EXPERTISE YOU NEED TO DEFEND A CAPITAL CASE IN 2010 3 rd Interdisciplinary Program UW School of Law & Washington Death Penalty Assistance Center William.

EXPERTISE YOU NEED TO DEFEND A CAPITAL CASE IN 2010

3rd Interdisciplinary Program

UW School of Law &

Washington Death Penalty Assistance Center

William H. Gates Hall University of Washington School of Law

Seattle, WA

Saturday, February 6, 2010 8:30 a.m. - 4:15 p.m.

FETAL ALCOHOL SYNDROME:PRACTICAL TOOLS

www.FASDExperts.com :

Natalie Novick Brown, PhD – Program DirectorRichard Adler, MD – Medical Director

Paul Connor, PhD – Neuropsychology DirectorJudge Anthony Wartnik, JD – Legal Director

10:40 a.m. – 12:10 p.m.

Sir Isaac Newton

“If I have seen farther it is by standing on the shoulder of giants.”

FASD

PREVALENCEWhy Is FASD Relevant in a Forensic Context?

Secondary Disabilities100

90

80

70

60

50

40

30

20

10

Ages 6-51 (n=408-415) Ages 21-51 (n=89-90)

%

Mental Health Problems

Disrupted School Experience

Trouble With the

LawConfinement

Inappropriate Sexual Behavior

Alcohol & Drug

Problems

Dependent Living

Problems with Employment

Ages 6 - 51 Ages 21 - 51

PREVALENCEWhy Is FASD Relevant in a Forensic Context?

Secondary Disabilities100

90

80

70

60

50

40

30

20

10

Ages 6-51 (n=408-415) Ages 21-51 (n=89-90)

%

Mental Health Problems

Disrupted School Experience

Trouble With the

LawConfinement

Inappropriate Sexual Behavior

Alcohol & Drug

Problems

Dependent Living

Problems with Employment

Ages 6 - 51 Ages 21 - 51

RED FLAGS FOR FASD

TYPICAL FEATURES AT INTERVIEW WITH CLIENT

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 FEATURES OF INSTANT OFFENSE

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 co-

defendants

TYPICAL FASD-LIKE FEATURES FOLLOWING 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

LIFE HISTORY

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)

RICHARD S. ADLER, M.D. MEDICAL DIRECTOR

(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 DirectorRichard Adler, MD – Medical Director

Paul Connor, PhD – Neuropsychology Director

3rd International Conference on Fetal Alcohol Spectrum Disorder

Victoria, BC, CanadaMarch 11, 2009

FASD EXPERTS’DEVELOPMENTS

GRAPHIC PRESENTATION OFTHE DEFENDANT’S

NEUROPSYCHOLOGICAL PROFILE

PRESENTATION OF FUNCTIONAL IMPAIRMENTS IN

DEFENDANT’S HISTORY

FASDEx Secondary Disabilities Scale(Likert Scale: 1=not at all 5=very much so)

SECONDARY DISABILITY (FASD Incidence) E.N.?

Co-occurring mental health disorders (94%) 5

Disrupted school experience (43%) 1

Confinement (50%) 5

Trouble with the law (60%) 5

Alcohol/drug problems (35%) 5

Inappropriate sexual behaviors (50%) 1

Dependent living (82%) 3

Employment problems (78%) 4

TOTAL 29 / 40

PRESENTATION OF THE RELEVANCE OF FASD TO

INSTANT OFFENSE (“THE NEXUS”)

Offense Conduct (Likert Scale: 1=not at all / 5=very much so)

Factor: Offense Conduct E.N.?

Illogical actions w/ high risk of detection 5

Simple offense “plan” 5

Poor escape plan 5

Impulsive conduct in face of unforeseen events (e.g., victim responses)

5

Aggressive over-reaction to unforeseen events 5

More sophisticated co-defendants (if applicable) 3

TOTAL 28 / 30

GRAPHIC PRESENTATION OFTHE DEFENDANT’S

FAS-RELATEDFACIAL 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, GA

Proc. Intl. Soc. Mag. Reson. Med. 11 (2003) 2240

NormalDefendant

A PICTURE IS A PICTURE, NOT A PANACEA

HOSKINS V. STATE702 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

“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, Arizona2007

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

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

South Carolina v. Stanko(2006)

“Brain Scanning in the Courts: The Story So Far” Marchant G, J.D., Ph.D.,Orozco S., J.D. CandidateSandra Day O’Connor College of Law, Arizona2007http://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


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?


