d. below mean)

Executive functioning < 16th percentile (1 s.d. below mean)

Social skills < 16th percentile (1 s.d. below mean)

Memory < 16th percentile (1 s.d. below mean)

Pragmatic language < 16th percentile (1 s.d. below mean)

Other < 16th percentile (1 s.d. below mean)

Learning Disabilities

Learning disabilities mean that a person can’t learn in school and can’t learn from experience. Those with learning disabilities will have substandard achievement test scores in school and will repeat behavioral mistakes over and over because they don’t learn. As teenagers and adults, they will continue to show deficits in their ability to learn from experience.

Language Deficits

• Part of the reason why those with FASD fail to learn is because of impaired ability to understand what they hear and read and impaired ability to communicate what they know.

Visual-Perceptual / Memory Deficits

• Those with visual-perceptual and memory deficits can’t understand and therefore assimilate what they see or experience. They often fail to notice things in their environment and have problems remembering what they do notice. Sequential memory is particularly impaired.

Attention Deficits/Hyperactivity

• Those with attention deficits and hyperactivity have difficulty focusing and concentrating. They are easily distracted and tend to fidget and move around a lot. With hyperactivity comes impulsivity.

Socialization Deficits

• Those with socialization deficits have difficulty perceiving, understanding, and interpreting social cues from others. They are immature because they don’t assimilate and use social skills like others their age. FASD youth often lie and tell tall tales in order to attract and hold attention because they don’t know how to interact normally.

Executive Function Deficits

Executive functioning = self-regulation. EFs involve higher order thinking involved in handling novel situations that are not well-learned. Deficient executive functioning involves:•Inability to resist impulses/temptation•Impaired goal-seeking (blinders!)•Poor sequential thinking (doesn’t foresee consequences)•Failure to learn from mistakes (repeats mistakes over and over)•Failure to perceive effects of behavior and make course-corrections

Case Example

EUGENE NUNNERY3 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.”)

PROSECUTORIAL HISTORY3 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

PROSECUTORIAL HISTORY3 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 conductJury Decision: HUNG JURYJudge’s Decision: LIFE IN PRISON

Functional Assessment: Diagnostic Phase

Cognitive-Behavioral Deficits (standardized school testing)

Diagnostic Criteria per CDC Eugene Nunnery

IQ: 2 s.d.’s < mean NO (4 IQ tests from age 12-17: IQ=71-83)

Learning deficits: *1 s.d. < mean YES (5 achievement tests from age 12-17: 1-2 s.d.’s < mean)

Motor skills: * YES (age 14: 1.5 s.d. < mean)

Attention: * Anecdotal/NOT MEASURED

Adaptive (language): * NOT MEASURED

Adaptive (social): * Anecdotal/NOT MEASURED

Adaptive (daily living): * Anecdotal/NOT MEASURED

Executive functioning: * Anecdotal/NOT MEASURED

Other (memory): * Anecdotal/NOT MEASURED

Cognitive-Behavioral Deficits (need at least 3 per CDC, 2004)

Diagnostic Criteria per CDC Eugene Nunnery (neuropsych test results)

Learning deficits: *1 s.d. < M YES (5 achievement tests from age 12-17: 1-2 s.d.’s < M

Motor skills: * YES (1+ s.d. < M)

Attention: * YES (1+ s.d. < M)

Adaptive (language): * YES (2 - 3 s.d.’s < M)

Adaptive (social): * YES (1 - 2 s.d.’s < M)

Adaptive (daily living): * YES (2 - 3 s.d.’s < M)

Executive functioning: * YES (1 – 5 s.d.’s < M)

Memory: * YES (!+ s.d. < M)

Perceptual skills: * YES (1+ s.d. < M)

Visual-motor integration* YES (1+ s.d. < M)

Diagnostic Criteria for Partial Fetal Alcohol Syndrome (PFAS)

Diagnostic Criteria Eugene Nunnery

CNS: Functional (cognitive-behavioral)

Defined by Data Criterion Met?

Complex pattern of cognitive-behavioral abnormalities that are inconsistent with developmental level and cannot be explained by familial background or environment alone

Learning difficulties, deficits in school performance, poor impulse control, problems in social perception, deficits in higher level receptive and expressive language, poor capacity for abstraction, specific deficits in math skills; or problems in memory, attention or judgment

10 different areas of impairment with deficits > than 1 S.D. on standardized tests (per standardized test results in childhood and in current neuropsychological assessment)

YES

Summary of Functional Assessment

A finding of lifelong deficits in 10 primary functional domains is consistent with FASD.

Such widespread brain damage = profound, widespread damage and explains EN’s profound self-regulation impairments throughout his life.

