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REPRESENTING CLIENTS WITH FASD IN THE CRIMINAL JUSTICE SYSTEM: Changing Court Attitudes Raising FASD at all stages

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REPRESENTING CLIENTS WITH FASD IN THE CRIMINAL JUSTICE SYSTEM: Changing Court Attitudes Raising FASD at all stages WILLIAM J. EDWARDS, DEPUTY PUBLIC DEFENDER – PowerPoint PPT presentation

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Title: REPRESENTING CLIENTS WITH FASD IN THE CRIMINAL JUSTICE SYSTEM: Changing Court Attitudes Raising FASD at all stages


1
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

2
Fetal Alcohol Syndrome (FAS)
  • FAS is a neuropsychiatric developmental disorder
    that is a common public health issue according to
    the U.S. Surgeon Generals 2005 Report.
  • A set of mental, physical and neurobehavioral
    birth defects caused by exposure to alcohol
    during pregnancy.

3
Today, Ill 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. (Ill
    also tell you about mistakes Ive made)

4
FAS May Include
  • Confirmed prenatal alcohol exposure
  • Evidence of a characteristic pattern of facial
    anomalies that includes features such as an
    indistinct philtrum, thin upper lip small eyes.
  • Evidence of growth retardation in at least one of
    the following areas
  • Low Birth Weight - babies born with FAS are
    usually below the third to tenth percentile in
    their birth weight.
  • Decelerating weight over time not due to
    nutrition.
  • Failure To Thrive.
  • Disproportional low weight to height

5
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6
FAS Cont.
  • Evidence of central nervous system dysfunction.
  • In many cases the child or adult will have a
    lower IQ sometimes within the range of
    intellectual disability (mental retardation).
  • Structural brain damage.

7
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8
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).

9
  • FASD is a developmental disorder because of the
    obstructions and delays from normal growth
    patterns and resulting deficits including

10
Developmental Deficits
  1. ADHD and ADD
  2. Mental Retardation
  3. Learning Disabilities
  4. Mental Illness including Bi-polar disorder,
    Oppositional Defiant Disorder, Antisocial
    Personality Disorder, Borderline Personality
    Disorder and Depression
  5. Poor memory and recall
  6. Poor planning

11
PRIMARY DISABILITIES ASSOCIATED WITH FASD
  • General intelligence, mastery of academics and
    general level of adaptive functioning are
    measures of primary disabilities.

12
Cognitive
  • Lower IQ (may be normal or even gifted)
  • Difficulties with
  • Memory
  • Poor math skills-problems handling money
  • Self awareness, reflection
  • Abstract concepts

13
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

14
Executive Functioning
  • Difficulties with
  • Planning
  • Judgment
  • Delayed gratification
  • Impulse Control
  • Organization skills
  • Attention, focus, concentration

15
Emotional
  1. Little ability to recognize feelings
  2. Little ability to articulate feelings
  3. Mood disorders
  4. Anger/Rage disorders
  5. Vulnerability to mental illness

16
Speech/Language
  1. Parroting of others-speech patterns
  2. Delay in communication
  3. Talkativeness
  4. Confabulation

17
Interpersonal Skills
  1. Inability to read social clues
  2. Inability to empathize
  3. Excessive demand for attention
  4. Externalization of blame
  5. Arrested social development

18
Difficulties In Early Childhood
  1. Poor visual focus - severe nearsightedness
  2. Sleep feeding difficulties
  3. Seizures
  4. Poor motor coordination - appear to be clumsy
  5. Developmental Delays

19
Early Childhood Cont.
  1. Distractibility and hyperactivity- unable to pay
    attention or sit still
  2. Difficulty adapting to change
  3. Difficulty following directions
  4. 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.

