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

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

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2010 appellate judicial attorneys institute october 27 2010 burlingame ca

FETAL ALCOHOL SPECTRUM DISORDERS: FROM COMPETENCY TO STAND TRIAL TO CLEMENCYRichard S. Adler, M.D.Natalie Novick Brown, Ph.D.www.FASDExperts.com Seattle, WA

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


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/

accessed October 26, 2010.


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

FASD


Brandon rhode

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 rhode1

BRANDON RHODE

Neuropsychological testing – organic impairment attributed to substance use.

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

Death sentence


Brandon rhode2

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 rhode3

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 rhode4

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 rhode5

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 rhode6

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


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

CALIFORNIA GOVERNOR PETE WILSON, 1992

IN 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 SYNDROME

CAMBRIDGE, MA: HARVARD UNIVERSITY PRESS, 2005, 154.


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

CALIFORNIA GOVERNOR PETE WILSON, 1992

IN 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 SYNDROME

CAMBRIDGE, MA: HARVARD UNIVERSITY PRESS, 2005, 154.


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

JEFFREY LANDRIGAN


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

MAN ON DEATH ROW DESERVES LIFE TERM

TRIAL JUDGE NEVER WAS TOLD OF HIS BRAIN DAMAGE

Oct. 21, 2010

A. Bates Butler III , Former US Attorney for ArizonaThe 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.


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

MAN ON DEATH ROW DESERVES LIFE TERM

TRIAL JUDGE NEVER WAS TOLD OF HIS BRAIN DAMAGE

Oct. 21, 2010

A. Bates Butler III , Former US Attorney for ArizonaThe 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.


Fasd should be raised as early as possible in the legal process

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


Just like mental retardation fasd must be presumed to be present until shown to be otherwise

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


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

SUGGESTIBILITY


Gudjonsson suggestibility scale story 2 gss 2

GUDJONSSON SUGGESTIBILITY SCALE STORY 2 (GSS-2)

* = Significant at < .05

** = Significant at < .01

*** = Significant at <.005


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

  • HIGH INDEX OF SUSPICION

  • DILIGENT MITIGATION EFFORTS

  • STEP-WISE EXPERT CONSULTATION


Syllabus

SYLLABUS

  • Novick Brown: FASD “Red Flags”

  • Novick Brown: FASD throughout the legal process – theory and practice/ case examples

  • Adler: Practical “Action Steps”

  • Adler: Summary/ Q & A


Natalie novick brown ph d

NATALIE NOVICK BROWN, PH.D.


Screening red flags

SCREENING& RED FLAGS


Birth mother

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

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

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 doesn t matter

WHAT DOESN’T MATTER


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

Associated Features

Epicanthal folds

1. Short palpebral

fissures

Flat midface

Low nasal bridge

Short nose

Minor ear anomalies

2. Flat philtrum

3. Thin upper lip

Micrognathia

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

Streissguth (1994)


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

FAS Family Resource Institute


What does matter

WHAT DOES MATTER


Attorney client interviews

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

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

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

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

“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

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 trial

COMPETENCY 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)


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

"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….


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

“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."


Sentencing

SENTENCING

ARSON 1 (WA; 2008)

  • Downward departure

    ROBBERY 1 (WA; 2008)

  • Low end of range

    VEHICULAR HOMICIDE (WA; 2008)

  • Downward departure

    AGGRAVATED ASSAULT (2 cts; WA; 2010)

  • Low end of range

    AGGRAVATED SEXUAL ASSAULT (WA, 2009)

  • Downward departure


Sentencing1

SENTENCING

CAPITAL MURDER

  • LWOPP (TX, 2010)

  • LWOPP (NV, 2009, 2010)


Sentencing vulnerable victim

SENTENCING:Vulnerable Victim

SEXUAL ASSAULT (CO, 2008)

  • Enhanced sentence for perpetrator

    SEXUAL ASSAULT (OR, 2008)

  • Plea bargain


Post conviction relief habeas

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 waiver

WAIVER/REVERSE WAIVER


Richard s adler m d

RICHARD S. ADLER, M.D.


Action steps

ACTION STEPS


Fasd checklist

FASD CHECKLIST


Childhood photographs

CHILDHOOD PHOTOGRAPHS


Digital photograph

DIGITAL PHOTOGRAPH


Initial review of pre existing testing

INITIAL REVIEW OF PRE-EXISTING TESTING


Neuropsychological profile je

NEUROPSYCHOLOGICAL PROFILE: JE


Acquisition of documents

ACQUISITION OF DOCUMENTS


Identifying suitable sources of history

IDENTIFYING SUITABLE SOURCES OF HISTORY


Nexus

NEXUS


Cost timetables

COST & TIMETABLES


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

NEURORADIOLOGICAL DATA


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

JOHN BLUME:

" NEUROIMAGING IS NEVER THE FIRST OPTION AND IT SHOULD ONLY BE DONE ADVISEDLY."

APRIL 23, 2010

HABEAS ASSISTANCE & TRAINING

COUNSEL PROJECT

NATIONAL SEMINAR

SEATTLE, WA


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

A PICTURE IS A PICTURE,

NOT A PANACEA


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

DIFFUSION TENSOR IMAGING

Defendant

Normal


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

HOSKINS V. STATE

702 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, Arizona

2007

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


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

South Carolina v. Stanko

(2006)

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

“Brain Scanning in the Courts: The Story So Far”

Marchant G, J.D., Ph.D.,Orozco S., J.D. Candidate

Sandra Day O’Connor College of Law, Arizona

2007

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


The right to diagnosis by experts and related issues

THE RIGHT TO DIAGNOSIS BY EXPERTS AND RELATED ISSUES

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

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

  • Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002) p. 98 (Duty to investigate FAS for possible mitigation)

  • 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).


2010 appellate judicial attorneys institute october 27 2010 burlingame ca

  • 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 WRONG


How things go right

HOW THINGS GO RIGHT


Summary

SUMMARY


Fasd experts contact information

FASD EXPERTSCONTACT INFORMATION

www.FASDExperts.com

1700 Seventh Avenue, Suite 210

Seattle, WA 98101

(206) 624-3800


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