FASD: APPLICATION OF THE SCIENTIFIC METHOD
TO THE FORENSIC SETTING
Texas Criminal Defense Lawyers Association
Courtyard Marriott Downtown
Austin, TX
Thursday, February 25, 2010
9:00 – 2:30 pm
NATALIE NOVICK BROWN, PH.D.
PROGRAM DIRECTOR
FASD Experts
FASDexperts.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
FASD Is Relevant in a Forensic
Context Because of
CNS Abnormalities
Brain damage causes cognitivebehavioral deficits which
significantly increase risk of
illegal behavior.
PREVALENCE
Why Is FASD Relevant in a Forensic Context?
Secondary Disabilities
100
Ages 6 - 51
Ages 21 - 51
90
80
70
%
60
50
40
30
20
10
Mental Health
Problems
Trouble
Inappropriate
Dependent
With the
Sexual Behavior
Living
Law
Alcohol &
Problems with
Disrupted School
Confinement
Drug Problems
Employment
Experience
Ages 6-51 (n=408-415)
Ages 21-51 (n=89-90)
PREVALENCE
Why Is FASD Relevant in a Forensic Context?
Secondary Disabilities
100
Ages 6 - 51
Ages 21 - 51
90
80
70
%
60
50
40
30
20
10
Mental Health
Problems
Trouble
Inappropriate
Dependent
With the
Sexual Behavior
Living
Law
Alcohol &
Problems with
Disrupted School
Confinement
Drug Problems
Employment
Experience
Ages 6-51 (n=408-415)
Ages 21-51 (n=89-90)
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 codefendants
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)
BREAK
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 Director
Richard Adler, MD – Medical Director
Paul Connor, PhD – Neuropsychology Director
3rd International Conference on
Fetal Alcohol Spectrum Disorder
Victoria, BC, Canada
March 11, 2009
GRAPHIC PRESENTATION OF
THE 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 OF
THE DEFENDANT’S
FAS-RELATED
FACIAL 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
Defendant
Normal
CAVEAT EMPTOR:
A PICTURE IS A PICTURE,
NOT A PANACEA
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
Brain Scanning in2007
the Courts: The Story
http://www.law.asu.edu/files/Centers_and_Programs/LST/Conferences_&_Events/brainscan/Marchant.pdf
So Far
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
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
FASD Experts’ Protocol:
Application of the Scientific
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?
FASD Experts’ Protocol:
Application of the Scientific
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 EVALUATION
OUT OF AREA & WITH REPORTS
ELEMENT
HOURS
COST
COMPREHENSIVE FASD EVALUATION
OUT OF AREA & WITH REPORTS
ELEMENT
Neuropsychological Testing
HOURS
COST
27
$6750
COMPREHENSIVE FASD EVALUATION
OUT OF AREA & WITH REPORTS
ELEMENT
HOURS
COST
Neuropsychological Testing
27
$6750
Functional Psychology
Evaluation
32
$8000
COMPREHENSIVE FASD EVALUATION
OUT OF AREA & WITH REPORTS
ELEMENT
HOURS
COST
Neuropsychological Testing
27
$6750
Functional Psychology
Evaluation
32
$8000
FASD Medical/Diagnostic
Evaluation
24
$8500
PAUL CONNOR, PH.D
NEUROPSYCHOLOGY DIRECTOR
ROLE OF NEUROPSYCHOLOGY
IN THE DIAGNOSIS OF FASD
• Identify pattern of current strengths and weaknesses
of 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 within Normal Limits
Functioning in Deficit
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?
NO
YES
YES
Diagnosis is
made
To Drs.
Brown and
Adler: Is
FASD
present?
Are there
deficits
despite this?
NO
YES
Pattern of
deficits
could still be
useful to
counsel
NO
Counsel may
decide not
to use
results
GUDJONSSON SUGGESTIBILITY SCALE
STORY 2(GSS2)
GSS2 Subscale
FASD
Sample
(n=7)
Mean/SD
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
Norms: General
Population
Mean/SD
(z-score
difference)
Norms: Court
Referrals
Mean/SD
(z-score
difference)
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
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)
17.8/5.3
10.9/6.0 (-1.2)
Total Suggestibility
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
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)
17.8/5.3
7.5/5.3 (-1.9)
10.9/6.0 (-1.2)
Total Suggestibility
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 welllearned. 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 NUNNERY
3 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 HISTORY
3 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 HISTORY
3 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 conduct
Jury Decision: HUNG JURY
Judge’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)
Eugene Nunnery
Diagnostic Criteria
CNS: Functional
(cognitive-behavioral)
Complex pattern of
cognitive-behavioral
abnormalities that are
inconsistent with
developmental level and
cannot be explained by
familial background or
environment alone
Defined by
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
Data
Criterion Met?
10 different areas
of impairment with
deficits > than 1
S.D. on
standardized tests
(per standardized
test results in
childhood and in
current
neuropsychologic
al 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 selfregulation 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 Index
A priori hypothesis:
If FASD, individual will display at least 60% of the
FASD traits in 7 phenotypic (model) categories:
1)
2)
3)
4)
5)
6)
7)
Academic Index
IQ-Learning-Adaptive Triad
Executive Function Self-Regulation Triad
Secondary Disability Risk/Protective Factors
Secondary Disabilities
Instant Offense Conduct
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
MEAN
Normal
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
Nexus
Prenatal Exposure
Brain Damage
Primary Disabilities
Secondary Disabilities
(Criminal Behavior)
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 in
Eugene Nunnery
• Lying
• Stealing
• Behavioral misconduct and lawbreaking 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 210
Seattle, WA 98101
(206)624-3800
CONTACT INFO
Richard S. Adler, MD, Medical Director
(206) 624-3800
richadler@msn.com
Dr. Natalie Novick Brown, Ph.D, Program Director
(206)441-7652
fstnat@yahoo.com
Dr. Paul Connor, Ph.D., Neuropsychological Director
(206) 940-1106
Paul@ConnorNeuropsychology.com
Hon. Anthony P. Wartnik, J.D., Judge (Retired),
Legal Director
(206) 232-2970
TheAdjudicator@comcast.net
HON. ANTHONY P. WARTNIK, J.D.,
JUDGE (RETIRED)
LEGAL DIRECTOR
RELEVANCE OF FASD
IN THE LEGAL ARENA
Pretrial Stage:
• Competency
– Waiving Miranda/Right against selfincrimination
– Consent to search,
– Competency to proceed to trial
• Plea negotiation
RELEVANCE OF FASD
IN THE LEGAL ARENA
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
RELEVANCE OF FASD
IN THE LEGAL ARENA
Trial/Sentencing
• Mitigation
• Future dangerousness
RELEVANCE OF FASD
IN THE LEGAL ARENA
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
death
The 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
parole
Held:
*
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 parole
Held:
*
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 court
Held:
*
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 alcoholism
Two 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 reports
Held:
* 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 three
psychiatrists who had each administered tests to
Nelson. Each concluded that he met each of the
Criteria. 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
“Foolish,
Drunken,
hairbrain
women most
often bring
forth children
like unto themselves.”
- Aristotle in
Problematica
View
“Behold,thou
shalt conceive
and bear a
son: And now,
drink no wine
or strong drink.”
- Judges 13.7
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?
U.S. V. DUHON, 104 F. SUPP.2D 663 (
)
• “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); and
3.
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 to
1642, 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 Problem
1.
2.
3.
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?
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?
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?