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REPRESENTING CLIENTS WITH FASD IN THE CRIMINAL JUSTICE SYSTEM: Changing Court Attitudes Raising FASD at all stages. WILLIAM J. EDWARDS, DEPUTY PUBLIC DEFENDER OFFICE OF THE PUBLIC DEFENDER LOS ANGELES COUNTY, CALIFORNIA. Fetal Alcohol Syndrome (FAS).

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WILLIAM J. EDWARDS, DEPUTY PUBLIC DEFENDER OFFICE OF THE PUBLIC DEFENDER

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REPRESENTING CLIENTSWITH FASD IN THECRIMINAL JUSTICE SYSTEM:Changing Court AttitudesRaising FASD at all stages

WILLIAM J. EDWARDS, DEPUTY PUBLIC DEFENDER

OFFICE OF THE PUBLIC DEFENDER

LOS ANGELES COUNTY, CALIFORNIA


Fetal Alcohol Syndrome (FAS)

FAS is a neuropsychiatric developmental disorder that is a common public health issue according to the U.S. Surgeon Generals 2005 Report.

A set of mental, physical and neurobehavioral birth defects caused by exposure to alcohol during pregnancy.


Today, Ill cover 4 essentials

1. What people with FAS & FASD look like at different ages

2. How their unusual behaviors are related to brain damage from prenatal alcohol exposure and possibly enhanced by bad environments

3. How can you establish that the mother drank alcohol during her pregnancy with this child

4. And which experts can make your case. (Ill also tell you about mistakes Ive made)


FAS May Include:

  • Confirmed prenatal alcohol exposure

  • Evidence of a characteristic pattern of facial anomalies that includes features such as an indistinct philtrum, thin upper lip & small eyes.

  • Evidence of growth retardation in at least one of the following areas:

    • Low Birth Weight - babies born with FAS are usually below the third to tenth percentile in their birth weight.

    • Decelerating weight over time not due to nutrition.

    • Failure To Thrive.

    • Disproportional low weight to height


FAS Cont.

  • Evidence of central nervous system dysfunction.

    • In many cases the child or adult will have a lower IQ sometimes within the range of intellectual disability (mental retardation).

    • Structural brain damage.


Fetal AlcoholSpectrum Disorders (FASD)

FASD is an umbrella term used to describe the many different disabling effects of prenatal alcohol exposure.

FASD includes FAS and other alcohol-related diagnostic categories such as ALCOHOL RELATED NEURODEVELOPMENTAL DISORDER (ARND), formerly known as Fetal Alcohol Effects (FAE).


FASD is a developmental disorder because of the obstructions and delays from normal growth patterns and resulting deficits including:


Developmental Deficits

  • ADHD and ADD

  • Mental Retardation

  • Learning Disabilities

  • Mental Illness including Bi-polar disorder, Oppositional Defiant Disorder, Antisocial Personality Disorder, Borderline Personality Disorder and Depression

  • Poor memory and recall

  • Poor planning


PRIMARY DISABILITIES ASSOCIATED WITH FASD

General intelligence, mastery of academics and general level of adaptive functioning are measures of primary disabilities.


Cognitive

  • Lower IQ (may be normal or even gifted)

  • Difficulties with:

    • Memory

    • Poor math skills-problems handling money

    • Self awareness, reflection

    • Abstract concepts


Medical/Neuromotor

Difficulties with:

  • Balance, coordination

  • Seizures

  • Growth FAILURE TO THRIVE

  • Hyperactivity (present is about 85% of the children with FAS)

  • Middle ear infections

  • Eye problems, e.g. severe nearsightedness

  • Orthopedic problems

  • Cardiac anomalies, e.g. heart murmurs, patent ductus arteriosus, ventricular septal defect


Executive Functioning

Difficulties with:

  • Planning

  • Judgment

  • Delayed gratification

  • Impulse Control

  • Organization skills

  • Attention, focus, concentration


Emotional

  • Little ability to recognize feelings

  • Little ability to articulate feelings

  • Mood disorders

  • Anger/Rage disorders

  • Vulnerability to mental illness


Speech/Language

  • Parroting of others-speech patterns

  • Delay in communication

  • Talkativeness

  • Confabulation


Interpersonal Skills

  • Inability to read social clues

  • Inability to empathize

  • Excessive demand for attention

  • Externalization of blame

  • Arrested social development


Difficulties In Early Childhood

  • Poor visual focus - severe nearsightedness

  • Sleep & feeding difficulties

  • Seizures

  • Poor motor coordination - appear to be clumsy

  • Developmental Delays


Early Childhood Cont.