20
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21
Difficulties in Mid-Childhood
  1. Difficulty understanding / predicting
    consequences
  2. Emerging discrepancy between expressive language
    and comprehension
  3. Hyperactivity - memory deficits - impulsivity
  4. Poor comprehension of social rules

22
Mid-Childhood Cont.
  1. ADHD symptoms child might get up and walk out
    of the classroom
  2. Academic failure
  3. Special Education
  4. Concrete thinking may frustrate relationships
  5. Gullibility

23
Difficulty in Adolescence
  1. Lying stealing - truancy
  2. Failing to understand consequences of actions
  3. Inappropriate sexual behavior
  4. Low self esteem
  5. Mental health issues
  6. Poor choice of companions

24
Adolescence Cont.
  1. They may reach an average academic level of
    fourth grade reading, third grade spelling and
    only second grade math
  2. Adaptive skills in the areas of living,
    communication and socialization skills are
    significantly delayed
  3. Unable to grasp such essential concepts as cause
    and effect, or the relevance of time

25
Difficulties in Adulthood
  1. Behavior problems
  2. Depression - Anxiety
  3. Alcohol/Drug Addiction
  4. Suicidal
  5. Psychotic behavior
  6. Secondary disabilities may become dominant

26
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.

27
  • 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.

28
Secondary Disabilities
  1. Mental Health Problems 90
  2. Disrupted school experience 41
  3. Trouble with the law 40
  4. Confinement (Jail, Juv. or Prison) 30
  5. Inappropriate sexual behavior 45
  6. Alcohol and Drug Problems 20
  7. Dependent Living 80
  8. Problems with Employment 79

29
DEVELOPING A SOCIAL HISTORY THROUGH INTERVIEWS
AND RECORDS
  • Problems Substantiating FAS/FASD

30
HISTORY
31
MATERNAL HISTORY
32
Mothers History
  1. 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.
  2. Some women may not realize there is no safe kind
    of alcohol, for example, thinking wine/wine
    coolers dont count.

33
Mothers History Cont.
  • 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.
  • 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.

34
Mothers History Cont.
  • Important to tell the birth mother why this
    diagnoses is important
  • Services.
  • Treatment.
  • Intervention.
  • Placement in school.
  • Prevent next generation affected.
  • Prevent subsequent FASD births (77).

35
Assessing Maternal Alcohol Use through interview
of the Mother
  1. 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.
  2. Counsel must also review all family medical
    conditions and vulnerability to cultural,
    environmental, nutritional and psychological
    issues including poverty.

36
  1. When asking about use of any substances, frame
    the question by asking How many rather than
    Did you
  2. Asking How many gives the mother permission to
    acknowledge that she did drink during pregnancy.
  3. This manner is more effective when interviewing
    others also (spouse, siblings, etc).

37
  • Assess substance use separately for the time
    periods
  • prior to pregnancy.
  • prior to pregnancy recognition.
  • 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.

38
  • Assess pattern of use.
  • 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.
  • Ask What type of alcohol beverage do you
    prefer? to better allow mother to estimate
    alcohol use.
  • Ask the size of the drinking container, keeping
    in mind that malt liquors have a higher
    concentration of alcohol.

39
  • Good positively stated question to ask
  • In the 30 days BEFORE you found out you were
    pregnant, how many drinks did you have?

40
Mothers Medical Issues
  • 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))
  • Was the mother Zinc deficient during pregnancy?

41
Medical Psychological History
  • Records to show a maternal history of alcohol use
    by the mother
  • Mothers 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)

42
Medical Psychological History cont.
  1. Prenatal care records and postnatal follow up
  2. Birth records showing any birth trauma
  3. Social service records (dependency records if the
    client and siblings were taken away from the
    mother)
  4. Death certificate of the mother

43
CLIENT HISTORY
44
Clients History
  • Previous Diagnosis May Have Been Incorrect or
    Incomplete.
  • Antisocial personality disorder.
  • ADHD/ADD - placed on Ritalin.
  • Speech and language handicaps.
  • Learning disabilities.
  • Behavioral problems, ODD, RAD, Conduct Disorder.

45
Birth Records
  • Look at the weight, height (length) and head
    circumference of the child.
  • In one case my client was born with cocaine in
    his system and a social worker was called to
    interview the mother.
  • In another case my client was hospitalized
    because he had lost so much weight at
    birth-Failure To Thrive.
  • But remember, most people with FASD do not have
    physical and or cognitive disabilities and still
    have serious brain based neurobehavioral
    disabilities.

46
Clients Educational Records
  1. All academic and attendance records
  2. Special education records including eligibility
    and placement reports (many kids qualify for more
    than one category)
  3. All IEP reports (goals and accommodations)
  4. (Investigate the parents failure to follow up
    with the IEP meetings to request the required
    services for the client)
  5. Was there any IQ testing completed.

