EDUCATING THE LEGAL SYSTEM ABOUT FASD: It ’ s NOT Just an Excuse!

1. EDUCATING THE LEGAL SYSTEM ABOUT FASD:It’s NOT Just an Excuse! William J. Edwards, Deputy Public Defender Office Of The Public Defender Los Angeles County, California For training purposes only. Not for distribution without the express permission of author. 09/2015

2. Competency • Adjudicative Competence • Understanding the legal system and those involved • Understanding of individual charges and allegations • Decisional Competence • Ability to weigh and manipulate information • Ability to work with one's attorney and make rational decisions about one's case • Emotional and behavioral impairments (especially juveniles) For training purposes only. Not for distribution without the express permission of author. 09/2015

3. Competency, cont. • Cognitive impairment-Deficits in executive functioning have a pervasive impact on how the client with F ASD copes with the entire legal process. • Executive functioning includes areas of strategic planning, memory, sensory processing, working memory, abstract and conceptual thinking (foresee consequences of taking a plea or testifying). For training purposes only. Not for distribution without the express permission of author. 09/2015

4. Competency cont. • Deficits in working memory (ability to hold information in mind while doing complex cognitive tasks such as reasoning, understanding and learning new information). When working memory is impaired in clients with F ASD their short-term immediate verbal memory can be very well developed which may lead to misperceptions of the court that there are no memory impairments. For training purposes only. Not for distribution without the express permission of author. 09/2015

5. Competency cont. • Don't be fooled by the IQ! Even those with normal or above normal IQ can have significant neurobehavioral disabilities. They may be very verbal without comprehending. • Look at Confabulation, the life long inability to listen to a story for more than 10 minutes, or relate an experience in detail and a rational sequence. These render the information the client gives his defense team unreliable. For training purposes only. Not for distribution without the express permission of author. 09/2015

6. Competency cont. • They have difficulty with abstract language and concepts. Don’t understand figures of speech, jokes, sarcasm, teasing. • Unable to follow directions. Inability to see the need to follow rules and may not think rationally about their options. • Does your client understand court room procedures? For training purposes only. Not for distribution without the express permission of author. 09/2015

7. Competency cont. • Court should not accept expert's testimony from an evaluator who merely tells the court the person has FASD but is not "psychotic" and is competent. • Look at Dr. Thomas Grisso's materials on competency. • "CAST-MR" test if the client has an IQ below 70. • Don't ask the client "DO you understand" ASK them "WHAT does that mean?" For training purposes only. Not for distribution without the express permission of author. 09/2015

8. Confessions, Suggestibility, Gullibility and FASD • The multiple neurocognitive deficits in F ASD result in behaviors that appear relevant to the way this population copes with MIRANDA. The cognitive vulnerabilities in this group often lead to quick and impulsive rights waivers, followed by self incriminating statements. Behaviors like: For training purposes only. Not for distribution without the express permission of author. 09/2015

9. Confessions, Suggestibility, Gullibility and FASD cont. • Too easily lead • Impulsivity • Unaware of the consequences of their behavior • Does not foresee potential dangers • Poor attention span • Poor judgment in whom they trust • Over-friendly with strangers • Enjoys talking but the act of talking is more important than the content • Likes to talk about unrealistic subjects • Tries hard and wants to please authoritative figures For training purposes only. Not for distribution without the express permission of author. 09/2015

10. Confessions, Suggestibility, Gullibility and FASD cont. • Cognitive deficits or significant developmental delays in F ASD manifest in learning disabilities, memory problems, and significant discrepancies between verbal and non-verbal skills lead to slower rates of processing relative complex information. This difficulty is relevant to the decisional demands required in competent MIRANDA waivers. For training purposes only. Not for distribution without the express permission of author. 09/2015

11. Confessions, Suggestibility, Gullibility and FASD cont. • IQ alone may not be a good gauge for estimating the degree of suggestibility. • Attention deficits are common. This deficit could lead to perseveration or "getting stuck" in behavioral sequences. Perseveration could lead to a pattern of acquiescing, gullibility or responding "YES" to questions during interrogation. For training purposes only. Not for distribution without the express permission of author. 09/2015

12. Confessions, Suggestibility, Gullibility and FASD cont. • Basic language skills are often a relative strength in F ASD. Persons with F ASD are described as superficially chatty. During police interrogation the superficially chatty presentation can often mask underlying receptive and language deficits. For training purposes only. Not for distribution without the express permission of author. 09/2015

13. Confessions, Suggestibility, Gullibility and FASD cont. • F ASD clients might impulsively agree to speak to the police simply because they recognize the Miranda Rights warnings from previous arrests even if the rights were not understood. • Memory deficits could increase uncertainty regarding recollections of past events and lead to confabulation to fill in missing elements. For training purposes only. Not for distribution without the express permission of author. 09/2015

14. Confessions, Suggestibility, Gullibility and FASD cont. • Executive function deficits might increase the client's unwarranted expectations that he or she should know the answers to questions leading to responses that are inaccurate but sound right. • Finally social and executive function deficits might preclude the client from recognizing when they should stop talking. For training purposes only. Not for distribution without the express permission of author. 09/2015

