REPRESENTING CLIENTSREPRESENTING CLIENTSWITH FASD IN THEWITH FASD IN THE

CRIMINAL JUSTICE SYSTEM:CRIMINAL JUSTICE SYSTEM:

Changing Court AttitudesChanging Court AttitudesRaising FASD at all stagesRaising FASD at all stages

WILLIAM J. EDWARDS, DEPUTY PUBLIC WILLIAM J. EDWARDS, DEPUTY PUBLIC DEFENDERDEFENDER

OFFICE OF THE PUBLIC DEFENDEROFFICE OF THE PUBLIC DEFENDERLOS ANGELES COUNTY, CALIFORNIALOS ANGELES COUNTY, CALIFORNIA

Fetal Alcohol Syndrome Fetal Alcohol Syndrome (FAS) (FAS)

FASFAS is a neuropsychiatric developmental is a neuropsychiatric developmental disorder that is a common public health disorder that is a common public health issue according to the U.S. Surgeon issue according to the U.S. Surgeon General’s 2005 Report. General’s 2005 Report.

A set of mental, physical and neurobehavioral A set of mental, physical and neurobehavioral birth defects caused by exposure to birth defects caused by exposure to alcohol during pregnancy.alcohol during pregnancy.

Today, I’ll cover 4 essentialsToday, I’ll cover 4 essentials

1. What people with FAS & FASD look like at 1. What people with FAS & FASD look like at different agesdifferent ages

2. How their unusual behaviors are related to 2. How their unusual behaviors are related to brain damage from prenatal alcohol exposure brain damage from prenatal alcohol exposure and possibly enhanced by bad environmentsand possibly enhanced by bad environments

3. How can you establish that the mother drank 3. How can you establish that the mother drank alcohol during her pregnancy with this childalcohol during her pregnancy with this child

4. And which experts can make your case. (I’ll 4. And which experts can make your case. (I’ll

also tell you about mistakes I’ve made)also tell you about mistakes I’ve made)

FAS May Include: FAS May Include: A.A. Confirmed prenatal alcohol exposureConfirmed prenatal alcohol exposure

B.B. Evidence of a characteristic pattern of facial Evidence of a characteristic pattern of facial anomalies that includes features such as an anomalies that includes features such as an indistinct philtrum, thin upper lip & small indistinct philtrum, thin upper lip & small eyes.eyes.

C.C. Evidence of growth retardation in at least one Evidence of growth retardation in at least one of the following areas:of the following areas:

1.1. Low Birth Weight - babies born with FAS are Low Birth Weight - babies born with FAS are usually below the third to tenth percentile in their usually below the third to tenth percentile in their birth weight.birth weight.

2.2. Decelerating weight over time not due to nutrition.Decelerating weight over time not due to nutrition.

3.3. Failure To Thrive.Failure To Thrive.

4.4. Disproportional low weight to heightDisproportional low weight to height

FAS Cont.FAS Cont.

D.D. Evidence of central nervous system Evidence of central nervous system dysfunction.dysfunction.

1.1. In many cases the child or adult will have a In many cases the child or adult will have a lower IQ sometimes within the range of lower IQ sometimes within the range of intellectual disability (mental retardation).intellectual disability (mental retardation).

2.2. Structural brain damage.Structural brain damage.

Fetal AlcoholFetal AlcoholSpectrum Disorders Spectrum Disorders (FASD) (FASD)

FASDFASD is an umbrella term used to is an umbrella term used to describe the many different disabling describe the many different disabling effects of prenatal alcohol exposure. effects of prenatal alcohol exposure.

FASDFASD includes FAS and other alcohol- includes FAS and other alcohol-related diagnostic categories such as related diagnostic categories such as ALCOHOL RELATED ALCOHOL RELATED NEURODEVELOPMENTAL DISORDER NEURODEVELOPMENTAL DISORDER (ARND), formerly known as Fetal Alcohol (ARND), formerly known as Fetal Alcohol Effects (FAE). Effects (FAE).

