IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
Appellee, : Case No. 94-722 vs. : Death Penalty Case
JOHN FAUTENBERRY,
Appellant.
JOHN FAUTENBERRY'S AMENDED LIMITED MOTION FOR STAY OF EXECUTION
John Fautenberry moves this Court for a stay of his execution which is set for July 14, 2009. He currently has a request pending in the federal court district for funding to pursue clemency. That request is made pursuant to a recent United States Supreme decision from which he could not have previously benefitted. Mr. Fautenberry has attached a memorandum in support that he incorporates in this motion. He requests that this Court stay his execution for a period of sixty days.
NNIS L. STE - 0906199 Buell and Sipe Co. LPA - 2 322 Third Street sii^r : 2( t a Marietta , OH 45750 740-373-3219 (Telephone) 00:.CtES Cti- COUFi7 (740) 373-2892 (Facsimile) SUPREME COURT Our GE;fo den nisa,buellsipe . com COUNSEL OF RECORD
And
Office of the Ohio Public Defender
RANDALL L. PORTER - 0005835 Assistant State Public Defender
TYSON FLEMING - 00731351 Assistant State Public Defender
230 E. Broad Street - Suite 1400 Columbus, Ohio 43215 (614) 466-5394 (Voice) (614) 644-0708 (Facsimile) T'yson.Flening@opd. ohio.gov Randall. [email protected]
Counsel for John Fautenberry
MEMORANDUM IN SUPPORT
On April 1, 2009, the United States Supreme Court decided Harbison v.
Bell, 129 S.Ct. 1481 (2009). The Court in Harbison declared that federal habeas counsel's appointment extended to state clemency proceedings. On June 3,
2009, the federal court extended Dennis Sipe's ("Undersigned") appointment for purposes of the state clemency proceedings. Fautenberry v. Mitchell, S.D. Ohio
Case No. 1:00-cv-00332. Undersigned, pursuant to the appointment, has requested funding from the federal court for the clemency proceedings. [Doc.
No. 126]. That motion is still pending.
2 This Court has set an execution date for July 14, 2009. State U.
Fautenberry, 121 Ohio St. 3d 1437, 903 N.E.2d 1221 (Ohio 2009). The parole board has scheduled Mr. Fautenberry's clemency hearing for June 16, 2009.1
1. CLEMENCY IS AN INTEGRAL PART OF THE PROCESS
Clemency performs an integral function in the capital appeals process, one that complements the role of the courts. There are at least two critical functions that the clemency process plays that the courts do not. First, clemency is a means of last resort for correcting error in the process. Second, the clemency process permits the state executive to consider sentencing factors that courts, for a variety of reasons, may not have been able to take into account, such as capital defendants' blameworthiness, the proportionality of the sentence, and the desirability of exercising mercy. Clemency, in other words, provides a final opportunity to review both a defendant's convictions and sentences.
The Supreme Court's most clear statement of its reliance on a robust
clemency process to ensure the correction of erroneous verdicts was articulated
in Herrera v. Collins, 506 U.S. 390 (1993). In Herrera, the Court essentially
foreclosed claims of actual innocence on habeas review that were not presented
to the trial court. Integral to the Court's holding was that clemency provides a
mechanism for review of the potential errors that habeas review is not able to
correct: it is the '-fail safe' in our criminal justice system." Id. at 415; see also
at 417 (clemency is the "remedy for claims of innocence based on new evidence,
1 The Governor has previously ruled on clemency requests just prior to the execution. As a result, he has accepted information concerning clemency until he renders his decision. Thus, the Parole Board's conducting of the June 16, 2009 hearing will not moot this request.
3 discovered too late in the day to file a new trial motion"). The Court therein also stressed the rich history of clemency in Anglo-American criminal law. It "can be traced back to the 700's," featured prominently in Blackstone's Commentaries and the Federalist Papers, and today is available in all thirty-six states that authorize capital punishment. Id. at 412-14. Indeed, "[c]lemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." Id at 411-12
(footnote omitted).
II. MR. FAUTENBERRY HAD NO RIGHT TO COUNSEL IN CLEMENCY PRIOR TO HARBISON.
Undersigned was appointed and represented Mr. Fautenberry throughout the federal habeas proceedings. However, pursuant to Sixth Circuit precedent, once those proceedings concluded, the appointment expired and did not extend to state clemency proceedings. Harbison v. Bell, 503 F. 3d 566, 570
(61h Cir. 2007); House v. Bell, 332 F. 3d 997, 998-9 (6ffi Cir. 2003) (en banc).2 At that point, Mr. Fautenberry faced the daunting task of being represented by
one attorney, and that attorney faced the real possibility of appearing pro bono.