15. Consent/Waivers • Search. • False Confession. • Review the statements - look at the IQ level and reading and comprehension level. • Were the statements recorded or written by your client? Were the statements in your clients own handwriting? • Could have been a signed statement the client could not read. • SUBPOENA officers training materials. • Go out to the station and video tape the room where the client was interrogated. For training purposes only. Not for distribution without the express permission of author. 09/2015

16. Consent/Waivers Cont. • Voluntariness - failure to comprehend the situation he was in when questioned by the police. • Desire to please authoritative figures. • They often take blame too quickly. • The client may readily agree to a version of facts/events which paint them as being in charge and “bad” rather than “stupid.” For training purposes only. Not for distribution without the express permission of author. 09/2015

17. C.Voluntarinesscont. • Most clients with FAS/FASD will be particularly vulnerable to adopting “helpful” suggestions by police officers to explain the motives and actions. • may tell conflicting stories that are viewed as a lie. • they may guess what the officer wants to hear and say anything. For training purposes only. Not for distribution without the express permission of author. 09/2015

18. Sentencing • Clients with FAS/FASD may be less culpable. They may not understand the consequences of their behavior and their actions are often the result of impulsive behavior. • Juveniles are extremely vulnerable to peer pressure and often are good candidates for gang related crimes. • "I did the job nobody else wanted to do." • Scapegoats. For training purposes only. Not for distribution without the express permission of author. 09/2015

19. Sentencing Cont. • The existence of FAS/FASD may be important in determining what role a defendant played in an offense. • The existence of FAS/FASD may be critical in designing or structuring a sentence that will reduce the risk of recidivism. For training purposes only. Not for distribution without the express permission of author. 09/2015

20. Sentencing Cont. • We must educate the jury, judge and the prosecutor. If there is going to be a probation officer we must also educate him or her about the struggles the client will face with time, memory, communication, planning and money. • Make sure Probation and Parole also understand FASD. • Performance issues while on probation and not overreact to minor probation violations. For training purposes only. Not for distribution without the express permission of author. 09/2015

21. 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? For training purposes only. Not for distribution without the express permission of author. 09/2015

22. Capital Offense cont. • How does the client’s multiple mental health difficulties interact with each other to result in the type of behavior evidenced by the client? • 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? For training purposes only. Not for distribution without the express permission of author. 09/2015

23. Capital Offense cont. • Why was the client not diagnosed with FAS/FASD before he was charged with the crime? • 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? For training purposes only. Not for distribution without the express permission of author. 09/2015

24. Capital Offense cont. • How will the client’s 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? For training purposes only. Not for distribution without the express permission of author. 09/2015

25. Ineffective Assistance Of Counsel • Was there sufficient indication of FAS/FASD that the defense attorney should have made some sort of investigation? • 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!! For training purposes only. Not for distribution without the express permission of author. 09/2015

26. Ineffective Assistance Of Counsel cont. • WAS the proper expert retained? • Silvia v. Woodford 279 F. 3d 825 (9th Circuit 2002). • Schriro v. Landrigan  550 U.S. 465 (2007). • Rompilla v. Beard 545 U.S. 374 (2005). For training purposes only. Not for distribution without the express permission of author. 09/2015

27. PENALTYPHASEISSUES For training purposes only. Not for distribution without the express permission of author. 09/2015

28. Societal And Maternal FailuresEven Before Birth • Client is a victim, even before birth of society’s failure to help his mother deal with her alcohol abuse. • 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. For training purposes only. Not for distribution without the express permission of author. 09/2015

29. Societal And Maternal FailuresEven Before Birth Cont. • Problems with Lack of REMORSE • 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. • 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. For training purposes only. Not for distribution without the express permission of author. 09/2015

30. Adjustment To Prison • 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. • They are in need of consistent, structured environments requiring few decisions. Look at prior incarceration records if they exist. For training purposes only. Not for distribution without the express permission of author. 09/2015

31. LEARNING FROMMY MISTAKES For training purposes only. Not for distribution without the express permission of author. 09/2015

32. My Misperceptions and Miscommunications • I thought the behavioral problems of my client, characteristic of FAS/FASD, were the result of poor parenting or a bad environment… • And didn’t look at the disability as a result of brain damage, instead of the behavioral manifestation of an emotional disorder. For training purposes only. Not for distribution without the express permission of author. 09/2015

33. 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. For training purposes only. Not for distribution without the express permission of author. 09/2015

34. 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. For training purposes only. Not for distribution without the express permission of author. 09/2015

35. I never tried to educate my DA and judge and assumed that they understood FAS/FASD. • And assumed that my client who had FAS/FASD could show remorse to the Probation Officer and the Judge in court. • I failed to notice when my client was telling his story there were blanks in his memory and he was a poor historian. For training purposes only. Not for distribution without the express permission of author. 09/2015