  • Distractibility and hyperactivity- unable to pay attention or sit still

  • Difficulty adapting to change

  • Difficulty following directions

  • Born into a dysfunctional family, the infant is commonly abandoned in the hospital, orput up for adoption by the mother, or removed by Child Protective Services.


Difficulties in Mid-Childhood

  • Difficulty understanding / predicting consequences

  • Emerging discrepancy between expressive language and comprehension

  • Hyperactivity - memory deficits - impulsivity

  • Poor comprehension of social rules


Mid-Childhood Cont.

  • ADHD symptoms child might get up and walk out of the classroom

  • Academic failure

  • Special Education

  • Concrete thinking may frustrate relationships

  • Gullibility


Difficulty in Adolescence

  • Lying stealing - truancy

  • Failing to understand consequences of actions

  • Inappropriate sexual behavior

  • Low self esteem

  • Mental health issues

  • Poor choice of companions


Adolescence Cont.

  • They may reach an average academic level of fourth grade reading, third grade spelling and only second grade math

  • Adaptive skills in the areas of living, communication and socialization skills are significantly delayed

  • Unable to grasp such essential concepts as cause and effect, or the relevance of time


Difficulties in Adulthood

  • Behavior problems

  • Depression - Anxiety

  • Alcohol/Drug Addiction

  • Suicidal

  • Psychotic behavior

  • Secondary disabilities may become dominant


SECONDARY DISABILITIES

Secondary disabilities are those that the client is not born with, and that could presumably be ameliorated (either fully or partially) through better understanding and appropriate interventions.


In a 1996 study conducted by Dr. Ann Streissguth from the University of Washington School of Medicine, the prevalence of Secondary Disabilities was measured in 473 people with FAS/FASD from ages 6 to 51.


Secondary Disabilities

  • Mental Health Problems90%

  • Disrupted school experience41%

  • Trouble with the law40%

  • Confinement (Jail, Juv. or Prison)30%

  • Inappropriate sexual behavior45%

  • Alcohol and Drug Problems20%

  • Dependent Living80%

  • Problems with Employment79%


DEVELOPING A SOCIAL HISTORY THROUGH INTERVIEWS AND RECORDS

Problems Substantiating FAS/FASD


HISTORY


MATERNAL HISTORY


Mothers History

  • Keep in mind that the mother may have been involved with other toxic substances such as glue sniffing, drugs and may not have considered alcohol her drug of choice. Her medical records may reflect drug use but not the concomitant alcohol use which is usually present.

  • Some women may not realize there is no safe kind of alcohol, for example, thinking wine/wine coolers dont count.


Mothers History Cont.

  • Or they may not realize there is no safe time to drink during pregnancy, from conception (just before they found out they were pregnant) to birth. For example, they may say no because they quit when they found out they were pregnant.

    • NOTE: Alcohol exposure to the fetus during the first trimester poses the greatest risk for physical changes to brain, body and organ development. i.e. birth defects. The central nervous system (brain) is sensitive to damage throughout pregnancy.


Mothers History Cont.

  • Important to tell the birth mother why this diagnoses is important:

    • Services.

    • Treatment.

    • Intervention.

    • Placement in school.

    • Prevent next generation affected.

    • Prevent subsequent FASD births (77%).


Assessing Maternal Alcohol Usethrough interview of the Mother

  • When there are signs that the mother drank there must be an investigation that reaches 3 generations. Counsel will have to look at the history of drinking by the mother and the grandmother.

  • Counsel must also review all family medical conditions and vulnerability to cultural, environmental, nutritional and psychological issues including poverty.


