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
http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/
accessed October 26, 2010.
FASD
BRANDON RHODE
Triple murder 1988 – 2 children and
father in their home – during burglary
 Jones County, GA
 Rhode: 18y, 9 months at the time of
crime
 Same-aged co-defendant

BRANDON RHODE
Neuropsychological testing – organic
impairment attributed to substance
use.
 FASD suspected, but mother denied
alcohol use “prior to pregnancy”
 Death sentence

BRANDON RHODE
State Habeas appeal ca. 2006
 Seen by psychiatrist with expertise in
adolescent brain development who
diagnosed FASD, pre- Roper v.
Simmons decision
 Habeas court found prenatal alcohol
exposure history not credible

BRANDON RHODE
Suicide of Death Row friend in next
cell 1/2010
 Infrequent, non-scheduled MH visits
 FASD not diagnosed formally by
correctional staff
 No treatment aimed at
impulsivity/FASD

BRANDON RHODE
Clemency hearing 9/17/2010
 Clemency Board found FASD relevant
and present
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
Clemency Board inquiry included:
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Religious beliefs
Remorse
Disciplinary Report history
Clemency denied 9/17/2010 at 3:30 p.m.
BRANDON RHODE
MH visit 5 minutes 9/17/2010
 No MH follow-up scheduled, or
mentioned
 On “Death Watch” BJR provided razor
9/17/2010 by staff, not taken back,
despite hx of suicide, dx/tx for
Depression

BRANDON RHODE
 9/21/2010:
Suicide attempt 
hemorrhagic shock
 9/21/2010: MH visit 5 minutes. No
change in tx plan.


9/24/2010: Examination by RSA
9/27/2010: Execution
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.
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.
JEFFREY LANDRIGAN
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 Arizona
The Arizona Republic
Justice Clarence Thomas, writing for the slim
majority, said the never-presented evidence
"would not have changed the result.“
The sentencing judge has now stated under
oath that if she knew about Landrigan's brain
damage, fetal alcohol syndrome, genetic
predispositions and parental abandonment, she
would not have sentenced him to death.
MAN ON DEATH ROW DESERVES LIFE TERM
TRIAL JUDGE NEVER WAS TOLD OF HIS BRAIN DAMAGE
Oct. 21, 2010
A. Bates Butler III , Former US Attorney for Arizona
The Arizona Republic
Justice Clarence Thomas, writing for the slim
majority, said the never-presented evidence
"would not have changed the result.“
The sentencing judge has now stated under
oath that if she knew about Landrigan's brain
damage, fetal alcohol syndrome, genetic
predispositions and parental abandonment, she
would not have sentenced him to death.
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
SUGGESTIBILITY
GUDJONSSON SUGGESTIBILITY SCALE
STORY 2 (GSS-2)
FASD Sample
(n=7)
Mean/SD
UK
General
Population
Mean/SD
UK
Court Referrals
Mean/SD
Immediate Recall
7.8/6.6
19.7/6.1 ***
10.9/7.1
Delayed Recall
6.1/5.3
18.4/6.0 ***
9.2/6.9
Yield 1
7.9/4.2
4.5/3.6
6.5/4.1
Yield 2
9.3/2.0
5.5/4.0 ***
7.9/4.6
Shift
9.9/3.2
3.0/3.0 ***
4.4/3.6 ***
Total Suggestibility
17.7/4.9
7.5/5.3 ***
10.9/6.0 **
GSS2 Subscale
*
= Significant at < .05
** = Significant at < .01
*** = Significant at <.005