47
Juvenile Court/Juvenile Delinquency Records
  • Get all juvenile delinquency records
  • All social services reports, psychological
    records.
  • If the client was incarcerated you will need to
    get all educational records, social histories.

48
USE OF EXPERTS
49
Experts List
  1. Social worker
  2. Neurologist
  3. Dysmorphologist and/or Geneticist
  4. Pediatric Doctor
  5. Dr. Fred Bookstein, University of Washington,
    Seattle (Formats an MRI to look at brain damage
    caused by alcohol)

50
Experts List Cont.
  • Neuropsychologist
  • Adaptive behavioral testing
  • Executive functioning testing
  • Social/Emotional testing
  • Worthwhile to repeat IQ testing, if not recent or
    from reliable source.

51
Bookstein Research
52
Corpus callosum abnormalities
Mattson, et al., 1994 Mattson Riley, 1995
Riley et al., 1995
53
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?

54
Capital Offense cont.
  1. How does the clients multiple mental health
    difficulties interact with each other to result
    in the type of behavior evidenced by the client?
  2. Does the client suffer from FAS/FASD that the
    jury might find mitigating even though FAS/FASD
    did not directly lead to the clients criminal
    behavior?

55
Capital Offense cont.
  1. Why was the client not diagnosed with FAS/FASD
    before he was charged with the crime?
  2. 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?

56
Capital Offense cont.
  • How will the clients FAS/FASD impact his ability
    to adjust to life in prison?
  • 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?

57
Ineffective Assistance Of Counsel
  1. Was there sufficient indication of FAS/FASD that
    the defense attorney should have made some sort
    of investigation?
  2. How much evidence of alcohol use by the
    defendants mother is sufficient to warrant
    continued investigation? YOU DO NOT NEED HEAVY
    DRINKING BY THE MOTHER!!

58
Ineffective Assistance Of Counsel cont.
  1. WAS the proper expert retained?
  2. Silvia v. Woodford 279 F. 3d 825 (9th Circuit
    2002).
  3. Schriro v. Landrigan  550 U.S. 465 (2007).
  4. Rompilla v. Beard 545 U.S. 374 (2005).

59
PENALTY PHASE ISSUES
60
Societal And Maternal Failures Even Before Birth
  1. Client is a victim, even before birth of
    societys failure to help his mother deal with
    her alcohol abuse.
  2. 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.

61
Societal And Maternal Failures Even Before Birth
Cont.
  • Problems with Lack of REMORSE
  • The clients failure to understand cause and
    effect and the implications of his actions should
    help the jury understand the clients inability to
    express remorse.
  • The clients 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.

62
Adjustment To Prison
  1. 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.
  2. They are in need of consistent, structured
    environments requiring few decisions. Look at
    prior incarceration records if they exist.

63
LEARNING FROM MY MISTAKES
64
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

65
  1. And didnt look at the disability as a result of
    brain damage, instead of the behavioral
    manifestation of an emotional disorder.

66
  • 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.

67
  • Even though my client with FAS/FASD had a higher
    IQ, I never had him tested by a psychologist, I
    used a psychiatrist.
  • Should have hired a neuro-psychologist or a
    psychologist to administer the VABS Vineland
    Adaptive Behavioral Scale or other
    neuropsychological testing.
  • VABS often reveals deficits in adaptive
    functioning that are more profound than deficits
    observed from IQ testing or achievement tests.
  • 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.

68
  1. I never tried to educate my DA and judge and
    assumed that they understood FAS/FASD.
  2. And assumed that my client who had FAS/FASD could
    show remorse to the Probation Officer and the
    Judge in court.

69
  1. I failed to notice when my client was telling his
    story there were blanks in his memory and he was
    a poor historian.

70
  1. Never realized my client with FASD did not like
    to be in an environment that was over-stimulating
    .needs to be in a quiet room, reduce the number
    of activities.your expert should have a quiet
    room when doing testing.

71
  • Never realized you need to talk to your client
    with FAS/FASD in concrete terms.Keep It
    Simple and Short (KISS).

72
  • Didnt 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).

73
  • 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.

74
  1. Never bothered to check to see if my clients
    siblings had FAS/FASD or if the mother was
    impaired by FASD herself.
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