Death Penalty Mitigation: Fetal Alcohol Evidence (FAE)
October 3rd, 2016

In Trevino v. Davis (5th Cir. 2016) 829 F.3d 328 the district court erred by concluding that evidence of Fetal Alcohol Effect (FAE) was “double-edged,” suggesting future dangerousness, so there was no prejudice from trial counsel’s failure to develop it.  According to petitioner’s habeas expert, “his history of FAE clearly had an impact on his cognitive development, academic performance, social functioning, and overall adaptive functioning. These factors, along with his significant history of physical and emotional abuse, physical and emotional neglect, and social deprivation clearly contributed to Mr. Treviño’s ability to make appropriate decisions and choices about his lifestyle, behaviors and actions, his ability to withstand and ignore group influences, and his ability to work through and adapt to frustration and anger. These deficits would not only have impacted any of Mr. Treviño’s decisions to participate in or refrain from any activities that resulted in his capital murder charges, but also likely impacted his ability to understand and make appropriate decisions about the plea offer presented by his counsel.”  Treviño’s failure to express remorse was “the most aggravating factor,” but FAE can produce an “inability to express remorse in a recognizable manner.”

Regarding remorse, see F 763.13.

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