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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

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


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

accessed October 26, 2010.


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


Brandon rhode
BRANDON RHODEhttp://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/

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

Neuropsychological testing – organic impairment attributed to substance use.

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

Death sentence


Brandon rhode2
BRANDON RHODEhttp://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/

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

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

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

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

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


CALIFORNIA GOVERNOR PETE WILSON, 1992http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/

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.


CALIFORNIA GOVERNOR PETE WILSON, 1992http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/

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.


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


MAN ON DEATH ROW DESERVES LIFE TERMhttp://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/

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.


MAN ON DEATH ROW DESERVES LIFE TERMhttp://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/

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 http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/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, http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/FASD MUST BE PRESUMED TO BE PRESENT UNTIL SHOWN TO BE OTHERWISE


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


Gudjonsson suggestibility scale story 2 gss 2
GUDJONSSON SUGGESTIBILITY SCALE STORY 2 (GSS-2)http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/

* = Significant at < .05

** = Significant at < .01

*** = Significant at <.005


  • HIGH http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/INDEX OF SUSPICION

  • DILIGENT MITIGATION EFFORTS

  • STEP-WISE EXPERT CONSULTATION


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

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


Screening red flags
SCREENINGhttp://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/& RED FLAGS


Birth mother
BIRTH MOTHERhttp://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/

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

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

  • 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 http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/DOESN’T MATTER


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

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)


FAS Family Resource Institutehttp://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/


What does matter
WHAT http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/DOES MATTER


Attorney client interviews
ATTORNEY-CLIENT INTERVIEWShttp://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/

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

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

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

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

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

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

  • 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."


Sentencing
SENTENCING 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."

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 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."

CAPITAL MURDER

  • LWOPP (TX, 2010)

  • LWOPP (NV, 2009, 2010)


Sentencing vulnerable victim
SENTENCING: 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."Vulnerable Victim

SEXUAL ASSAULT (CO, 2008)

  • Enhanced sentence for perpetrator

    SEXUAL ASSAULT (OR, 2008)

  • Plea bargain


Post conviction relief habeas
POST-CONVICTION RELIEF/HABEAS 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."

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 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."


Richard s adler m d
RICHARD S. ADLER, M.D. 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."


Action steps
ACTION STEPS 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."


Fasd checklist
FASD CHECKLIST 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."


Childhood photographs
CHILDHOOD PHOTOGRAPHS 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."


Digital photograph
DIGITAL PHOTOGRAPH 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."


Initial review of pre existing testing
INITIAL REVIEW OF 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."PRE-EXISTING TESTING


Neuropsychological profile je
NEUROPSYCHOLOGICAL PROFILE: JE 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."


Acquisition of documents
ACQUISITION OF DOCUMENTS 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."


Identifying suitable sources of history
IDENTIFYING SUITABLE SOURCES OF HISTORY 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."


Nexus
NEXUS 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."


Cost timetables
COST & 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."TIMETABLES


NEURORADIOLOGICAL DATA 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."


JOHN BLUME: 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."

" 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


A PICTURE IS A PICTURE, 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."

NOT A PANACEA


DIFFUSION TENSOR IMAGING 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."

Defendant

Normal


HOSKINS V. STATE 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."

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


South Carolina v. 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."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 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."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).


  • 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 not definitively diagnose MR without examining defendant).


How things go right
HOW THINGS GO RIGHT not definitively diagnose MR without examining defendant).


Summary
SUMMARY not definitively diagnose MR without examining defendant).


Fasd experts contact information
FASD EXPERTS not definitively diagnose MR without examining defendant).CONTACT INFORMATION

www.FASDExperts.com

1700 Seventh Avenue, Suite 210

Seattle, WA 98101

(206) 624-3800


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