FASDFASD is a developmental disorder is a developmental disorder because of the obstructions and delays because of the obstructions and delays from normal growth patterns and from normal growth patterns and resulting deficits including:resulting deficits including:

Developmental DeficitsDevelopmental DeficitsA.A. ADHD and ADDADHD and ADD

B.B. Mental RetardationMental Retardation

C.C. Learning DisabilitiesLearning Disabilities

D.D. Mental Illness including Bi-polar disorder, Mental Illness including Bi-polar disorder, Oppositional Defiant Disorder, Antisocial Oppositional Defiant Disorder, Antisocial Personality Disorder, Borderline Personality Disorder, Borderline Personality Disorder and DepressionPersonality Disorder and Depression

E.E. Poor memory and recallPoor memory and recall

F.F. Poor planningPoor planning

PRIMARY DISABILITIES PRIMARY DISABILITIES ASSOCIATED WITH ASSOCIATED WITH

FASDFASDGeneral intelligence, mastery of General intelligence, mastery of academics and general level of academics and general level of

adaptive functioning are measures adaptive functioning are measures of “primary disabilities.”of “primary disabilities.”

CognitiveCognitive

A.A. Lower IQ (Lower IQ (may be normal or even giftedmay be normal or even gifted))

B.B. Difficulties with:Difficulties with:1.1. MemoryMemory

2.2. Poor math skills-problems handling moneyPoor math skills-problems handling money

3.3. Self awareness, reflectionSelf awareness, reflection

4.4. Abstract conceptsAbstract concepts

Medical/NeuromotorMedical/Neuromotor Difficulties with:Difficulties with:• Balance, coordinationBalance, coordination• SeizuresSeizures• Growth “FAILURE TO THRIVE”Growth “FAILURE TO THRIVE”• Hyperactivity (present is about 85% of Hyperactivity (present is about 85% of

the children with FAS)the children with FAS)• Middle ear infectionsMiddle ear infections• Eye problems, e.g. severe Eye problems, e.g. severe

nearsightednessnearsightedness• Orthopedic problemsOrthopedic problems• Cardiac anomalies, e.g. heart murmurs, Cardiac anomalies, e.g. heart murmurs,

patent ductus arteriosus, ventricular patent ductus arteriosus, ventricular septal defectseptal defect

Executive FunctioningExecutive Functioning

Difficulties with:Difficulties with:• PlanningPlanning• JudgmentJudgment• Delayed gratificationDelayed gratification• Impulse ControlImpulse Control• Organization skillsOrganization skills• Attention, focus, concentrationAttention, focus, concentration

EmotionalEmotional

A.A. Little ability to recognize feelingsLittle ability to recognize feelings

B.B. Little ability to articulate feelingsLittle ability to articulate feelings

C.C. Mood disordersMood disorders

D.D. Anger/Rage disordersAnger/Rage disorders

E.E. Vulnerability to mental illnessVulnerability to mental illness

Speech/LanguageSpeech/Language

A.A. Parroting of others-speech patternsParroting of others-speech patterns

B.B. Delay in communicationDelay in communication

C.C. TalkativenessTalkativeness

D.D. ConfabulationConfabulation

Interpersonal SkillsInterpersonal Skills

A.A. Inability to read social cluesInability to read social clues

B.B. Inability to empathizeInability to empathize

C.C. Excessive demand for attentionExcessive demand for attention

D.D. Externalization of blameExternalization of blame

E.E. Arrested social developmentArrested social development

Difficulties In Early Difficulties In Early ChildhoodChildhood

A.A. Poor visual focus - “severe Poor visual focus - “severe nearsightedness”nearsightedness”

B.B. Sleep & feeding difficultiesSleep & feeding difficulties

C.C. SeizuresSeizures

D.D. Poor motor coordination - Poor motor coordination - appear to be clumsyappear to be clumsy

E.E. Developmental DelaysDevelopmental Delays

Early Childhood Cont.Early Childhood Cont.

