Transcript REPRESENTING CLIENTS WITH FASD IN THE CRIMINAL JUSTICE SYSTEM: Changing Court Attitudes

REPRESENTING CLIENTS
WITH FASD IN THE
CRIMINAL JUSTICE SYSTEM:
Changing Court Attitudes
Raising FASD at all stages
WILLIAM J. EDWARDS, DEPUTY PUBLIC DEFENDER
OFFICE OF THE PUBLIC DEFENDER
LOS ANGELES COUNTY, CALIFORNIA
Fetal Alcohol Syndrome (FAS)
FAS is a neuropsychiatric developmental disorder
that is a common public health issue according
to the U.S. Surgeon General’s 2005 Report.
A set of mental, physical and neurobehavioral birth
defects caused by exposure to alcohol during
pregnancy.
Today, I’ll cover 4 essentials
1. What people with FAS & FASD look like at
different ages
2. How their unusual behaviors are related to brain
damage from prenatal alcohol exposure and
possibly enhanced by bad environments
3. How can you establish that the mother drank
alcohol during her pregnancy with this child
4. And which experts can make your case. (I’ll also
tell you about mistakes I’ve made)
FAS May Include:
A. Confirmed prenatal alcohol exposure
B. Evidence of a characteristic pattern of facial
anomalies that includes features such as an
indistinct philtrum, thin upper lip & small eyes.
C. Evidence of growth retardation in at least one
of the following areas:
1. Low Birth Weight - babies born with FAS are usually
below the third to tenth percentile in their birth
weight.
2. Decelerating weight over time not due to nutrition.
3. Failure To Thrive.
4. Disproportional low weight to height
FAS Cont.
D. Evidence of central nervous system
dysfunction.
1. In many cases the child or adult will have a lower
IQ sometimes within the range of intellectual
disability (mental retardation).
2. Structural brain damage.
Fetal Alcohol
Spectrum Disorders (FASD)
FASD is an umbrella term used to describe the
many different disabling effects of prenatal
alcohol exposure.
FASD includes FAS and other alcohol-related
diagnostic categories such as ALCOHOL
RELATED NEURODEVELOPMENTAL DISORDER
(ARND), formerly known as Fetal Alcohol
Effects (FAE).
FASD is a developmental disorder because of
the obstructions and delays from normal
growth patterns and resulting deficits
including:
Developmental Deficits
A.
B.
C.
D.
ADHD and ADD
Mental Retardation
Learning Disabilities
Mental Illness including Bi-polar disorder,
Oppositional Defiant Disorder, Antisocial
Personality Disorder, Borderline Personality
Disorder and Depression
E. Poor memory and recall
F. Poor planning
PRIMARY DISABILITIES
ASSOCIATED WITH FASD
General intelligence, mastery of
academics and general level of
adaptive functioning are measures of
“primary disabilities.”
Cognitive
A. Lower IQ (may be normal or even gifted)
B. Difficulties with:
1.
2.
3.
4.
Memory
Poor math skills-problems handling money
Self awareness, reflection
Abstract concepts
Medical/Neuromotor
Difficulties with:
• Balance, coordination
• Seizures
• Growth “FAILURE TO THRIVE”
• Hyperactivity (present is about 85% of the
children with FAS)
• Middle ear infections
• Eye problems, e.g. severe nearsightedness
• Orthopedic problems
• Cardiac anomalies, e.g. heart murmurs, patent
ductus arteriosus, ventricular septal defect
Executive Functioning
Difficulties with:
• Planning
• Judgment
• Delayed gratification
• Impulse Control
• Organization skills
• Attention, focus, concentration
Emotional
A.
B.
C.
D.
E.
Little ability to recognize feelings
Little ability to articulate feelings
Mood disorders
Anger/Rage disorders
Vulnerability to mental illness
Speech/Language
A.
B.
C.
D.
Parroting of others-speech patterns
Delay in communication
Talkativeness
Confabulation
Interpersonal Skills
A.
B.
C.
D.
E.
Inability to read social clues
Inability to empathize
Excessive demand for attention
Externalization of blame
Arrested social development
Difficulties In Early Childhood
A. Poor visual focus - “severe
nearsightedness”
B. Sleep & feeding difficulties
C. Seizures
D. Poor motor coordination appear to be clumsy
E. Developmental Delays
Early Childhood Cont.
