Fetal Alcohol Spectrum Disorders

376 Pages·2012·2.53 MB·English

F A S
ETAL  LCOHOL  PECTRUM 

D (FASD):  
ISORDERS   

W Y N K
HAT  OU  EED  TO  NOW TO 

H Y C  
ELP  OUR  LIENTS

Presented by 

The American Bar  Association 

Section of Litigation  

and the ABA Center for Continuing Legal Education
American Bar Association 
Center for Continuing Legal Education 
321 North Clark Street, Suite 1900 
Chicago, IL 60654‐7598 
www.americanbar.org/cle   
800.285.2221  

 CDs, DVDs, ONLINE COURSES, DOWNLOADS, and COURSE MATERIALS 
ABA self‐study products are offered in a variety of formats. To take advantage of our full range 
of options, visit the ABA Web Store at www.ShopABA.org. 

The materials contained herein represent the opinions of the authors and editors and should not be 
construed to be the action of the American Bar Association Section of Litigation or the Center for 
Continuing Legal Education unless adopted pursuant to the bylaws of the Association. 

Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and 
readers are responsible for obtaining such advice from their own legal counsel. This book and any forms 
and agreements herein are intended for educational and informational purposes only. 

© 2012 American Bar Association. All rights reserved.  

This publication accompanies the audio program entitled “Fetal Alcohol Spectrum Disorders (FASD): 
What You Need to Know to Help Your Clients” broadcast on June 12, 2012 (Event code: CEL2JUN).
TABLE OF CONTENTS 

1.  FASD Legal Issues Case Law 
  Anthony P. Wartnik 

2.  Changing Public Policy With the Juvenile Courts: What Works? 

3.  Report to the House of Delegates 

4.  Fetal Alcohol Spectrum Disorders: Competency‐Based Curriculum Development Guide 

5.  FASD Birth Mother Interview 

6.  FASD Prevention 

7.  FASD Screening Questionnaire 

8.  Fetal Development Chart 

9.  FASD: What Everyone Should Know 

10. FASD: What the Foster Care System Should Know 

11. FASD: What the Justice System Should Know 

12. FASD Offender Table 

13. Presentation Slides 

Discuss This Course Online 

Visit http://www.americanbar.org/groups/cle/course_content/cle_discussion_boards.html 
to access the discussion board for this program. 

Discussion boards are organized by the date of the original program,  

which you can locate on the preceding page of these materials.
1
FASD Legal Issues Case Law
By Anthony P. Wartnik, Judge (Retired)

The following issues may arise in cases involving FASDs: Right to
diagnosis (e.g.) the right to expert witnesses and judicial
preference for hands-on expert examination of defendant;
mitigation and timeliness of diagnosis and presentation thereof for
sentencing; false confessions; testimony by victims/witnesses with
FASD; competency to stand trial, enter a plea, waive Miranda;
diminished capacity; vulnerable victims due to having FASD;
sentencing; ineffective assistance of counsel; educational rights
under federal IDEA law and right to meaningful IEP; child welfare
custody and termination of parental rights; and SSI.

Underlying the framework for the case law regarding FASD that
has developed is several realities: FASD results from damage to
the brain of a fetus due to the consumption of alcohol by women
while pregnant. Put another way, as stated by the Supreme Court
of Florida in Dillbeck v. State, 643 So.2d 1027 (Fla. 1994),
“Just as the harmful effects of alcohol on the mature brain of
an adult imbiber is a matter within the common
understanding, so too is the detrimental effect of this
intoxicant on the delicate, evolving brain of a fetus held in
utero, . . . we can envision few things more certainly beyond
one’s control than the drinking habits of a parent prior to
one’s birth.”;
secondly,
“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), keeping in mind that people with FASD often do not
possess rational, autonomous and choosing capabilities;
1
finally, as stated in R. v. Ruzic, S.C.R. 687, 694 (Supreme Court
of Canada 2001),
“This is the fundamental condition upon which criminal
responsibility reposes. Individuals have the capacity to
reason right from wrong, and thus choose between right and
wrong.
It is these dual capacities – reason and choice – which give
the moral justification to imposing criminal responsibility
and punishment on offenders.
If a person can reason right from wrong and has the ability to
choose right from wrong, then attribution of responsibility
and punishment is morally justified or deserved when that
person consciously chooses wrong.”

The following cases merit consideration when representing a client
with FASD.

Right to diagnosis, expert witnesses, and judicial preference for
hands-on examination of client:

d th
Castro v. Oklahoma, 71 F.3 1502 (10 Cir. 1995): Castro
was convicted of murder and sentenced to death. The court held
that he was entitled to a court appointed expert at public expense to
help develop evidence regarding five different problems, one of
which was FAS/FAE. The court concluded that a criminal
defendant is entitled to such experts provided that a substantial
showing is made that his mental state is in dispute and is relevant
to the outcome of the case, to either the guilt determination or to
the sentence.

Lambert v. Blodgett, 248 F.Supp.2d 988 (E.D. WA 2003): Duty
of counsel to provide experts with meaningful information.

2
Hicks. V. Schofield, 599 S.E.2d 156 (GA 2004): Expert could not
definitively diagnose MR without examining the defendant.