F.F. Distractibility and hyperactivity- “unable Distractibility and hyperactivity- “unable to pay attention or sit still”to pay attention or sit still”

G.G. Difficulty adapting to changeDifficulty adapting to changeH.H. Difficulty following directionsDifficulty following directionsI.I. Born into a dysfunctional family, the Born into a dysfunctional family, the

infant is commonly abandoned in the infant is commonly abandoned in the hospital, orhospital, or put up for adoption by the put up for adoption by the mother, or removed by Child Protective mother, or removed by Child Protective Services.Services.

Difficulties in Mid-Difficulties in Mid-ChildhoodChildhood

A.A. Difficulty understanding / predicting Difficulty understanding / predicting consequencesconsequences

B.B. Emerging discrepancy between Emerging discrepancy between expressive language and comprehensionexpressive language and comprehension

C.C. Hyperactivity - memory deficits - Hyperactivity - memory deficits - impulsivityimpulsivity

D.D. Poor comprehension of social rulesPoor comprehension of social rules

Mid-Childhood Cont.Mid-Childhood Cont.

F.F. ADHD symptoms – “child might get up ADHD symptoms – “child might get up and walk out of the classroom”and walk out of the classroom”

G.G. Academic failure Academic failure

H.H. Special EducationSpecial Education

I.I. Concrete thinking may frustrate Concrete thinking may frustrate relationshipsrelationships

J.J. GullibilityGullibility

Difficulty in AdolescenceDifficulty in Adolescence

A.A. Lying – stealing - truancyLying – stealing - truancy

B.B. Failing to understand consequences of Failing to understand consequences of actionsactions

C.C. Inappropriate sexual behaviorInappropriate sexual behavior

D.D. Low self esteemLow self esteem

E.E. Mental health issuesMental health issues

F.F. Poor choice of companionsPoor choice of companions

Adolescence Cont.Adolescence Cont.

G.G. They may reach an average academic They may reach an average academic level of fourth grade reading, third grade level of fourth grade reading, third grade spelling and only second grade mathspelling and only second grade math

H.H. Adaptive skills in the areas of living, Adaptive skills in the areas of living, communication and socialization skills communication and socialization skills are significantly delayedare significantly delayed

I.I. Unable to grasp such essential concepts Unable to grasp such essential concepts as “cause and effect,” or the “relevance as “cause and effect,” or the “relevance of time”of time”

Difficulties in AdulthoodDifficulties in Adulthood

A.A. Behavior problemsBehavior problems

B.B. Depression - AnxietyDepression - Anxiety

C.C. Alcohol/Drug AddictionAlcohol/Drug Addiction

D.D. SuicidalSuicidal

E.E. Psychotic behaviorPsychotic behavior

F.F. Secondary disabilities may become Secondary disabilities may become dominantdominant

SECONDARY SECONDARY DISABILITIESDISABILITIESSecondary disabilities are those that the Secondary disabilities are those that the

client is not born with, and that could client is not born with, and that could presumably be ameliorated (either fully presumably be ameliorated (either fully or partially) through better or partially) through better understanding and appropriate understanding and appropriate interventions. interventions.

In a 1996 study conducted by Dr. Ann In a 1996 study conducted by Dr. Ann Streissguth from the University of Streissguth from the University of Washington School of Medicine, the Washington School of Medicine, the prevalence of Secondary Disabilities was prevalence of Secondary Disabilities was measured in 473 people with FAS/FASD measured in 473 people with FAS/FASD from ages 6 to 51.from ages 6 to 51.