F. Distractibility and hyperactivity- “unable to pay
attention or sit still”
G. Difficulty adapting to change
H. Difficulty following directions
I. Born into a dysfunctional family, the infant is
commonly abandoned in the hospital, or put
up for adoption by the mother, or removed by
Child Protective Services.
Difficulties in Mid-Childhood
A. Difficulty understanding / predicting
consequences
B. Emerging discrepancy between expressive
language and comprehension
C. Hyperactivity - memory deficits - impulsivity
D. Poor comprehension of social rules
Mid-Childhood Cont.
F. ADHD symptoms – “child might get up and
walk out of the classroom”
G. Academic failure
H. Special Education
I. Concrete thinking may frustrate relationships
J. Gullibility
Difficulty in Adolescence
A.
B.
C.
D.
E.
F.
Lying – stealing - truancy
Failing to understand consequences of actions
Inappropriate sexual behavior
Low self esteem
Mental health issues
Poor choice of companions
Adolescence Cont.
G. They may reach an average academic level of
fourth grade reading, third grade spelling and
only second grade math
H. Adaptive skills in the areas of living,
communication and socialization skills are
significantly delayed
I. Unable to grasp such essential concepts as
“cause and effect,” or the “relevance of time”
Difficulties in Adulthood
A.
B.
C.
D.
E.
F.
Behavior problems
Depression - Anxiety
Alcohol/Drug Addiction
Suicidal
Psychotic behavior
Secondary disabilities may become dominant
SECONDARY DISABILITIES
Secondary disabilities are those that the client is
not born with, and that could presumably be
ameliorated (either fully or partially) through
better understanding and appropriate
interventions.
In a 1996 study conducted by Dr. Ann Streissguth
from the University of Washington School of
Medicine, the prevalence of Secondary
Disabilities was measured in 473 people with
FAS/FASD from ages 6 to 51.
Secondary Disabilities
A.
B.
C.
D.
E.
F.
G.
H.
Mental Health Problems
Disrupted school experience
Trouble with the law
Confinement (Jail, Juv. or Prison)
Inappropriate sexual behavior
Alcohol and Drug Problems
Dependent Living
Problems with Employment
90%
41%
40%
30%
45%
20%
80%
79%
DEVELOPING A SOCIAL
HISTORY THROUGH
INTERVIEWS AND RECORDS
Problems Substantiating FAS/FASD
HISTORY
MATERNAL HISTORY
Mother’s History
A. Keep in mind that the mother may have been
involved with other toxic substances such as
glue sniffing, drugs and may not have
considered alcohol her “drug of choice.” Her
medical records may reflect drug use but not
the concomitant alcohol use which is usually
present.
B. Some women may not realize there is no safe
kind of alcohol, for example, thinking
wine/wine coolers don’t count.
Mother’s History Cont.
C. Or they may not realize there is no safe time
to drink during pregnancy, from conception
(just before they found out they were
pregnant) to birth. For example, they may say
no because they quit when they found out
they were pregnant.
1. NOTE: Alcohol exposure to the fetus during the first
trimester poses the greatest risk for physical
changes to brain, body and organ development.
i.e. birth defects. The central nervous system
(brain) is sensitive to damage throughout
pregnancy.
Mother’s History Cont.
D. Important to tell the birth mother why this
diagnoses is important:
1.
2.
3.
4.
5.
6.
Services.
Treatment.
Intervention.
Placement in school.
Prevent next generation affected.
Prevent subsequent FASD births (77%).
Assessing Maternal Alcohol Use
through interview of the Mother
A. When there are signs that the mother drank
there must be an investigation that reaches 3
generations. Counsel will have to look at the
history of drinking by the mother and the
grandmother.
B. Counsel must also review all family medical
conditions and vulnerability to cultural,
environmental, nutritional and psychological
issues including poverty.
C. When asking about use of any substances, frame
the question by asking “How many…” rather than
“Did you…”
D. Asking “How many…” gives the mother
permission to acknowledge that she did drink
during pregnancy.
E. This manner is more effective when interviewing
others also (spouse, siblings, etc).
