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Zack Warrant: Looking closer at Fetal Alcohol Syndrome
Zack’s first claim seeking relief from his execution scheduled for October 3 focuses on Fetal Alcohol Syndrome. So what is FAS?
As explained this week, Michael Zack’s first claim seeking relief from his execution scheduled for October 3 focuses on Fetal Alcohol Syndrome and how it affects his functioning.
So what is Fetal Alcohol Syndrome?
Explaining Fetal Alcohol Syndrome
The Centers for Disease Control and Prevention (the “CDC”) explains that “[f]etal alcohol spectrum disorders (FASDs) are a group of conditions that can occur in a person who was exposed to alcohol before birth.”1 “FASDs refer to a collection of diagnoses that represent the range of effects that can happen to a person who was exposed to alcohol before birth.” Alcohol consumed by the pregnant mother “passes to the baby through the umbilical cord.”2 “Alcohol causes higher blood alcohol concentrations in [the fetus] than in [the mother’s body because a fetus metabolizes alcohol slower than an adult does.”3 Further, “[a]lcohol interferes with the delivery of oxygen and optimal nutrition to [the fetus].”4
The effects of an FASD vary for each person.5 The effects “can include physical problems and problems with behavior and learning. Often, a person with an FASD has a mix of these problems.”6 These effects “can range from mile to severe” and may include:
Low body weight
Difficulty with attention
Difficulty in school (especially with math)
Speech and language delays
Intellectual disability or low IQ
Poor reasoning and judgment skills
Sleep and sucking problems as a baby
Vision or hearing problems
Problems with the heart, kidneys, or bones
Small head size
Abnormal facial features, such as a smooth ridge between the nose and upper lip (this ridge is called the philtrum)
“FASDs last a lifetime. There is no cure for FASDs.”7 However, there may be treatment options to address individual effects.8 Also, protective factors may has a positive impact on those affected by FASD.
However, Dr. Natalie Brown, who submitted a Declaration in support of Zack’s postconviction motion, writes that “[i]nfants born with FASD are” less likely to have the benefit of protective factors:9
Fetal Alcohol Syndrome
Fetal Alcohol Syndrome (FAS) was first documented in “a French peer-reviewed journal in 1968.”10 It was first identified in the United States in 1973.11 The “first diagnostic guidelines for FAS” were published in 1980.12
FAS is “the most involved end of the FASD spectrum.”13 As to the effects of FAS:
People with FAS have central nervous system (CNS) problems, minor facial features, and growth problems. People with FAS can have problems with learning, memory, attention span, communication, vision, or hearing. They might have a mix of these problems. People with FAS often have a hard time in school and trouble getting along with others.
FAS and Florida’s Recent Executions
Of the five people executed so far this year, records show that at least two had FAS: (1) Donald Dillbeck (executed February 23, 2023),14 and (2) James Barnes (executed August 3, 2023).15 In addition, the records suggest that Louis Gaskin (executed April 12, 2023) and Duane Owen (executed June 15, 2023)16 also suffered from FAS.
Zack’s Effects from FAS
Zack’s argument is that his FAS renders him intellectually disabled such that his execution would violate the Eighth Amendment under Atkins v. Virginia. (More on that caselaw here.)
Records attached to Zack’s postconviction motion in the trial court show that Zack was diagnosed with FAS before his 1997 trial.17 Records show that his mother “drank 6-10 beers at least twice per week throughout her pregnancy . . . .”18 According to Dr. Julian Davies, Zack’s “deficits have been apparent for the entirety of his lifespan.”19
Zack’s case was “[o]ne of the earliest instances where the FASD Legal Issues Resource Center,” which was established at the University of Washington’s Fetal Alcohol and Drug Unit in 2001, collaborated.20
According to Dr. Brown, “the science regarding the impact of FASD on functioning was inexact” at the time of Zack’s trial and has since developed significantly.21 Dr. Brown further wrote that “[t]he evolving understanding of FASD and its functional equivalence to ID has been of great import in the legal system, particularly in capital cases.”22 She writes that “the scientific and medical community has finally come to a consensual tipping point establishing FASD as a condition requiring special protections in the legal system.”23
Dr. Brown explained Zack’s effects of FAS to include:
“microcephaly, a physical feature present in FAS wherein the head and brain are deficient in size”
“childhood speech, language, and motor delays”
Zack “started crawling late” and “did not walk until he was 18 months old. He had communication delays as a toddler” and bed-wetting “into his teenage years.”24
“chronic academic achievement deficits”
“low IQ scores, verbal deficits, impaired executive functioning, and a significant ‘split’ between verbal and performance scores . . .”
“a lifelong history of intellectual and adaptive impairments”
“Zack was unable to complete simple chores and routine tasks” like washing dishes and laundry.25
Further, Dr. Brown states that Zack grew up in “a profoundly abusive environment . . ., which exposed him to risk factors known to exacerbate cognitive/adaptive dysfunction and associated development disabilities” and noted “an utter absence of protective factors . . . .”26
Prior TFDP Coverage of the Zack Warrant
The full background of Zack’s case is available here.
The Florida Supreme Court’s Scheduling Order is available here.
Beginning of trial court litigation here
The trial court’s Scheduling Order is discussed here.
The litigation related to public records is covered here.
Continuance due to Hurricane Idalia
The State’s responses to Zack’s motions in the trial court
My thoughts are with everyone involved in the warrant and execution process. My thoughts are also with everyone affected by Hurricane Idalia.
Basics about FASDs, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/ncbddd/fasd/facts.html.
See Fetal alcohol syndrome, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/fetal-alcohol-syndrome/symptoms-causes/syc-20352901.
Basics about FASDs, supra note 1.
Declaration of Natalie Novick Brown, at 9 (Aug. 27, 2023) [hereinafter Brown Decl.].
Id. at 1.
Declaration of Julian Davies, at 1 (Aug. 27, 2023) [hereinafter Davis Decl.].
Brown Decl., supra note 9.
Basics about FASDs, supra note 1.
Dillbeck v. State, 357 So. 2d 94, 97 (Fla. 2023) (stating that Dillbeck’s fetal alcohol effect was a mitigating circumstance considered by the trial court).
Brown Decl., supra note 9, at 1.
Id. at 11; accord Davies Decl., supra note 11, at 5.
Davies Decl., at 5.
Brown Decl., supra note 9, at 4.
Id. at 5.
Id. at 7.
Davies Decl., supra note 11, at 5.
Brown Decl., supra note 9, at 11.