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2010 Appellate Judicial Attorneys Institute  October 27, 2010 Burlingame, 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. 2010 Appellate Judicial Attorneys Institute  October 27, 2010 Burlingame, CA.

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2010 Appellate Judicial Attorneys Institute  October 27, 2010 Burlingame, CA

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  1. FETAL ALCOHOL SPECTRUM DISORDERS: FROM COMPETENCY TO STAND TRIAL TO CLEMENCYRichard S. Adler, M.D.Natalie Novick Brown, Ph.D.www.FASDExperts.com Seattle, WA 2010 Appellate Judicial Attorneys Institute October 27, 2010Burlingame, CA

  2. http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/http://www.good.is/post/california-s-got-a-new-death-chamber-um-yay/ accessed October 26, 2010.

  3. FASD

  4. 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

  5. BRANDON RHODE Neuropsychological testing – organic impairment attributed to substance use. FASD suspected, but mother denied alcohol use “prior to pregnancy” Death sentence

  6. 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

  7. 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

  8. 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.

  9. 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

  10. 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

  11. 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.

  12. 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.

  13. JEFFREY LANDRIGAN

  14. 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 ArizonaThe Arizona Republic Justice Clarence Thomas, writing for the slim majority, said the never-presented evidence "would not have changed the result.“ The sentencing judge has now stated under oath that if she knew about Landrigan's brain damage, fetal alcohol syndrome, genetic predispositions and parental abandonment, she would not have sentenced him to death.

  15. 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 ArizonaThe Arizona Republic Justice Clarence Thomas, writing for the slim majority, said the never-presented evidence "would not have changed the result.“ The sentencing judge has now stated under oath that if she knew about Landrigan's brain damage, fetal alcohol syndrome, genetic predispositions and parental abandonment, she would not have sentenced him to death.

  16. FASD SHOULD BE RAISED AS EARLY AS POSSIBLE IN THE LEGAL PROCESS

  17. JUST LIKE MENTAL RETARDATION, FASD MUST BE PRESUMED TO BE PRESENT UNTIL SHOWN TO BE OTHERWISE

  18. SUGGESTIBILITY

  19. GUDJONSSON SUGGESTIBILITY SCALE STORY 2 (GSS-2) * = Significant at < .05 ** = Significant at < .01 *** = Significant at <.005

  20. HIGH INDEX OF SUSPICION • DILIGENT MITIGATION EFFORTS • STEP-WISE EXPERT CONSULTATION

  21. SYLLABUS • Novick Brown: FASD “Red Flags” • Novick Brown: FASD throughout the legal process – theory and practice/ case examples • Adler: Practical “Action Steps” • Adler: Summary/ Q & A

  22. NATALIE NOVICK BROWN, PH.D.

  23. SCREENING& RED FLAGS

  24. 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

  25. 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

  26. 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)

  27. WHAT DOESN’T MATTER

  28. Associated Features Epicanthal folds 1. Short palpebral fissures Flat midface Low nasal bridge Short nose Minor ear anomalies 2. Flat philtrum 3. Thin upper lip Micrognathia FAS “Face” in Young Child(From Streissguth and Little, Unit 5, Project Cork, Slide/Teaching Curriculum on Alcohol Use and Its Medical Consequences, 1994) Diagnostic Criteria Streissguth (1994)

  29. FAS Family Resource Institute

  30. WHAT DOES MATTER

  31. 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

  32. 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

  33. 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)

  34. 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)

  35. “FASD CRIMES” • General crimes (60%) • shoplifting/theft (36%) • burglary (15%) • DV (15%) • assault (17%) • Sexual crimes (50%) • promiscuity (26%) • sexual advances, including assault (18%)

  36. 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

  37. COMPETENCY 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)

  38. "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….

  39. “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."

  40. 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

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