Name of Expert: Natalie Novick Brown, Ph.D., SOTP
Area of Expertise: Psychiatry & Psychology >> Psychology
Area of Expertise: Psychiatry & Psychology >> Forensics
Area of Expertise: Psychiatry & Psychology >> Psychiatry
Representing: Defendant
Jurisdiction: S.D.Tex.
I, NATALIE NOVICK BROWN, PhD, hereby declare, under oath, as follows:
1. I am over the age of eighteen and mentally competent, and I make this declaration based on my own personal knowledge. 2. Defense counsel requested that I submit this declaration.
3. I am a psychologist and Program Director of FASDExperts, a multidisciplinary assessment group that conducts forensic evaluations consistent with well-20 accepted, published diagnostic guidelines in cases of suspected Fetal Alcohol Spectrum Disorders (FASD).
4. Our multidisciplinary assessment group consists of three specialists as recommended under federal guidelines for clinically consistent FASD diagnosis: Paul Connor, PhD (neuropsychologist), Richard Adler, MD (psychiatrist), and Natalie Novick Brown, PhD (psychologist and functional specialist in FASD).
5. Each member of our multidisciplinary team holds a faculty appointment at the University of Washington School of Medicine in the Department of Psychiatry and Behavioral Sciences. Resumes are available at our website: www.FASDExperts.com. All three members of our team have training and experience relevant to our individual specialties in FASD.
a. Dr. Connor is a neuropsychologist and licensed Psychologist in the State of Washington. He completed his doctoral degree in psychology and neuropsychology at Brigham Young University and a post-doctoral fellowship in the Fetal Alcohol and Drug Unit at the University of Washington. He subsequently was a faculty member of the Fetal Alcohol and Drug Unit for nearly 13 years, conducting research on the neuropsychological, neuroimaging, and mental health impairments associated with FASD. Currently, he is in private practice, specializing in clinical and forensic assessment of FASD. He is the Neuropsychological Director of FASDExperts.
b. Dr. Adler is a medical doctor and licensed Psychiatrist in the State of Washington. He obtained two postdoctoral degrees in Psychiatry from Harvard University and completed a Fellowship in Forensic Psychiatry at the University of Washington School of Medicine. He is Board certified in Child and Adolescent Psychiatry and Board certified in Adult Psychiatry. He maintains an active clinical practice in child, adolescent and adult psychiatry. He is the Medical Director of FASDExperts.
c. Dr. Brown obtained her undergraduate degree from UCLA and her doctoral degree in clinical psychology from the University of Washington, where she also completed a post-doctoral fellowship in the Fetal Alcohol and Drug Unit. She is licensed as a Psychologist in Washington and Florida and also is certified to conduct assessments by the Division of Developmental Disabilities, Department of Corrections, and Department of Social and Health Services in Washington State. Since 1995, Dr. Brown has specialized in forensic evaluation of FASD and in community-based treatment of individuals with FASD (particularly those with sex offenses and other felony convictions).
6. FASDExperts has provided reports, depositions, and/or testimony regarding FASD in over 50 forensic cases, including State of Washington v. Johnson, State of South Carolina v. Binney, State of California v. Hamilton, State of Washington v. Benedict, State of Washington v. John Doe (Juvenile Matter), Ernest Johnson v. State of Missouri, Texas v. Joseph T. Estrada, Jr., Nevada v. Eugene Nunnery. We have worked as a forensic assessment team in multiple forensic contexts including pre-trial, post conviction, and civil/administrative matters as well.
7. We have participated as invited speakers in many trainings and workshops for legal and mental health professionals, government officials, and the lay public. We also have provided national and international training regarding our assessment protocol to medical and mental health groups.
8. Our group presented its Model Standard for forensic evaluation of FASD at the FAS International Conference in Victoria, B.C. on March 11, 2009.
9. FASDExperts was contacted by Defense co-counsel on January 6, 2011, who provided us with preliminary information and materials relevant to this matter. I reviewed those materials on January 7, 2011.