Functional Assessment: Comparison Phase

FASD-E Indices and Prototypes

• FASD-E indices = ways of categorizing behavioral deficits that stem from similar underlying deficits

• FASD-E prototypes = behavioral outcomes associated with FASDs in the literature

• FASD-E Functional Index = a compilation metric of 5 indices/prototypes typically found in FASDs

FASD-E Functional IndexA priori hypothesis:

If FASD, individual will display at least 60% of the FASD traits in 7 phenotypic (model) categories:

1)Academic Index2)IQ-Learning-Adaptive Triad3) Executive Function Self-Regulation Triad4) Secondary Disability Risk/Protective Factors5) Secondary Disabilities6) Instant Offense Conduct7) Fetal Alcohol Behavior Scale (FABS)

INSTANT OFFENSE CONDUCT (Likert Scale: 0=not at all / 2=very much so)

Factor: Offense Conduct Eugene Nunnery

Illogical actions w/ high risk of detection 2

Simple offense “plan” 2

Poor escape plan 2

Impulsive fight or flight conduct in face of unforeseen events (e.g., victim responses)

2

Aggressive over-reaction to unforeseen events 2

More sophisticated co-defendants (if applicable) ?

TOTAL 10 / 10 = 100%

Fetal Alcohol Behavior Scale (FABS)(Streissguth et al., 1998)

Total Possible

Score

MEANNormal Cohort

MEAN FASD

Cohort

Per Former Teacher

Per School Counselor

Per Former

Girlfriend

36 5.0 20.3 19 6 20

SUMMARY for E.N.:FASDEx FUNCTIONAL INDEX

93%

Functional Assessment: Intervention Analysis

• Interventions recommended for children and youth with FASDs

• Interventions received by defendant

FASD = Executive Function Deficits = Impulsivity and

Immaturity

• Impulsivity = acting on urges without thinking about consequences to self or others

• Immaturity = acting younger than one’s chronological age

What the Testing Showed

• Regarding Defendant’s impulsivity

• Regarding Defendant’s immaturity and functional age

Unusual Behavioral Features in FASDs That Lead Mental Health Professionals

to Suspect Conduct Disorder

• Lying and “tall tales” (typically beginning in early childhood)

• Stealing (typically beginning in childhood)

• Behavioral misconduct (typically beginning in early childhood) and law-breaking behavior

Lying

Individuals with FASDs lie because of deficient social and adaptive skills. They lie to stay out of trouble because they don’t understand that they have deficient impulse control and don’t know why they did something wrong. They make up stories to impress others because they don’t have the social skills to interact in a genuine manner.

Stealing

Individuals with FASDs often begin stealing in childhood due to deficient impulse control (they can’t resist urges) and lack of boundary awareness (they don’t understand “ownership” principles because of deficient ability to think in abstract terms).

Behavioral Problems and Law Breaking Behavior

People with FASDs often have problems controlling their behavior and following rules (laws) because of deficient learning, memory, and executive functioning (including the ability to apply lessons learned in the past to new situations). They may know the rules because of past mistakes, but they can’t apply them to new situations because every new situation seems entirely different.

These deficits (and others) explain why people with FASDs have so many problems obeying the law.

Behavioral Features inEugene Nunnery

• Lying• Stealing• Behavioral misconduct and law-

breaking behavior

Why Not Conduct Disorder or Antisocial Personality Disorder?

“When a Mental Disorder Due to a General Medical Condition or a Substance-Abuse Induced Disorder is responsible for the symptoms, it preempts (i.e., rules out) the diagnosis of the corresponding primary disorder with the same symptoms” (DSM-IV-TR, p. 6).

Choice?

Eugene Nunnery did not choose to have brain damage or the deficits in self-regulation associated with that brain damage.

FASD

FASD is not a disability of the defendant’s making.

“We can envision few things more certainly beyond one’s control than the drinking habits of a parent prior to one’s birth” (Florida Supreme Court ruling in Dillbeck v State 643 So. 2d 1027 (Fla.)

THE ISSUE OF REMORSE

Eugene Nunnery’s Only Comment During Trial 1

(after hearing jury’s sentencing decision)

“I’m not sorry about what I did. I’m guilty. I’d do it again. I’m not sorry. I did that. Whether I get the death penalty or life, hey, that’s what happened. (If the prosecutor) dropped all the charges, I walk out of here right now and I’d so the same thing….Like I said, right, I did it. I did wrong. I’m not remorseful, and as I stated, prison (is) where I’m supposed to be. Have a nice day everyone.”

CONTACT INFO

www.FASDExperts.com

1700 Seventh Avenue, Suite 210Seattle, WA 98101

(206)624-3800

CONTACT INFO

Richard S. Adler, MD, Medical Director(206) [email protected]

Dr. Natalie Novick Brown, Ph.D, Program Director(206)[email protected]

Dr. Paul Connor, Ph.D., Neuropsychological Director (206) 940-1106 [email protected]

Hon. Anthony P. Wartnik, J.D., Judge (Retired),Legal Director(206) [email protected]

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

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


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


Trial/Sentencing• Mitigation • Future dangerousness


Post-conviction Stage• Ineffective assistance of counsel• Trial court error

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.

