Fetal Alcohol Evidence as Mitigating Factor in Death Penalty: SCOTUS Ruling in Trevino

 This week, the Supreme Court of the United States issued its ruling on the request from Texas Death Row Inmate Carlos Trevino, who asked SCOTUS to review what happened in his criminal trial’s sentencing (penalty) phase and the introduction of mitigating evidence against the death penalty.

SCOTUS declined the request, and will not hear the case.  Justice Sonia Sotomayor dissented, arguing that the High Court should hear Trevino’s arguments. She is joined by Justice Ruth Bader Ginsburg.

Read Justice Sotomayor’s 13-page dissent here. 

Constitutional Argument:  Ineffective Assistance of Counsel

His argument was based within the constitutional framework of his right to effective assistance of counsel.  By failing to investigate and present evidence at trial of Mr. Trevino’s intellectual disabilities arising out of fetal alcohol syndrome or fetal alcohol spectrum disorder (FASD), he argued that his constitutional rights had been violated.

The only witness presented at the penalty phase of the trial was Carlo’s aunt, who testified Carlos dropped out of high school and that his mother was an alcoholic. 

Fetal Alcohol Spectrum Disorder (FASD)

Trevino’s mother drank extensively during her pregnancy.  As a result, Carlos Trevino was born with fetal alcohol spectrum disorder and its accompanying permanent brain damage. 

There is no controversy that Carlos Trevino suffers from FASD at this point. 

Returned For Mitigating Evidence

The case had been before SCOTUS once before.  In 2013, SCOTUS reversed the Fifth Circuit’s decision not to hear Mr. Trevino’s ineffectiveness of counsel argument.  The case was returned to the appeals court for further consideration. See, Trevino v. Thaler, 133 S. Ct. 1911, 569 U.S. 413, 185 L. Ed. 2d 1044 (2013).

Additional mitigating evidence was provided to the lower federal court.

This included specifics regarding how much his mother drank during the pregnancy (19-24 cans of beer on a daily basis), and that Carlos Trevino was incontinent and wearing diapers until he was 8 years old.  A clinical psychologist testified that Mr. Trevino’s history of FASD “would have impacted any of [his] decisions to participate in or refrain from any activities that resulted in his capital murder charges.”  Dissent, page 5. 

Still, the Fifth Circuit failed to find merit in the mitigation evidence.  This week, SCOTUS declined Mr. Trevino’s petition to review that decision.

Justice Sotomayor disagrees with this lower court decision as well as the SCOTUS declining to review Mr. Trevino’s petition.  

From her dissent, Justice Sotomayor points out that Trevino’s fetal alcohol spectrum disorder is key to understanding his violent behavior, and this was never presented to the jury during the sentencing phase.

She states (Dissent, page 13)(emphasis added):

The Fifth Circuit majority’s error is glaring, because considering all of the evidence, including that relating to Trevino’s FASD, it is obvious that “there is a reasonable probability that at least one juror would have struck a different balance.” Wiggins, 539 U. S., at 537.

The Fifth Circuit majority plainly misapplied our precedents. Absent intervention from this Court to correct that error, Trevino remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered. That result is indefensible, especially where our failure to intervene sanctions the taking of a life by the state. I therefore respectfully dissent from the denial of certiorari.”

___________________

Once again, these tragic results in appellate review demonstrate the incomprehensible importance of experienced and aggressive defense counsel in the initial criminal trial and its penalty phase.

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