10. Based upon my review of several case documents, I have concluded that there is basis for further evaluation to determine definitively whether FASD is present. The basis for this opinion is the following:
a. A sworn affidavit from birth mother Joe Mae Brown and statement describing her interview by Mitigation Specialist Lisa Milstein confirm prenatal alcohol exposure (i.e., according to the Centers for Disease Control 1, self-reported drinking by a birth mother constitutes definitive evidence of prenatal exposure). The fact that family members corroborated the birth mother's report in their interviews with Lisa Milstein provides convergent evidence of its reliability. Specifically, the birth mother reported that she consumed a pint of “boot leg” alcohol on Friday, Saturday, and Sunday of each week during the 4 index pregnancy. Regular alcohol consumption in this amount well exceeds levels known to cause brain damage in FASD. A pint of liquor contains 16 shots of alcohol (i.e., 16 drinks of 1.25 ounces each). According to Sterling 7 Clarren 2 , risk for “severe” FASD increases substantially when pregnant women reach a blood alcohol level or BAC in the 125-150 mg/dL range and attain such levels at least weekly. (A range of 125-150 mg/dL is equivalent to a BAC of 0.125-0.150 percent.) The exact amount of drinking it takes for an individual woman to reach a BAC of 0.125 to 0.150 percent is complex and based on many factors (e.g., her size, her ponderal index, the rapidity of her drinking, whether alcohol is consumed alone or with food and what types of Bertrand, J., Floyd, R. L., Weber, M. K., O'Connor, M. J., Riley, E. P., Johnson, K. A., ... National Task Force on FAS/FAE. (2004). Food, and other factors). In general, an average-sized woman (i.e., 120-150 pounds) reaches a BAC of 0.10 after 3 drinks and a BAC of 0.15 after 4-5 drinks. (The latter is considered “binge” drinking and is associated with the most severe deficits in FASD.) In summary, the birth mother's report that she consumed the equivalent of 10 shots of alcohol at least three nights per week throughout the pregnancy indicates a massive amount of binge drinking throughout pregnancy that is almost certainly going to produce FASD.
b. School records established that Arthur Brown had a childhood history consistent with FASD (e.g., designated as “Learning Disabled” in third grade and subsequently placed in Special Education, standardized testing throughout school indicating significant learning deficits in basic academic subjects, severe auditory comprehension/receptive language deficits). Such developmental problems are found in almost all children with FASD.
c. School psychology reports reflected IQ scores from the mild mental retardation range (i.e., full scale IQ of 70 at age 8) to the low average range (i.e., full scale IQ of 87 at age 15), with a significant “split” between Verbal (VIQ=81) and Nonverbal (PIQ=96) performance in the latter test. Variable performance on standardized tests as well as a significant verbal/nonverbal IQ difference are consistent with the uneven, diffuse, “patchy” brain damage in FASD. 3
11. In summary, there is abundant preliminary information to support a conclusion that an FASD diagnosis is LIKELY and that a multidisciplinary diagnostic assessment to address this issue should be undertaken. As forensic FASD assessment relies on complete information about a respondent's life history and instant offense conduct, thorough mitigation investigation is essential to our work.
12. It is well-accepted that FASD is under-diagnosed. In seminal research by Streissguth and colleagues 4, it was found that a significant risk factor for negative life course consequences in FASD was the failure to have the condition diagnosed before age six so that case management and appropriate treatments could be administered throughout childhood. FASD is often referred to in the literature as a “hidden disability” because of a common but inaccurate lay perception that if IQ is unimpaired, there are no cognitive deficits of note. Consequently, an ironic and lamentable consequence of mitigation efforts in Capital Murder cases is that in many instances, it is only in the context of such a serious penalty that an appropriately-thorough analysis undertaken. That analysis begins with thorough mitigation investigation by defense counsel and culminates with equally thorough assessment conducted by FASDExperts, which relies on the mitigation investigation.
13. Based on the limited document review I have conducted, it is likely that Arthur Brown's lifelong history, including his offense conduct, will reveal the very kind of neurocognitive impairments that are associated with FASD - impairments that produce a cognitive disorder (i.e., mental defect) and affect self-regulation across the lifespan, particularly in unstructured and high stress situations. During trial and sentencing in 1993, appeal in 1996, and habeas appeal in 2008, the Court did not have the benefit of hearing any testimony about the impact of FASD on Mr. Brown's life history or, more specifically, on his instant offense behavior. At the time of his trial, sentencing, and appeal in the early 1990s, FASD was definitely not a new or novel concept to medicine or psychology and had been recognized for many years as a major known cause of developmental disabilities, with the lifelong implications of these disabilities known for several years. By the time of his habeas appeal in 2008, it was well recognized that FASD caused “secondary disabilities,” most relevant of which is “Trouble with the Law.” However, when Mr. Brown was born in 1970, no one knew about the damage and long-term effects that prenatal alcohol exposure could cause. For example, in 1989, long after his mother was pregnant, Congress passed legislation to mandate labels on all alcohol beverage containers sold in the United States that warned against drinking alcohol during pregnancy. This event, which occurred during the pre-trial investigation stage in Mr. Brown's case, evoked widespread television and newspaper publicity across the nation. Consequently, by the time of his trial and sentencing in 1993 and initial appeal in 1996, knowledge about FASD was widespread in the lay population as well as the scientific community. At any point in the legal process, including at Mr. Brown's federal habeas appeal in 2008, any expert with knowledge about FASD could have testified not only about the diagnosis if it had been obtained but also about the long- term behavioral ramifications of the condition on his ability to self-regulate in general and on his offense conduct in particular.