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.”

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 Queen’s L.J. 135, at p. 140

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

THE RIGHT TO DIAGNOSIS BY AN EXPERT

1. Castro v. Oklahoma, 71 F.3rd 1502 (10th Cir. 1995), p. 10

Castro was convicted of murder and sentenced to deathThe 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

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

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 paroleHeld:* 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

4. Silva v. Woodford, 279 F.3rd 825 (9th Cir. 2002), p. 98

Defendant was tried and sentenced to death while co-defendants received 11 years and life with the possibility of paroleHeld:* 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

5. State v. Brett, 126 Wn.2d 868 (2001), p. 108

Following conviction for aggravated murder 1st 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 courtHeld:* 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.

6. Landrigan v. Schriro, 441 F.3rd 638 (9th 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

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 alcoholismTwo 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)

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 reportsHeld:* 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

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

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

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

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, 4th 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.

2. U.S. v. Nelson (Cont.)

Testimony had been presented by threepsychiatrists who had each administered tests toNelson. Each concluded that he met each of theCriteria. 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

3. Stankewitz v. Woodford, 365 F.3rd 706 (9th 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

HOLMES, HEARN AND RELATED CASE AND STATUTORY LAW

Aristotle and Judges: 13:7

• Historical View

“Foolish, “Behold,thou

Drunken, shalt conceivehairbrain and bear awomen most son: And now,often bring drink no wineforth children or strong

drink.”like unto them-selves.” - Aristotle in - Judges 13.7

Problematica

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.

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.

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. Isn’t 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”?

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 person’s 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?

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.

QUESTION

• Will the U.S. Supreme Court work it’s 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?

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.

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..

There are still 23 states unaccounted for.

Who knows how many more variations are out there?

• “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.’”

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.

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 Louisiana’s death penalty sentencing. It claimed that Louisiana improperly treats this condition as an aggravating factor.

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.3rd 1502, 1516 (10th Cir. 1995); and3. 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

This is a Fed. R. Civ. P. 59(e) motion to alter or amend the judgment dismissing with prejudice Hearn’s successive habeas petition under Atkins v. Virginia.

Hearn’s 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, Hearn’s 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.

The trial judge ruled that Hearn’s 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 Hearn’s 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.

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.”

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.

Incremental Changes in Application of Eighth

Amendment

Incremental Changes Over Time Regarding Age Factor

*American Common Law, going back to1642, permitted the execution of juveniles.*Thompson v. Oklahoma, 487 U.S. 815

(1998) – Juveniles under age 16 cannot be executed

*Stanford v. Kentucky, 492 U.S. 361 (1989) – Juveniles ages 16 and 17 can be executed

*Roper v. Simmons, 543 U.S. 551 (2005) – Juveniles under age 18 cannot be executed

Incremental Change Over Time Regarding Mental Retardation

*English Common Law – Idiots and imbeciles could not be executed

*Penry v. Lynaugh, 492 U.S. 302 (1989), same day as Stanford v. Kentucky (age factor) – Execution not automatically forbidden for persons with mental retardation

*Atkins v. Virginia, 536 U.S. 304 (2002) – The mentally retarded cannot be executed

The Problem1. We now have a bright line of age 18 before the

death penalty can be imposed, but what is the difference between age 17 and 364 days and age 18 and two months in terms of maturity and culpability?

2. We now have a bright line of mental retardation, but what constitutes mental retardation (e.g.) the definition of mental retardation differs from state to state so that two people with the same full scale I.Q. score may be subject to execution in one state but not in another state?

3. What do we do with people who are age 18 or older and have a full scale I.Q. above the numerical cut-off but function below that number because of the cognitive, executive and adaptive deficits caused by FASD?

Roper v. Simmons

• This case brings the problems identified into focus as does the Atkins issue in the Hearn case, in light of the position articulated by Dr. Greenspan in Hearn regarding the appropriateness of looking beyond full scale I.Q. scores in determining whether a person is mentally retarded

Roper v. Simmons

• Justice O’Connor, dissenting in Roper, opines that some youngsters under age 18 have sufficient maturity and intelligence to warrant consideration of the death penalty. The corollary is that some people age 18 and older still lack the requisite maturity and intelligence and also some people with full scale I.Q. scores above the cut-off line act intellectually, emotionally and behaviorally function at a level well below the cut-off score for mental retardation under the traditional methodology

WHY AM I INVOLVED?

fasd: application of the scientific method to the forensic setting

Documents

fasd relevant

fasd assessment

fasdtypical fasd

appointmenttypical fasd

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legal matters

multiple legal contexts

prior legal historyeasily