Secondary DisabilitiesSecondary Disabilities

A.A. Mental Health ProblemsMental Health Problems 90%90%B.B. Disrupted school experienceDisrupted school experience 41%41%C.C. Trouble with the lawTrouble with the law 40%40%D.D. Confinement (Jail, Juv. or Prison)Confinement (Jail, Juv. or Prison) 30%30%E.E. Inappropriate sexual behaviorInappropriate sexual behavior 45%45%F.F. Alcohol and Drug ProblemsAlcohol and Drug Problems 20%20%G.G. Dependent LivingDependent Living 80%80%H.H. Problems with EmploymentProblems with Employment 79%79%

DEVELOPING A SOCIAL DEVELOPING A SOCIAL HISTORY THROUGH HISTORY THROUGH

INTERVIEWS AND INTERVIEWS AND RECORDSRECORDS

Problems Substantiating FAS/FASDProblems Substantiating FAS/FASD

HISTORYHISTORY

MATERNAL HISTORYMATERNAL HISTORY

Mother’s History Mother’s History

A.A. Keep in mind that the mother may have Keep in mind that the mother may have been involved with other toxic been involved with other toxic substances such as glue sniffing, drugs substances such as glue sniffing, drugs and may not have considered alcohol her and may not have considered alcohol her “drug of choice.” Her medical records “drug of choice.” Her medical records may reflect drug use but not the may reflect drug use but not the concomitant alcohol use which is usually concomitant alcohol use which is usually present.present.

B.B. Some women may not realize there is no Some women may not realize there is no safe kind of alcohol, for example, safe kind of alcohol, for example, thinking wine/wine coolers don’t count.thinking wine/wine coolers don’t count.

Mother’s History Cont.Mother’s History Cont.

C.C. Or they may not realize there is no safe Or they may not realize there is no safe time to drink during pregnancy, from time to drink during pregnancy, from conception (just before they found out they conception (just before they found out they were pregnant) to birth. For example, they were pregnant) to birth. For example, they may say no because they quit when they may say no because they quit when they found out they were pregnant. found out they were pregnant.

1.1. NOTE: Alcohol exposure to the fetus during the NOTE: Alcohol exposure to the fetus during the first trimester poses the greatest risk for first trimester poses the greatest risk for physical changes to brain, body and organ physical changes to brain, body and organ development. i.e. birth defects. The central development. i.e. birth defects. The central nervous system (brain) is sensitive to damage nervous system (brain) is sensitive to damage throughout pregnancy.throughout pregnancy.

Mother’s History Cont.Mother’s History Cont.

D.D. Important to tell the birth mother why Important to tell the birth mother why this diagnoses is important:this diagnoses is important:

1.1. Services.Services.

2.2. Treatment.Treatment.

3.3. Intervention.Intervention.

4.4. Placement in school.Placement in school.

5.5. Prevent next generation affected.Prevent next generation affected.

6.6. Prevent subsequent FASD births (77%).Prevent subsequent FASD births (77%).

Assessing Maternal Alcohol Assessing Maternal Alcohol UseUse

through interview of the through interview of the MotherMotherA.A. When there are signs that the mother When there are signs that the mother

drank there must be an investigation drank there must be an investigation that reaches 3 generations. Counsel will that reaches 3 generations. Counsel will have to look at the history of drinking by have to look at the history of drinking by the mother the mother and and the grandmother. the grandmother.

B.B. Counsel must also review all family Counsel must also review all family medical conditions and vulnerability to medical conditions and vulnerability to cultural, environmental, nutritional and cultural, environmental, nutritional and psychological issues including poverty.psychological issues including poverty.

C.C. When asking about use of any substances, When asking about use of any substances, frame the question by asking “How frame the question by asking “How many…” rather than “Did you…”many…” rather than “Did you…”

D.D. Asking “How many…” gives the mother Asking “How many…” gives the mother permission to acknowledge that she did permission to acknowledge that she did drink during pregnancy.drink during pregnancy.

E.E. This manner is more effective when This manner is more effective when interviewing others also (spouse, siblings, interviewing others also (spouse, siblings, etc).etc).

F.F. Assess substance use separately for the Assess substance use separately for the time periods:time periods:

1.1. prior to pregnancy.prior to pregnancy.