36. 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. • Never realized you need to talk to your client with FAS/FASD in concrete terms…………….Keep It Simple and Short (KISS). • Didn’t know changes in routine schedule and planning have the potential to create confusion and despair for my client (always go see the client the same time each week while in custody). For training purposes only. Not for distribution without the express permission of author. 09/2015

37. 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. • Never bothered to check to see if my client’s siblings had FAS/FASD… or if the mother was impaired by FASD herself. For training purposes only. Not for distribution without the express permission of author. 09/2015

38. EDUCATINGTHE SYSTEMS For training purposes only. Not for distribution without the express permission of author. 01/2017

39. The Judge For training purposes only. Not for distribution without the express permission of author. 01/2017

40. ABA’s Resolution • In 2012 the American Bar Association passed a Resolution on FASD urging all Judges and attorneys working in children’s courts and juvenile justice courts to identify and respond to children with FASD. • The ABA encouraged training to enhance awareness of FASD and its impact in the child welfare and the juvenile justice systems. For training purposes only. Not for distribution without the express permission of author. 01/2017

41. Judge’s Resolve • As a Judge you can take action to change the life of the birth mother and the child prenatally exposed. • All Judges must first raise the question of whether or not the child may have FASD. We should not assume that the issue has been addressed in the past! Remember, alcohol is commonly used with other drugs. For training purposes only. Not for distribution without the express permission of author. 01/2017

42. Judge’s Resolve cont. • All Judges should learn the neurodevelopmental, neurocognitive and neurobehavioral traits that indicate the child may have been prenatally exposed to alcohol during pregnancy. • You can make a difference by identifying resources in the community and asking for screenings and assessments. • Keep in mind there is a strong likelihood that the birth mother herself may have FASD. For training purposes only. Not for distribution without the express permission of author. 01/2017

43. Results An early diagnosis of children with FASD can • Possibly prevent the need for removal. • Help establish appropriate placements and services from the state department of developmental disabilities. • Entitlement to special education services. • Help the birth parents or foster/adoptive parents understand and meet the needs of the child. • Reduce the likelihood of failed placements. For training purposes only. Not for distribution without the express permission of author. 01/2017

44. The Judge’s Questions • Is there a history of alcohol or other substance abuse in the family? History of PAE? • If the birth mother denies alcohol use during pregnancy, remember denial is a hallmark characteristic of substance abuse.  A better way of gathering this important information is to ask what her habits were regarding alcohol beforeshe knew she was pregnant. • What is the child’s educational history? (special education, school disruptions, unexcused absences, suspensions) • History of mental illness, ADHD, developmental disability. • History of multiple placements, abuse, neglect? • Siblings in foster care, siblings with PAE? For training purposes only. Not for distribution without the express permission of author. 01/2017

45. The Judge’s Actions: Diagnosis • Require child welfare agencies to provide birth records and other records that may indicate prenatal alcohol exposure. • Review all social services and psychological, psychiatric and medical diagnostic reports to determine if there is any evidence of prenatal alcohol exposure. • If there is any evidence that the birth mother used drugs and/or alcohol, the Judge should request an evaluation by a competent expert trained in FASD. For training purposes only. Not for distribution without the express permission of author. 01/2017

46. The Judge’s Actions:Diagnosis cont. • Alert those involved in the advocacy of the child’s welfare (e.g. parents, foster parents, social services, CASA, guardian ad litem, educators, child’s attorney) that the child may have prenatal exposure and they should consider diagnosis and services including treatment. • If a diagnosis of FASD exists make sure that all future reports ordered by the court reflect the diagnosis and the Judge must order early intervention, treatment, special education services and supportive services. For training purposes only. Not for distribution without the express permission of author. 01/2017

47. The Judge’s Actions: Intervention • Document testing, therapy, educational supports and medical treatment in the record. • Assure the educational component is complete. • Is the child receiving appropriate special education services? • Make sure the IEP mentions FASD. • Are the teachers trained? • A child in juvenile hall must have all teachers, social workers, psychologist and other professionals aware of the child’s FASD diagnosis. • Does the child need to be placed under conservatorship? For training purposes only. Not for distribution without the express permission of author. 01/2017

48. The Judge’s Actions: Intervention cont. • Make an inquire to make sure the child is getting all the proper services that they are entitled to by the state and federal government. • Judges can hold agencies, foster parents, service providers, educators, attorneys and advocates accountable for ensuring services and treatment are provided in a timely manner. For training purposes only. Not for distribution without the express permission of author. 01/2017

49. The Judge’s Actions: Intervention • KEEP IN MIND THAT CHILDREN WITH FASD carry a very high burden of care. The structure and care they must have require a very high degree of positive parenting. • Children with FASD are also a greater risk for suicide. For training purposes only. Not for distribution without the express permission of author. 01/2017

50. Remember • Multiple generations in a family can and often do have FASD. • This chain of damaged  lives is broken when the next generation is born free from PAE. Remember a vast majority of children who are never diagnosed and never treated repeat the cycle of substance abuse giving birth to next generation of children adversely affected by maternal alcohol use. • Proper placements include stable, nurturing and supportive environments for the child. For training purposes only. Not for distribution without the express permission of author. 01/2017