  • When asking about use of any substances, frame the question by asking How many rather than Did you

  • Asking How many gives the mother permission to acknowledge that she did drink during pregnancy.

  • This manner is more effective when interviewing others also (spouse, siblings, etc).


  • Assess substance use separately for the time periods:

    • prior to pregnancy.

    • prior to pregnancy recognition.

    • post pregnancy recognition.

      Women are more likely to acknowledge alcohol use prior to pregnancy than after pregnancy recognition.

      Drinking PATTERNS from time periods prior to pregnancy are predictive of outcomes.


  • Assess pattern of use.

    • Ask about both typical and maximum consumption: Before you knew you were pregnant what was the most number of drinks you drank on any one occasion.

    • Ask What type of alcohol beverage do you prefer? to better allow mother to estimate alcohol use.

    • Ask the size of the drinking container, keeping in mind that malt liquors have a higher concentration of alcohol.


Good positively stated question to ask:

In the 30 days BEFORE you found out you were pregnant, how many drinks did you have?


Mothers Medical Issues

  • Diabetes associated with heightened rates of birth defects, including central nervous damage. Maternal diabetes can be argued to greatly increase the risk of fetal alcohol exposure.

    (Reproductive Toxicology 24: 31-41 (2007))

  • Was the mother Zinc deficient during pregnancy?


Medical & Psychological History

Records to show a maternal history of alcohol use by the mother

  • Mothers hospitalizations (medical or psychiatric)

  • Mental and physical injuries (neurological and psychological records)

  • records showing alcohol and drug use (arrest records showing DUI or public intoxication or even domestic violence records)


Medical & Psychological History cont.

  • Prenatal care records and postnatal follow up

  • Birth records showing any birth trauma

  • Social service records (dependency records if the client and siblings were taken away from the mother)

  • Death certificate of the mother


CLIENT HISTORY


Clients History

  • Previous Diagnosis May Have Been Incorrect or Incomplete.

    • Antisocial personality disorder.

    • ADHD/ADD - placed on Ritalin.

    • Speech and language handicaps.

    • Learning disabilities.

    • Behavioral problems, ODD, RAD, Conduct Disorder.


Birth Records

  • Look at the weight, height (length) and head circumference of the child.

    • In one case my client was born with cocaine in his system and a social worker was called to interview the mother.

    • In another case my client was hospitalized because he had lost so much weight at birth-Failure To Thrive.

    • But remember, most people with FASD do not have physical and or cognitive disabilities and still have serious brain based neurobehavioral disabilities.


Clients Educational Records

  • All academic and attendance records

  • Special education records including eligibility and placement reports (many kids qualify for more than one category)

  • All IEP reports (goals and accommodations)

  • (Investigate the parents failure to follow up with the IEP meetings to request the required services for the client)

  • Was there any IQ testing completed.


Juvenile Court/Juvenile Delinquency Records

  • Get all juvenile delinquency records

    • All social services reports, psychological records.

    • If the client was incarcerated you will need to get all educational records, social histories.


USE OF EXPERTS


Experts List

  • Social worker

  • Neurologist

  • Dysmorphologist and/or Geneticist

  • Pediatric Doctor

  • Dr. Fred Bookstein, University of Washington, Seattle (Formats an MRI to look at brain damage caused by alcohol)


Experts List Cont.

  • Neuropsychologist

    • Adaptive behavioral testing

    • Executive functioning testing

    • Social/Emotional testing

    • Worthwhile to repeat IQ testing, if not recent or from reliable source.


Bookstein Research


Corpus callosum abnormalities

Mattson, et al., 1994; Mattson & Riley, 1995; Riley et al., 1995


Capital Offense

Some examples of legal questions commonly confronting capital lawyers:

  • How does FAS/FASD explain or contribute to the behavior of this client, especially as it relates to the crime?

  • How do we know that the client was affected with FAS/FASD at the time of the crime?


Capital Offense cont.

  • How does the clients multiple mental health difficulties interact with each other to result in the type of behavior evidenced by the client?

  • Does the client suffer from FAS/FASD that the jury might find mitigating even though FAS/FASD did not directly lead to the clients criminal behavior?


