2010 Appellate Judicial Attorneys Institute October 27, 2010 Burlingame, CA
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Transcript of 2010 Appellate Judicial Attorneys Institute October 27, 2010 Burlingame, CA
2010 Appellate Judicial Attorneys Institute October 27, 2010Burlingame, CA
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
http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/ accessed October 26, 2010.
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 Clemency Board inquiry included:
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
“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 SYNDROMECAMBRIDGE, MA: HARVARD UNIVERSITY PRESS, 2005, 154.
CALIFORNIA GOVERNOR PETE WILSON, 1992IN 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 SYNDROMECAMBRIDGE, MA: HARVARD UNIVERSITY PRESS, 2005, 154.
CALIFORNIA GOVERNOR PETE WILSON, 1992IN RE: THE CLEMENCY APPEAL OF
ROBERT ALTON HARRIS
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 TERMTRIAL 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 TERMTRIAL JUDGE NEVER WAS TOLD OF HIS BRAIN DAMAGE
Oct. 21, 2010 A. Bates Butler III , Former US Attorney for Arizona
The Arizona Republic
FASD SHOULD BE RAISED FASD SHOULD BE RAISED AS EARLY AS POSSIBLE AS EARLY AS POSSIBLE IN THE LEGAL PROCESSIN THE LEGAL PROCESS
JUST LIKE MENTAL RETARDATION, JUST LIKE MENTAL RETARDATION, FASD MUST BE PRESUMED FASD MUST BE PRESUMED
TO BE PRESENT TO BE PRESENT UNTIL SHOWN TO BE OTHERWISEUNTIL SHOWN TO BE OTHERWISE
GUDJONSSON SUGGESTIBILITY SCALE STORY 2 (GSS-2)
GSS2 Subscale
FASD Sample (n=7)
Mean/SD
UKGeneral
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 **
* = Significant at < .05** = Significant at < .01*** = Significant at <.005
HIGH INDEX OF SUSPICIONHIGH INDEX OF SUSPICION
DILIGENT MITIGATION EFFORTSDILIGENT MITIGATION EFFORTS
STEP-WISE EXPERT CONSULTATIONSTEP-WISE EXPERT CONSULTATION
SYLLABUSSYLLABUS
1.1. Novick Brown: FASD “Red Flags”Novick Brown: FASD “Red Flags”
2.2. Novick Brown: FASD throughout the legal Novick Brown: FASD throughout the legal
process – theory and practice/ case examplesprocess – theory and practice/ case examples
3.3. Adler: Practical “Action Steps”Adler: Practical “Action Steps”
4.4. Adler: Summary/ Q & AAdler: Summary/ Q & A
BIRTH MOTHER
Substance abuse history Prostitution history Cognitive impairment Criminal history CPS history Absent during client’s childhood Psychiatric history (e.g., depression, psychosis) Extensive medical history Death from alcohol-related causes
CLIENT RECORD REVIEW
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
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)
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
Associated Features
Epicanthal folds
Flat midfaceLow nasal bridge
Short noseMinor ear anomalies
Micrognathia
1. Short palpebral
fissures
2. Flat philtrum
3. Thin upper lip
Streissguth (1994)
ATTORNEY-CLIENT INTERVIEWS
Immature, naïve, eager to please (lower IQ) Stubborn, “difficult” (IQ-related) Has problems providing sequential, detailed
narrative ( lots of: “one thing led to another”)
Adds little to conversations (few questions about defense details) / exclusive focus on length of incarceration time
Doesn’t remember what you tell him from appointment to appointment
INSTANT OFFENSE
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
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
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”
General crimes (60%) shoplifting/theft (36%) burglary (15%) DV (15%) assault (17%)
Sexual crimes (50%) 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 TRIALCOMPETENCY TO STAND TRIAL
State v. Jesse James Scholler, Snohomish County Superior court Case Nos. 08-8-00426-1, 08-9-00443-1
17 y/o male charged with 2 cts Arson 1
Judge Thomas J. Wynne (August 6, 2008)
"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."
SENTENCINGSENTENCING
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:Vulnerable Victim
SEXUAL ASSAULT (CO, 2008) Enhanced sentence for perpetratorSEXUAL 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)
" NEUROIMAGING IS NEVER THE FIRST OPTION AND IT SHOULD ONLY
BE DONE ADVISEDLY."
APRIL 23, 2010HABEAS ASSISTANCE & TRAINING
COUNSEL PROJECTNATIONAL SEMINAR
SEATTLE, WA
JOHN BLUME:
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” 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
THE RIGHT TO DIAGNOSIS BY EXPERTS AND RELATED ISSUES
1. Castro v. Oklahoma, 71 F.3d 1502 (10th Cir. 1995), p. 10 (Court Appointed and publicly paid for).
2. Lambert v. Blodgett, 248 F.Supp.2d 988 (E.D. WA 2003) p. 9 (Duty to provide experts with meaningful information).
3. Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002) p. 98 (Duty to investigate FAS for possible mitigation)
4. 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. 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.”)