2.2. prior to pregnancy recognition.prior to pregnancy recognition.

3.3. post pregnancy recognition.post pregnancy recognition.

Women are more likely to acknowledge alcohol Women are more likely to acknowledge alcohol use prior to pregnancy than after pregnancy use prior to pregnancy than after pregnancy recognition. recognition.

Drinking PATTERNS from time periods prior to Drinking PATTERNS from time periods prior to pregnancy are predictive of outcomes.pregnancy are predictive of outcomes.

G.G. Assess pattern of use.Assess pattern of use.1.1. Ask about both typical and maximum Ask about both typical and maximum

consumption: “Before you knew you were consumption: “Before you knew you were pregnant what was the most number of pregnant what was the most number of drinks you drank on any one occasion. drinks you drank on any one occasion.

2.2. Ask “What type of alcohol beverage do you Ask “What type of alcohol beverage do you prefer?” to better allow mother to estimate prefer?” to better allow mother to estimate alcohol use.alcohol use.

3.3. Ask the size of the drinking container, Ask the size of the drinking container, keeping in mind that malt liquors have a keeping in mind that malt liquors have a higher concentration of alcohol.higher concentration of alcohol.

Good positively stated question to ask:Good positively stated question to ask:

In the 30 days BEFORE you found out you In the 30 days BEFORE you found out you were pregnant, how many drinks did you were pregnant, how many drinks did you have?have?

Mother’s Medical IssuesMother’s Medical Issues

A.A. Diabetes – associated with heightened Diabetes – associated with heightened rates of birth defects, including central rates of birth defects, including central nervous damage. Maternal diabetes can nervous damage. Maternal diabetes can be argued to greatly increase the risk of be argued to greatly increase the risk of fetal alcohol exposure.fetal alcohol exposure.

(Reproductive Toxicology 24: 31-41 (Reproductive Toxicology 24: 31-41 (2007))(2007))

B.B. Was the mother Zinc deficient during Was the mother Zinc deficient during pregnancy?pregnancy?

Medical & Psychological HistoryMedical & Psychological HistoryRecords to show a maternal history of Records to show a maternal history of

alcohol use by the motheralcohol use by the mother• Mother’s hospitalizations (medical or Mother’s hospitalizations (medical or

psychiatric)psychiatric)• Mental and physical injuries (neurological Mental and physical injuries (neurological

and psychological records)and psychological records)• records showing alcohol and drug use records showing alcohol and drug use

(arrest records showing DUI or public (arrest records showing DUI or public intoxication or even domestic violence intoxication or even domestic violence records)records)

D.D. Prenatal care records and postnatal Prenatal care records and postnatal follow upfollow up

E.E. Birth records showing any birth traumaBirth records showing any birth trauma

F.F. Social service records (dependency Social service records (dependency records if the client and siblings were records if the client and siblings were taken away from the mother)taken away from the mother)

G.G. Death certificate of the motherDeath certificate of the mother

Medical & Psychological Medical & Psychological History cont.History cont.

CLIENT HISTORYCLIENT HISTORY

Client’s HistoryClient’s History

A.A. Previous Diagnosis May Have Been Previous Diagnosis May Have Been Incorrect or Incomplete.Incorrect or Incomplete.

1.1. Antisocial personality disorder.Antisocial personality disorder.

2.2. ADHD/ADD - placed on Ritalin.ADHD/ADD - placed on Ritalin.

3.3. Speech and language handicaps.Speech and language handicaps.

4.4. Learning disabilities.Learning disabilities.

5.5. Behavioral problems, ODD, RAD, Conduct Behavioral problems, ODD, RAD, Conduct Disorder.Disorder.

Birth RecordsBirth Records

C.C. Look at the weight, height (length) and Look at the weight, height (length) and head circumference of the child.head circumference of the child.