14. An FASD diagnosis, if found, involves significant, permanent brain damage that affects executive functioning and adaptive behavior (e.g., judgment, decision making, impulse control). Therefore, an FASD diagnosis, if found, would be highly relevant to the legal outcome in Mr. Brown's case. According to counsel's review of the State Habeas Court's findings of fact, the Court found that “counsel did not call the applicant's special education teacher as a matter of trial strategy, because there was no information indicating that the applicant's IQ affected his ability to determine right from wrong.” (Finding No. 52). Evidence of FASD has mitigating potential beyond a person's ability to determine right from wrong. In particular, FASD substantially impairs an individual's ability to deliberate and reflect as well as self-regulate. In the last 15 years, awareness that FASD involves birth defects caused by maternal alcohol use has led to increasing awareness in the legal profession that a different level of attribution is warranted for individuals with fetal alcohol impairment. Rather than assuming that these individuals become unmotivated, manipulative, antisocial, and/or self-defeating solely because of poor parenting experiences and free will, research over the last two decades has shown consistently that untreated neurocognitive disabilities are the basis for maladaptive behaviors. Notwithstanding the fact that environmental influences can and do play a significant role in the expression of secondary disabilities seen in FASD such as Trouble with the Law, it also has been established in the scientific research over the past 20 years that individuals with FASD have structural brain damage that makes it highly unlikely they will be able to withstand the negative influence of environmental risk factors without appropriate diagnosis and treatment. The relevance of FASD in the judicial process is well known:
a. While many persons with FASD do not have IQs in the intellectual disability range, they function adaptively as if they are intellectually disabled due to their executive function deficits: “The use of IQ scores (is) an attempt to create an illusion of scientific certainty in identifying a disorder whose causes and manifestation are often hidden and subtle....The problem is that when the artificial number fails to fit with the disability as it is experienced and documented by others, which criterion should be used? Typically, clinicians and government entities find it easier to go ‘by the book,’ but there are times when that results in a wrong and, possibly, unjust decision.” 5
b. Due to their mental defect, persons with FASD tend to be highly suggestible and prone to waiving their rights: “When giving statements, they may not understand concepts such as waiving rights to counsel, lawyer-client privilege, and the implications of their plea. They are vulnerable to making false confessions.” 6
c. Due to their mental defect and suggestibility, persons with FASD tend to be poor historians: The tendency for individuals with FASD to lie and confabulate similar to others with developmental deficits 7 is likely not intentional but rather a result of cognitive deficits such as difficulty with the interpretation and understanding of information. 8
d. Due to their mental defect, persons with FASD often lack the biological capacity to premeditate, reflect, appreciate the wrongfulness of their actions, and control their aggressive impulses: “FASD may negate the ‘guilty mind’ requirement essential to establishing legal culpability....How can a defendant form the requisite intent for the criminal offense if he or she does not appreciate the wrongfulness of the act due to learning and memory difficulties? Or, where an act requires a specific intent... does an individual with FAS have that kind of forward thinking and planning ability?” 9
e. The United States government has recognized that FASD is directly relevant in the legal context: “Individuals with FASD typically are impulsive and have trouble foreseeing the consequences of their actions.... (This) presents challenges throughout the judicial process - from questioning through arrest, hearings, sentencing, and detention.” 1
f. Courts have recognized that FASD is relevant throughout the judicial process: “Evidence concerning certain alcohol-related conditions has long been admissible during the guilt phase of criminal proceedings to show lack of specific intent .... (I)f evidence of a self-induced condition such as voluntary intoxication is admissible, then so too should be evidence of other commonly understood conditions that are beyond one's control, such as epilepsy... Just as the harmful effect 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. As with ‘epilepsy, infancy or senility'...we can envision few things more certainly beyond one's control than the drinking habits of a parent prior to one's birth.” 11
15. FASDExperts has been asked to provide a cost estimate for multidisciplinary assessment of Arthur Brown to determine if he meets criteria for an FASD. In the interests of cost-effectiveness, our evaluative model reflects a step-wise approach:
a. Step 1: Dr. Connor, our team's Neuropsychological Director, reviews the defendant's prior psychological testing and advises regarding the need for further testing and the nature of same. Dr. Connor administers a battery of tests to the defendant in order to determine if there are neuropsychological deficits consistent with FASD. He prepares a graphic representation of the test results for use as an exhibit in court. If the results of neuropsychological testing show deficits in a pattern consistent with FASD, counsel are advised that it is appropriate to pursue additional FASD evaluation, as below.