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 EVALUATIONOUT OF AREA & WITH REPORTS

ELEMENT HOURS COST


ELEMENT HOURS COST

Neuropsychological Testing 27 $6750


ELEMENT HOURS COST


Functional Psychology Evaluation

32 $8000


ELEMENT HOURS COST


Functional Psychology Evaluation

32 $8000

FASD Medical/Diagnostic Evaluation

24 $8500

NATALIE NOVICK BROWN, PH.D.PROGRAM DIRECTOR

EUGENE NUNNERY3 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 HISTORY3 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 HISTORY3 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 conductJury Decision: HUNG JURYJudge’s Decision: LIFE IN PRISON

FASDEx FUNCTIONAL INDEXSubscales

• Parenting History • FASDEx Academic • FASDEx Mental Health • FASDEx Cognitive-Behavioral • Offense Conduct • Arrest Conduct

OFFENSE CONDUCT (Likert Scale: 1=not at all / 5=very much so)

Factor: Offense Conduct Eugene Nunnery

Illogical actions w/ high risk of detection 5

Simple offense “plan” 5

Poor escape plan 5

Impulsive conduct in face of unforeseen events (e.g., victim responses)

5

Aggressive over-reaction to unforeseen events 5

More sophisticated co-defendants (if applicable) 3

TOTAL 28 / 30

SUMMARY:FASDEx FUNCTIONAL INDEX

Offense Conduct Screen: 28/30Arrest Conduct Screen: 24/30Parenting History Screen: 28/30Academic Phenotype: 22/30Mental Health Phenotype: 29/30Cognitive-Behavioral Phenotype:30/30

Secondary Disabilities Phenotype: 29/40

FUNCTIONAL INDEX = 190 / 220

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 do 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.”

PAUL CONNOR, PH.DNEUROPSYCHOLOGY DIRECTOR

ROLE OF NEUROPSYCHOLOGYIN THE DIAGNOSIS OF FASD

• Identify pattern of current strengths and weaknessesof 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 PROFILE: JE

NEUROPSYCHOLOGICAL PROFILE: RR

NEUROPSYCHOLOGICAL PROFILE: EJ

NEUROPSYCHOLOGICAL PROFILE: KJ

NEUROPSYCHOLOGICAL PROFILES COMBINED

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

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



Mean/SD


difference)


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)

Total Suggestibility 17.8/5.3 10.9/6.0 (-1.2)



Mean/SD


difference)


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)

Total Suggestibility 17.8/5.3 7.5/5.3 (-1.9) 10.9/6.0 (-1.2)

HON. ANTHONY P. WARTNIK, J.D., JUDGE (RETIRED)LEGAL DIRECTOR

RELEVANCE OF FASD IN THE LEGAL ARENA

Pretrial Stage:• Competency–Waiving Miranda/Right against self-

incrimination– Consent to search, – Competency to proceed to trial

• Plea negotiation


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


Trial/Sentencing• Mitigation • Future dangerousness


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 deathThe 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 paroleHeld:* 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 paroleHeld:* 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 courtHeld:* 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 alcoholismTwo 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 reportsHeld:* 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 threepsychiatrists who had each administered tests toNelson. Each concluded that he met each of theCriteria. 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 View

“Foolish, “Behold,thou

Drunken, shalt conceivehairbrain and bear awomen most son: And now,often bring drink no wineforth children or strong

drink.”like unto them-selves.” - Aristotle in - Judges 13.7

Problematica

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?

• “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); and3. 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.

WHY AM I INVOLVED?

CONTACT INFO

www.FASDExperts.com

1700 Seventh Avenue, Suite 210Seattle, WA 98101

(206)624-3800

CONTACT INFO

Richard S. Adler, MD, Medical Director(206) [email protected]

Dr. Natalie Novick Brown, Ph.D, Program Director(206)[email protected]

Dr. Paul Connor, Ph.D., Neuropsychological Director (206) 940-1106 [email protected]

Hon. Anthony P. Wartnik, J.D., Judge (Retired),Legal Director(206) [email protected]

EXPERTISE YOU NEED TO DEFEND A CAPITAL CASE IN 2010 3 rd Interdisciplinary Program UW School of Law & Washington Death Penalty Assistance Center William.

Documents

fasd slide

client slide

appointment slide

nexus slide

structure slide

panacea slide

normaldefendant slide

medical director slide