1.1. In one case my client was born with cocaine In one case my client was born with cocaine in his system and a social worker was called in his system and a social worker was called to interview the mother.to interview the mother.

2.2. In another case my client was hospitalized In another case my client was hospitalized because he had lost so much weight at because he had lost so much weight at birth-”Failure To Thrive.”birth-”Failure To Thrive.”

3.3. But remember, most people with FASD do not But remember, most people with FASD do not have physical and or cognitive disabilities have physical and or cognitive disabilities and still have serious brain based and still have serious brain based neurobehavioral disabilities.neurobehavioral disabilities.

Client’s Educational Client’s Educational RecordsRecords

A.A. All academic and attendance recordsAll academic and attendance records

B.B. Special education records including Special education records including eligibility and placement reports (many eligibility and placement reports (many kids qualify for more than one category)kids qualify for more than one category)

C.C. All IEP reports (goals and All IEP reports (goals and accommodations)accommodations)

D.D. (Investigate the parent’s failure to follow (Investigate the parent’s failure to follow up with the IEP meetings to request the up with the IEP meetings to request the required services for the client)required services for the client)

E.E. Was there any IQ testing completed.Was there any IQ testing completed.

Juvenile Court/Juvenile Juvenile Court/Juvenile Delinquency RecordsDelinquency Records

D.D. Get all juvenile delinquency recordsGet all juvenile delinquency records1.1. All social services reports, psychological All social services reports, psychological

records.records.2.2. If the client was incarcerated you will need to If the client was incarcerated you will need to

get all educational records, social histories.get all educational records, social histories.

USE OF EXPERTSUSE OF EXPERTS

Experts ListExperts List

A.A. Social workerSocial workerB.B. NeurologistNeurologistC.C. Dysmorphologist and/or GeneticistDysmorphologist and/or GeneticistD.D. Pediatric DoctorPediatric DoctorE.E. Dr. Fred Bookstein, University of Dr. Fred Bookstein, University of

Washington, Seattle (Formats an MRI to Washington, Seattle (Formats an MRI to look at brain damage caused by alcohol)look at brain damage caused by alcohol)

Experts List Cont.Experts List Cont.

F.F. NeuropsychologistNeuropsychologist1.1. Adaptive behavioral testingAdaptive behavioral testing2.2. Executive functioning testingExecutive functioning testing3.3. Social/Emotional testingSocial/Emotional testing4.4. Worthwhile to repeat IQ testing, if not recent Worthwhile to repeat IQ testing, if not recent

or from reliable source.or from reliable source.

Bookstein ResearchBookstein Research

Corpus callosum Corpus callosum abnormalitiesabnormalities

Mattson, et al., 1994; Mattson & Riley, 1995; Riley et al., 1995

Capital OffenseCapital Offense

Some examples of legal questions Some examples of legal questions commonly confronting capital commonly confronting capital lawyers:lawyers:

• How does FAS/FASD explain or contribute How does FAS/FASD explain or contribute to the behavior of this client, especially to the behavior of this client, especially as it relates to the crime?as it relates to the crime?

• How do we know that the client was How do we know that the client was affected with FAS/FASD at the time of the affected with FAS/FASD at the time of the crime?crime?

C.C. How does the client’s multiple mental How does the client’s multiple mental health difficulties interact with each health difficulties interact with each other to result in the type of behavior other to result in the type of behavior evidenced by the client?evidenced by the client?

D.D. Does the client suffer from FAS/FASD Does the client suffer from FAS/FASD that the jury might find mitigating even that the jury might find mitigating even though FAS/FASD did not directly lead to though FAS/FASD did not directly lead to the client’s criminal behavior?the client’s criminal behavior?

Capital Offense cont.Capital Offense cont.

E.E. Why was the client not diagnosed with Why was the client not diagnosed with FAS/FASD before he was charged with FAS/FASD before he was charged with the crime?the crime?