Capital Offense cont.

  • Why was the client not diagnosed with FAS/FASD before he was charged with the crime?

  • If the client was never successfully treated for his FAS/FASD, does he still require, and is he still likely to benefit from treatment? And if so is appropriate treatment available in a prison setting?


Capital Offense cont.

  • How will the clients FAS/FASD impact his ability to adjust to life in prison?

    • Is he at risk of being harmed by others?

    • At risk of harming himself ?

    • At risk of harming others?

    • Will treatment improve his ability to adjust to life in prison?


Ineffective Assistance Of Counsel

  • Was there sufficient indication of FAS/FASD that the defense attorney should have made some sort of investigation?

  • How much evidence of alcohol use by the defendants mother is sufficient to warrant continued investigation? YOU DO NOT NEED HEAVY DRINKING BY THE MOTHER!!


Ineffective Assistance Of Counsel cont.

  • WAS the proper expert retained?

  • Silvia v. Woodford 279 F. 3d 825 (9th Circuit 2002).

  • Schriro v. Landrigan 550 U.S. 465 (2007).

  • Rompilla v. Beard 545 U.S. 374 (2005).


PENALTYPHASEISSUES


Societal And Maternal FailuresEven Before Birth

  • Client is a victim, even before birth of societys failure to help his mother deal with her alcohol abuse.

  • After the client was born, his problems were never accurately diagnosed or treated. He most likely had a previous diagnosis that was other than FAS/FASD.


Societal And Maternal FailuresEven Before Birth Cont.

  • Problems with Lack of REMORSE

    • The clients failure to understand cause and effect and the implications of his actions should help the jury understand the clients inability to express remorse.

    • The clients desire to please may cause him to smile at people in the courtroom and problems with attention may cause him to appear unconcerned with the proceedings.


Adjustment To Prison

  • Red flag for jury that requires us to explain. THE FASD DAMAGE that our client has cannot be fixed. It is like having an intellectual disability.

  • They are in need of consistent, structured environments requiring few decisions. Look at prior incarceration records if they exist.


LEARNING FROMMY MISTAKES


My Misperceptions and Miscommunications

  • I thought the behavioral problems of my client, characteristic of FAS/FASD, were the result of poor parenting or a bad environment


  • And didnt look at the disability as a result of brain damage, instead of the behavioral manifestation of an emotional disorder.


  • I thought the client had to have a low IQ and be diagnosed with an intellectual disability to have FAS/FASD.

    IQ scores alone fail to give an adequate picture of organic brain damage and deficits in adaptive behavior.


  • Even though my client with FAS/FASD had a higher IQ, I never had him tested by a psychologist, I used a psychiatrist.

    • Should have hired a neuro-psychologist or a psychologist to administer the VABS Vineland Adaptive Behavioral Scale or other neuropsychological testing.

    • VABS often reveals deficits in adaptive functioning that are more profound than deficits observed from IQ testing or achievement tests.

    • Did not know that VABS testing revealed that my client: failed to consider consequences of his actions, was unresponsive to social clues, and often lacked reciprocal friendships.


  • I never tried to educate my DA and judge and assumed that they understood FAS/FASD.

  • And assumed that my client who had FAS/FASD could show remorse to the Probation Officer and the Judge in court.


  • I failed to notice when my client was telling his story there were blanks in his memory and he was a poor historian.


  • Never realized my client with FASD did not like to be in an environment that was over-stimulating .needs to be in a quiet room, reduce the number of activities.your expert should have a quiet room when doing testing.


  • Never realized you need to talk to your client with FAS/FASD in concrete terms.Keep It Simple and Short (KISS).


  • Didnt know changes in routine schedule and planning have the potential to create confusion and dispair for my client (always go see the client the same time each week while in custody).


  • Never realized that after having my client diagnosed with FAS/FASD he would not automatically receive services in the community and in prison.

    Counsel needs to coordinate with the court and probation and parole services in identifying and advocating for resources in the community.


  • Never bothered to check to see if my clients siblings had FAS/FASD or if the mother was impaired by FASD herself.


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