Mitigation, timeliness of diagnosis and presentation thereof for
sentencing v. loss of trial court jurisdiction – FASD and nexus
equal mitigation:

Rompilla v. Beard, 545 U.S. 374 (2005): Duty to obtain prison,
school, medical records, etc. that might reveal significant
mitigating evidence and or which would likely be relied on by the
prosecutor for aggravation.

th
Silva v. Woodford, 279 F.3d 825 (9 Cir.2002):
Duty of counsel to investigate FAS for possible mitigation

th
Stankewitz v. Woodford, 365 F.3d 706 (9 Cir. 2004): 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.”

People v. W. 564 N.W.2d 903 (Mich. C/A 1997):
The trial judge imposed sentence, later granting a motion to
modify based on newly presented psychological reports, and then
reduced the original sentence. 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.

In the Matter of the Welfare of J.R.T., No. A03-242, 2004 W.L.
614804 (Minn. C/A 2004) (Not cited for precedential value):
J.R.T. challenged juvenile court’s certification to adult court on
murder second degree arguing diminished culpability due to lack
of substantial capacity for judgment at the time of the offense due
to his major depression, conduct disorder and FAS/FAE. The
3
court denied defendant’s challenge because he failed to present
evidence of how the FAS or other conditions affected his judgment
on the day of the crime (e.g.) failure to show a nexus between the
disorder and the criminal conduct.

False confessions – eagerness to please:

State v. Christoph, 2000 WL 1854134 (Wn.App., Div. 3, not
cited
for precedential value): Juvenile with FAS who told staff member
at residential psychiatric facility that she had repeatedly sexually
abused her younger sister, was charged and pled guilty. The Court
of Appeals held that she was denied effective assistance of counsel
due to fact that there was no evidence of a crime other than her
statement to the staff member because the police never interviewed
the sister and counsel failed to conduct an independent
investigation of any kind; therefore, there was no showing of the
corpus delicti.

Testimony by victims/witnesses with FASD – impaired memory:

State v. Goldenstein, 505 NW2d 332 (Minn. C/A 1993): The trial
judge ruled that the three FAS child victims of sexual abuse were
incompetent to testify and let their out of court statements into
evidence. The judge refused to permit testimony of an FASD
expert regarding the impact FAS has on child behavior and ability
to remember and describe events. The Court of Appeals
overturned the conviction, holding that if medical records do, in
fact, contain a FAS diagnosis, it would directly affect the
credibility of the children, would be helpful to the defense, and
would assist the jury in discharging its fact finding duty. It also
found that the trial court violated defendant’s constitutional rights
when it excluded evidence that the children had made false
4
allegations of sexual abuse against another person.

Competency to stand trial, enter plea, waive Miranda Rights – can
defendant with FASD assist counsel in his/her own defense given
the deficits (problems grasping abstract concepts?

U.S. v. Dusky, 362 U.S. 402, 403 (1960): Established the rule for
competency.

Drope v. Missouri, 420 U.S. 162, 171-72 (1975): Refined U.S. v.
Dusky into four (4) parts, providing that a defendant must be able
“to assist in preparing the defense, thus, to be competent, a
defendant must be able to (1) consult with the lawyer with a
reasonable degree of rational understanding, (2) otherwise assist in
the defense, (3) have a rational understanding of the criminal
proceeding, and (4) have a factual understanding of the
proceedings.”

U.S. v. Duhon, 104 F.Supp.2d 663 (2000): “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 (The same can be said about FASD since this
population is very susceptible to suggestibility).” The trial court in
Duhon recognized the difference between incompetency due to
mental illness and incompetency due to mental retardation, and the
need to utilize different criteria for making those competency
determinations. The court wrestled with the fact that an erroneous
determination of competence “threatens a fundamental component
of our criminal justice system” – the basic fairness of the trial
itself.

In the Matter of S.M.S., a Youth, 225 P.3d 781 (Mont. 2010):
Sixteen year old was convicted of sexually offending his 6 year old
5
sister and appealed trial court’s denial of motion to suppress
confession. He contended that his cognitive delay rendered
involuntary his confession and waiver of Miranda rights. The
relevant statute provide that a 16 year old can effectively waive his
Miranda rights without a parent or attorney present. The juvenile
suffered from a very low level of intellectual functioning, needed
special education, and had FAS, PTSD, and ADHD as confirmed
by four separate psychologist reports. Two experts provided
conflicting opinions as to whether the juvenile was capable of
understanding his Miranda rights and possessed the ability to make
a knowing waiver of those rights. The court held that the police
officer took appropriate care in following the statutory directive for
explaining the Miranda warning to the juvenile, and the trial judge
was in the best position to weigh the conflicting testimony of the
experts and to evaluate the videotape of the interview to determine
if S.M.S. confessed voluntarily. (It should be remembered that
people with FASD want to please authority figures, are very
suggestible, and often will answer “yes” to the question, “Do you
understand?”). Keep in mind that people with FASD can look
intelligent on videotape when the questions are being framed to get
particular responses, and there is an imperfect judicial
understanding as to the impact of FASD on the ability to make
knowing, intelligent and voluntary admissions.

One must wonder whether the experts both understood the problem
and whether this circumstance may have led the trial court and
appellate court to not understand the problem, since they both
seemed to put a lot of weight on the literal pronunciations of the
statute they were applying and the care taken by the police officer,
and may not have looked as carefully at the cognitive and
functional deficits and how that may have led to S.M.S. making an
unknowing, unintelligent and involuntary admission. Additionally,
if the experts had testified that S.M.S. functioned at an eight year
old level, would that have made a difference?

6