F.F. If the client was never successfully If the client was never successfully treated for his FAS/FASD, does he still treated for his FAS/FASD, does he still require, and is he still likely to benefit require, and is he still likely to benefit from treatment? And if so is appropriate from treatment? And if so is appropriate treatment available in a prison setting?treatment available in a prison setting?

Capital Offense cont.Capital Offense cont.

G.G. How will the client’s FAS/FASD impact his How will the client’s FAS/FASD impact his ability to adjust to life in prison?ability to adjust to life in prison?

1.1. Is he at risk of being harmed by others? Is he at risk of being harmed by others?

2.2. At risk of harming himself ?At risk of harming himself ?

3.3. At risk of harming others?At risk of harming others?

4.4. Will treatment improve his ability to adjust to Will treatment improve his ability to adjust to life in prison?life in prison?

Capital Offense cont.Capital Offense cont.

Ineffective Assistance Of Ineffective Assistance Of CounselCounsel

A.A. Was there sufficient indication of Was there sufficient indication of FAS/FASD that the defense attorney FAS/FASD that the defense attorney should have made some sort of should have made some sort of investigation?investigation?

B.B. How much evidence of alcohol use by How much evidence of alcohol use by the defendant’s mother is sufficient to the defendant’s mother is sufficient to warrant continued investigation? YOU warrant continued investigation? YOU DO NOT NEED HEAVY DRINKING BY DO NOT NEED HEAVY DRINKING BY THE MOTHER!!THE MOTHER!!

Ineffective Assistance Of Ineffective Assistance Of Counsel cont.Counsel cont.

C.C. WAS the proper expert retained?WAS the proper expert retained?

D.D. Silvia v. Woodford 279 F. 3d 825 (9th Silvia v. Woodford 279 F. 3d 825 (9th Circuit 2002).Circuit 2002).

E.E. Schriro v. Landrigan  550 U.S. 465 Schriro v. Landrigan  550 U.S. 465 (2007).(2007).

F.F. Rompilla v. Beard 545 U.S. 374 (2005).Rompilla v. Beard 545 U.S. 374 (2005).

PENALTYPENALTY PHASEPHASE

ISSUESISSUES

Societal And Maternal FailuresSocietal And Maternal FailuresEven Before Birth Even Before Birth

A.A. Client is a victim, even before birth of Client is a victim, even before birth of society’s failure to help his mother deal society’s failure to help his mother deal with her alcohol abuse.with her alcohol abuse.

B.B. After the client was born, his problems After the client was born, his problems were never accurately diagnosed or were never accurately diagnosed or treated. He most likely had a previous treated. He most likely had a previous diagnosis that was other than FAS/FASD.diagnosis that was other than FAS/FASD.

Societal And Maternal FailuresSocietal And Maternal FailuresEven Before Birth Cont.Even Before Birth Cont.

C.C. Problems with Lack of REMORSEProblems with Lack of REMORSE1.1. The client’s failure to understand cause and The client’s failure to understand cause and

effect and the implications of his actions effect and the implications of his actions should help the jury understand the clients should help the jury understand the clients inability to express remorse.inability to express remorse.

2.2. The client’s desire to please may cause him The client’s desire to please may cause him to smile at people in the courtroom and to smile at people in the courtroom and problems with attention may cause him to problems with attention may cause him to appear unconcerned with the proceedings.appear unconcerned with the proceedings.

Adjustment To PrisonAdjustment To Prison

A.A. Red flag for jury that requires us to Red flag for jury that requires us to explain. THE FASD DAMAGE that our explain. THE FASD DAMAGE that our client has cannot be fixed. It is like client has cannot be fixed. It is like having an intellectual disability.having an intellectual disability.

B.B. They are in need of consistent, They are in need of consistent, structured environments requiring few structured environments requiring few decisions. Look at prior incarceration decisions. Look at prior incarceration records if they exist.records if they exist.