HIGH INDEX OF SUSPICION

DILIGENT MITIGATION EFFORTS

STEP-WISE EXPERT CONSULTATION
SYLLABUS
1.
Novick Brown: FASD “Red Flags”
2.
Novick Brown: FASD throughout the legal
process – theory and practice/ case examples
3.
Adler: Practical “Action Steps”
4.
Adler: Summary/ Q & A
NATALIE NOVICK BROWN, PH.D.
SCREENING
& RED FLAGS
BIRTH MOTHER
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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
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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
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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
FAS “Face” in Young Child
(From Streissguth and Little, Unit 5, Project Cork, Slide/Teaching Curriculum on
Alcohol Use and Its Medical Consequences, 1994)
Associated Features
Diagnostic Criteria
Epicanthal folds
1. Short palpebral
fissures
2. Flat philtrum
3. Thin upper lip
Flat midface
Low nasal bridge
Short nose
Minor ear anomalies
Micrognathia
Streissguth (1994)
FAS Family Resource Institute
WHAT DOES MATTER
ATTORNEY-CLIENT INTERVIEWS
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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
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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
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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
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Juvenile record: running away and/or lots of
stealing
Offenses don’t “make sense” (e.g., no riskbenefit consideration)
Impulsive, opportunistic crimes
Prone to multiple probation violations
Assaults involve over-reactions (may occur in
combination with substance use)
“FASD CRIMES”

General crimes (60%)
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shoplifting/theft (36%)
burglary (15%)
DV (15%)
assault (17%)
Sexual crimes (50%)
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promiscuity (26%)
sexual advances, including assault (18%)
PLEA BARGAIN
Felony Harassment (WA; 2008):
 prosecutor agreed to reduce charges to
misdemeanor harassment
Murder 1/Robbery (PA; 2008)
 Prosecutor takes death off table in
exchange for bench trial
COMPETENCY TO STAND TRIAL

State v. Jesse James Scholler, Snohomish
County Superior court Case Nos. 08-800426-1, 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
ARSON 1 (WA; 2008)
 Downward departure
ROBBERY 1 (WA; 2008)
 Low end of range
VEHICULAR HOMICIDE (WA; 2008)
 Downward departure
AGGRAVATED ASSAULT (2 cts; WA; 2010)
 Low end of range
AGGRAVATED SEXUAL ASSAULT (WA, 2009)
 Downward departure
SENTENCING
CAPITAL MURDER
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LWOPP (TX, 2010)
LWOPP (NV, 2009, 2010)
SENTENCING:
Vulnerable Victim
SEXUAL ASSAULT (CO, 2008)
 Enhanced sentence for perpetrator
SEXUAL ASSAULT (OR, 2008)
 Plea bargain
POST-CONVICTION RELIEF/HABEAS
MIRANDA COMPETENCY & MENTAL STATE
 court granted habeas petition (NJ, 2006)
COMPETENCY/MENTAL STATE/SENTENCING
(pending)
 2007 (SC)
 2010 (TN)
 2010 (AZ)
WAIVER/REVERSE WAIVER
RICHARD S. ADLER, M.D.
ACTION STEPS
FASD CHECKLIST
CHILDHOOD PHOTOGRAPHS
DIGITAL PHOTOGRAPH
INITIAL REVIEW OF
PRE-EXISTING TESTING
NEUROPSYCHOLOGICAL PROFILE: JE
ACQUISITION OF DOCUMENTS
IDENTIFYING SUITABLE SOURCES
OF HISTORY
NEXUS
COST &
TIMETABLES
NEURORADIOLOGICAL DATA
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
A PICTURE IS A PICTURE,
NOT A PANACEA
DIFFUSION TENSOR IMAGING
Defendant
Normal
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
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
1.
2.
3.
4.
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).
5.
6.
Hicks v. Schofield, 599 S.E.2d 156 (GA 2004) (Expert
could not definitively diagnose MR without examining
defendant).
Stankewitz v. Woodford, 365 F.3rd 706 (9th Cir. 2004)
p. 723 (The alleged mitigating facts, including
“organic brain damage”, presumably a reference to
FAS, constitute “the kind of troubled history the
Supreme Court has declared relevant to assessing a
defendant’s moral culpability.”)
HOW THINGS GO WRONG
HOW THINGS GO RIGHT
SUMMARY
FASD EXPERTS
CONTACT INFORMATION
www.FASDExperts.com
1700 Seventh Avenue, Suite 210
Seattle, WA 98101
(206) 624-3800