b. Step 2: After reviewing results of neuropsychological testing, Dr. Adler undertakes the second (and diagnostic) step in the evaluation, which may be conducted in tandem with Dr. Brown (especially when time is of the essence). Dr. Adler reviews records, conducts a complete medical examination, takes digital facial photographs to analyze for FASD abnormalities, and conducts a psychiatric interview to address whether an FASD medical diagnosis is warranted. In addition, it is not unusual that the medical evaluation of FASD will require neuroanatomical testing such as Magnetic Resonance Imaging (MRI) and specialized analysis of the MRI via one or more of the following: (1) Diffusion Tensor Imaging, (2) Morphometric (Shape) Analysis, and/or (3) Volumetric measurements. In addition, Dr. Adler reviews the MRI images with his own Neuroradiology consultant at the University of Washington and does not rely on what is often a rudimentary reading of the study by a local (clinical and non-specialized) radiologist.
c. Step 3: If the defendant is diagnosed with an FASD, Dr. Brown reviews case records, examines and administers forensic psychological tests to the defendant, and conducts lifelong functional assessment for the purpose of determining whether there is adequate evidence of persistent deficits in functioning across the defendant's lifespan, which would be consistent with FASD. If counsel requests, she also analyzes the defendant's criminal history, including instant offense, to determine if the behavior depicted in that history is consistent with FASD (i.e., a “nexus” analysis).
16. An estimate of fees associated with our work is the following:
a. Dr. Connor bills at an hourly rate of $250. Neuropsychological testing involves 24 hours of time ($6000), which includes document review, face-to-16 face testing, consultation with FASDExperts colleagues, travel time, and report.
b. Dr. Adler bills at an hourly rate of $350. His medical assessment involves 30 hours ($10,500), which includes record review, consultation with FASDExperts colleagues, face-to-face medical examination, analysis of the FAS Facial Photographic data, coordination of neuroradiological testing, travel time, and report. The cost for neuroradiological testing (paid directly to the facility and/or vendor experts) is typically in the range of $2,500.
c. Dr. Brown bills at an hourly rate of $250. Her lifelong/nexus assessment involves 42 hours ($10,500), which includes document review, consultation with FASDExperts colleagues, face-to-face interview/testing, travel time, and report. In post- conviction cases involving an extensive record, Dr. Brown's fee estimate may increase by an additional 8 hours for review of trial testimony.
d. Travel time for each expert (during which case work is conducted while enroute) is estimated at 4 hours each way, which is subject to change based on the location of the case. Travel expenses (e.g., airline/grand transportation, hotel) are billed separately from the aforementioned fee estimates.
I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct.
Footnotes
1 Fetal alcohol syndrome: Guidelines for referral and diagnosis. Atlanta, GA: Centers for Disease Control and Prevention.
2 Clarren, S. (2003). Fetal alcohol syndrome. In M. Wolraich (Ed.), Disorders of development and learning, Vol. 1. Hamilton, Ontario: B.C. Decker.
3 O'Malley, K. (2007). ADHD and fetal alcohol spectrum disorders (FASD). New York: Nova Science Pub.
4 “Understanding the occurrence of secondary disabilities in clients with fetal alcohol syndrome (FAS) and fetal alcohol effects (FAE): Final Report to the Centers for Disease Control on Grant No. RO4/CCR008515 (Tech. Report No. 96-16).” Seattle: University of Washington, Fetal Alcohol and Drug Unit, 1996.
5 Hearn v. Quarterman, #3:04-CV-0450-D, U.S. District Court, Northern District of Texas, Dallas Division
6 Fast, D. K., Conry, J., & Loock, C. (1999). Identifying fetal alcohol syndrome among youth in the criminal justice system. Journal of Developmental and Behavioral Pediatrics, 20(5), 370-372.
7 Nash, K., Rovet, J., Greenbaum, R., Fantus, E., Nulman, I., & Koren, G. (2006). Identifying the behavioral phenotype in Fetal Alcohol Spectrum Disorder: sensitivity, specificity and screening potential. Archives of Women's Mental Health, 9, 181-186.
8 Streissguth, A., & Kanter, J. (1997). The challenge offetal alcohol syndrome: Overcoming secondary disabilities. Seattle, WA: University of Washington Press.
9 Dagher-Margosian, J. (1997). Representing the FAS client in a criminal case. In Streissguth, A.P. & Kanter, J. (Eds.). The challenge of fetal alcohol syndrome: Overcoming secondary disabilities (pp. 125-133). Seattle: University of Washington Press.
10 www.samhsa.gov
11 Dillbeck v. State, 643 So. 2 nd 1027 (Fla.)