LEARNING FROMLEARNING FROMMY MISTAKESMY MISTAKES

My Misperceptions and My Misperceptions and MiscommunicationsMiscommunications

1.1. I thought the behavioral problems of my I thought the behavioral problems of my client, characteristic of FAS/FASD, were client, characteristic of FAS/FASD, were the result of poor parenting or a bad the result of poor parenting or a bad environment…environment…

2.2. And didn’t look at the disability as a And didn’t look at the disability as a result of result of brain damagebrain damage, instead of the , instead of the behavioral manifestation of an emotional behavioral manifestation of an emotional disorder.disorder.

3.3. I thought the client had to have a low IQ I thought the client had to have a low IQ and be diagnosed with an “intellectual and be diagnosed with an “intellectual disability” to have FAS/FASD. disability” to have FAS/FASD.

IQ scores alone fail to give an adequate IQ scores alone fail to give an adequate picture of organic brain damage and picture of organic brain damage and deficits in adaptive behavior.deficits in adaptive behavior.

4.4. Even though my client with FAS/FASD Even though my client with FAS/FASD had a higher IQ, I never had him tested had a higher IQ, I never had him tested by a psychologist, I used a psychiatrist.by a psychologist, I used a psychiatrist.

A.A. Should have hired a neuro-psychologist or a Should have hired a neuro-psychologist or a psychologist to administer the “ VABS psychologist to administer the “ VABS Vineland Adaptive Behavioral Scale” or other Vineland Adaptive Behavioral Scale” or other neuropsychological testing.neuropsychological testing.

B.B. VABS often reveals deficits in adaptive VABS often reveals deficits in adaptive functioning that are more profound than functioning that are more profound than deficits observed from IQ testing or deficits observed from IQ testing or achievement tests.achievement tests.

C.C. Did not know that VABS testing revealed that Did not know that VABS testing revealed that my client: failed to consider consequences of my client: failed to consider consequences of his actions, was unresponsive to social clues, his actions, was unresponsive to social clues, and often lacked reciprocal friendships.and often lacked reciprocal friendships.

5.5. I never tried to educate my DA and judge I never tried to educate my DA and judge and assumed that they understood and assumed that they understood FAS/FASD.FAS/FASD.

6.6. And assumed that my client who had And assumed that my client who had FAS/FASD could show remorse to the FAS/FASD could show remorse to the Probation Officer and the Judge in court.Probation Officer and the Judge in court.

7.7. I failed to notice when my client was I failed to notice when my client was telling his story there were blanks in his telling his story there were blanks in his memory and he was a poor historian.memory and he was a poor historian.

8.8. Never realized my client with FASD did Never realized my client with FASD did not like to be in an environment that was not like to be in an environment that was over-stimulating …….needs to be in a over-stimulating …….needs to be in a quiet room, reduce the number of quiet room, reduce the number of activities…….your expert should have a activities…….your expert should have a quiet room when doing testing.quiet room when doing testing.

9.9. Never realized you need to talk to your Never realized you need to talk to your client with FAS/FASD in concrete client with FAS/FASD in concrete terms…………….Keep It Simple and Short terms…………….Keep It Simple and Short (KISS).(KISS).

10.10. Didn’t know changes in routine schedule Didn’t know changes in routine schedule and planning have the potential to create and planning have the potential to create confusion and dispair for my client confusion and dispair for my client (always go see the client the same time (always go see the client the same time each week while in custody).each week while in custody).

11.11. Never realized that after having my Never realized that after having my client diagnosed with FAS/FASD he would client diagnosed with FAS/FASD he would not automatically receive services in the not automatically receive services in the community and in prison.community and in prison.

Counsel needs to coordinate with the court Counsel needs to coordinate with the court and probation and parole services in and probation and parole services in identifying and advocating for resources identifying and advocating for resources in the community.in the community.

12.12. Never bothered to check to see if my Never bothered to check to see if my client’s siblings had FAS/FASD… or if the client’s siblings had FAS/FASD… or if the mother was impaired by FASD herself.mother was impaired by FASD herself.