F. Assess substance use separately for the time
periods:
1. prior to pregnancy.
2. prior to pregnancy recognition.
3. post pregnancy recognition.
Women are more likely to acknowledge alcohol use
prior to pregnancy than after pregnancy
recognition.
Drinking PATTERNS from time periods prior to
pregnancy are predictive of outcomes.
G. Assess pattern of use.
1. Ask about both typical and maximum consumption:
“Before you knew you were pregnant what was the
most number of drinks you drank on any one
occasion.
2. Ask “What type of alcohol beverage do you prefer?”
to better allow mother to estimate alcohol use.
3. Ask the size of the drinking container, keeping in
mind that malt liquors have a higher concentration
of alcohol.
Good positively stated question to ask:
In the 30 days BEFORE you found out you were
pregnant, how many drinks did you have?
Mother’s Medical Issues
A. Diabetes – associated with heightened rates of
birth defects, including central nervous
damage. Maternal diabetes can be argued to
greatly increase the risk of fetal alcohol
exposure.
(Reproductive Toxicology 24: 31-41 (2007))
B. Was the mother Zinc deficient during
pregnancy?
Medical & Psychological History
Records to show a maternal history of alcohol use
by the mother
• Mother’s hospitalizations (medical or
psychiatric)
• Mental and physical injuries (neurological and
psychological records)
• records showing alcohol and drug use (arrest
records showing DUI or public intoxication or
even domestic violence records)
Medical & Psychological
History cont.
D. Prenatal care records and postnatal follow up
E. Birth records showing any birth trauma
F. Social service records (dependency records if
the client and siblings were taken away from
the mother)
G. Death certificate of the mother
CLIENT HISTORY
Client’s History
A. Previous Diagnosis May Have Been
Incorrect or Incomplete.
1.
2.
3.
4.
5.
Antisocial personality disorder.
ADHD/ADD - placed on Ritalin.
Speech and language handicaps.
Learning disabilities.
Behavioral problems, ODD, RAD, Conduct Disorder.
Birth Records
C. Look at the weight, height (length) and head
circumference of the child.
1. In one case my client was born with cocaine in his
system and a social worker was called to interview
the mother.
2. In another case my client was hospitalized because
he had lost so much weight at birth-”Failure To
Thrive.”
3. But remember, most people with FASD do not have
physical and or cognitive disabilities and still have
serious brain based neurobehavioral disabilities.
Client’s Educational Records
A. All academic and attendance records
B. Special education records including eligibility
and placement reports (many kids qualify for
more than one category)
C. All IEP reports (goals and accommodations)
D. (Investigate the parent’s failure to follow up
with the IEP meetings to request the required
services for the client)
E. Was there any IQ testing completed.
Juvenile Court/Juvenile
Delinquency Records
D. Get all juvenile delinquency records
1. All social services reports, psychological records.
2. If the client was incarcerated you will need to get
all educational records, social histories.
USE OF EXPERTS
Experts List
A.
B.
C.
D.
E.
Social worker
Neurologist
Dysmorphologist and/or Geneticist
Pediatric Doctor
Dr. Fred Bookstein, University of Washington,
Seattle (Formats an MRI to look at brain
damage caused by alcohol)
Experts List Cont.
F. Neuropsychologist
1.
2.
3.
4.
Adaptive behavioral testing
Executive functioning testing
Social/Emotional testing
Worthwhile to repeat IQ testing, if not recent or
from reliable source.
Bookstein Research
Corpus callosum
abnormalities
Mattson, et al., 1994; Mattson & Riley, 1995; Riley et al., 1995
Capital Offense
Some examples of legal questions commonly
confronting capital lawyers:
• How does FAS/FASD explain or contribute to
the behavior of this client, especially as it
relates to the crime?
• How do we know that the client was affected
with FAS/FASD at the time of the crime?
Capital Offense cont.
C. How does the client’s multiple mental health
difficulties interact with each other to result in
the type of behavior evidenced by the client?
D. Does the client suffer from FAS/FASD that the
jury might find mitigating even though
FAS/FASD did not directly lead to the client’s
criminal behavior?
Capital Offense cont.
E. Why was the client not diagnosed with
FAS/FASD before he was charged with the
crime?
F. If the client was never successfully treated for
his FAS/FASD, does he still require, and is he
still likely to benefit from treatment? And if so
is appropriate treatment available in a prison
setting?
Capital Offense cont.
G. How will the client’s FAS/FASD impact his
ability to adjust to life in prison?
1.
2.
3.
4.
Is he at risk of being harmed by others?
At risk of harming himself ?
At risk of harming others?
Will treatment improve his ability to adjust to life in
prison?
Ineffective Assistance Of Counsel
A. Was there sufficient indication of FAS/FASD
that the defense attorney should have
made some sort of investigation?
B. How much evidence of alcohol use by the
defendant’s mother is sufficient to warrant
continued investigation? YOU DO NOT
NEED HEAVY DRINKING BY THE MOTHER!!
Ineffective Assistance Of Counsel
cont.
C. WAS the proper expert retained?
D. Silvia v. Woodford 279 F. 3d 825 (9th Circuit
2002).
E. Schriro v. Landrigan 550 U.S. 465 (2007).
F. Rompilla v. Beard 545 U.S. 374 (2005).
PENALTY PHASE
ISSUES
Societal And Maternal Failures
Even Before Birth
A. Client is a victim, even before birth of
society’s failure to help his mother deal with
her alcohol abuse.
B. After the client was born, his problems were
never accurately diagnosed or treated. He
most likely had a previous diagnosis that was
other than FAS/FASD.
Societal And Maternal Failures
Even Before Birth Cont.
C. Problems with Lack of REMORSE
1. The client’s failure to understand cause and effect
and the implications of his actions should help the
jury understand the clients inability to express
remorse.
2. The client’s desire to please may cause him to
smile at people in the courtroom and problems with
attention may cause him to appear unconcerned
with the proceedings.
Adjustment To Prison
A. Red flag for jury that requires us to explain.
THE FASD DAMAGE that our client has cannot
be fixed. It is like having an intellectual
disability.
B. They are in need of consistent, structured
environments requiring few decisions. Look at
prior incarceration records if they exist.
LEARNING FROM
MY MISTAKES
My Misperceptions and
Miscommunications
1. I thought the behavioral problems of my client,
characteristic of FAS/FASD, were the result of
poor parenting or a bad environment…
2. And didn’t look at the disability as a result of
brain damage, instead of the behavioral
manifestation of an emotional disorder.
3. I thought the client had to have a low IQ and
be diagnosed with an “intellectual disability” to
have FAS/FASD.
IQ scores alone fail to give an adequate picture of
organic brain damage and deficits in adaptive
behavior.
4. Even though my client with FAS/FASD had a
higher IQ, I never had him tested by a
psychologist, I used a psychiatrist.
A. Should have hired a neuro-psychologist or a
psychologist to administer the “ VABS Vineland
Adaptive Behavioral Scale” or other
neuropsychological testing.
B. VABS often reveals deficits in adaptive functioning
that are more profound than deficits observed from
IQ testing or achievement tests.
C. Did not know that VABS testing revealed that my
client: failed to consider consequences of his
actions, was unresponsive to social clues, and often
lacked reciprocal friendships.
5. I never tried to educate my DA and judge and
assumed that they understood FAS/FASD.
6. And assumed that my client who had
FAS/FASD could show remorse to the
Probation Officer and the Judge in court.
7. I failed to notice when my client was telling his
story there were blanks in his memory and he
was a poor historian.
8. Never realized my client with FASD did not like
to be in an environment that was overstimulating …….needs to be in a quiet room,
reduce the number of activities…….your expert
should have a quiet room when doing testing.
9. Never realized you need to talk to your client
with FAS/FASD in concrete
terms…………….Keep It Simple and Short
(KISS).
10. Didn’t know changes in routine schedule and
planning have the potential to create confusion
and dispair for my client (always go see the
client the same time each week while in
custody).
11. Never realized that after having my client
diagnosed with FAS/FASD he would not
automatically receive services in the
community and in prison.
Counsel needs to coordinate with the court and
probation and parole services in identifying
and advocating for resources in the
community.
12. Never bothered to check to see if my client’s
siblings had FAS/FASD… or if the mother was
impaired by FASD herself.