Undersigned's law firm consists only of two lawyers and lacked the resources to
provide pro bono representation for Mr. Fautenberry.3
2 The attorney the federal district court appointed as co-counsel was removed by the Sixth Circuit. 3 At the conclusion of Mr. Fautenberry's habeas proceedings, the Office of the Ohio Public Defender, despite having no familiarity with the case agreed to represent Mr. Fautenberry in clemency and any last minute litigation. While that Office had represented Mr. Fautenberry in state post-conviction, One of the attorneys who represented him has left the Office. The other attorney had ceased doing capital cases.
4 III. THE SUPREME COURT RECOGNIZED THE RIGHT TO COUNSEL.
On April 1, 2009, the Supreme Court held that 18 U.S.C. "§ 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation." Harbison, at 1491. The Court found that the plain wording of the statute dictated this result. Id. at 1486. See § 3599(a)(2)(e) ("each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including . . . proceedings for executive or other clemency as may be available to the defendant").4
After the Supreme Court decided Harbison, Mr. Fautenberry had to revisit the issue of who would represent him in the clemency proceedings. The undersigned, state public defender, and the federal public defender expressed
interest. Ultimately, it was agreed that undersigned would represent Mr.
Fautenberry, given his knowledge of his case.s The holding in Harbison was
instructive, "the work of competent counsel during habeas corpus
representation may provide the basis for a persuasive clemency application.
4§ 3599 uses the term "defendant" to denote post-conviction litigants. Harbison, 129 S.Ct. at 1486, n.2. 5 The Ohio Public Defender agreed to provide two attorneys for support. Unfortunately, the more experienced of the two attorneys was one of the attorneys who represented Michael Bies before the United States Supreme Court. Bies v. Ohio, Case No. 08-598. Thus, he was not available until after April 27, 2009. He was also lead counsel in a capital resentencing hearing scheduled to start in the middle of May, but an illness in his family caused that resentencing hearing to be continued.
5 Harbison's federally appointed counsel developed extensive information about his life history and cognitive impairments." Harbison, 129 S. Ct. at 1491.
IV. CLEMENCY COUNSEL IS REQUIRED TO REINVESTIGATE THE CASE.
Clemency counsel is under a duty to "conduct an investigation in accordance with Guideline 10.7." 2003 Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Case, § 10.15.2. ("ABA
Guidelines")6 "Counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty."
2003 ABA Guideline 10.7. A thorough investigation includes the defendant's
"(1) medical history (including hospitalizations, mental and physical illnesses or injury, alcohol and drug usage, pre-natal and birth trauma, malnutrition, development delays, and neurological damage); (2) [fJamily and social history
(including physical, sexual or emotional abuse; family history of mental illness, cognitive impairments, substance abuse, or domestic violence, poverty, familial instability, neighborhood environment, and peer influence) . . ;" Id. at
Commentary. The "penalty phase investigation requires extensive and generally unparalleled investigation into personal and family history.(citations omitted)"
Id.
6 The American Bar Association standards accurately reflect the prevailing norms for purposes of evaluating counsel's performance. Wiggins v. Smith, 539 U.S. 510, 524 (2003); Hamblin v. Mitchell, 354 F.3d 482, 487 (611, Cir. 2003). Counsel must fully comply with these norms. Dickerson v. Bagley, 453 F.3d 690 (6th Cir. 2005).
6 V. THE REINVESTIGATION INCLUDES THE RETENTION OF EXPERTS..
The investigation "will often require specialized research and expert consultation." 2003 ABA Standard Guideline 10.7, Commentary. Counsel should "establish a direct cause and effect between" mitigating factors and the commission of the offense. 2003 ABA Guideline 10.11, Commentary. Counsel should consult with experts to explain the significance of the events in a client's life, "For example, expert testimony may explain the permanent neurological damage caused by fetal alcohol syndrome or childhood abuse, or the hereditary nature of mental illness, and the effects of these impairments on the client's judgment and impulse control." 2003 ABA Guideline, 10.11,
Commentary. Likewise, the defendant must explain the commission of the offense in the context of the defendant's mental health deficits and other mitigating factors. Id.
VI. EXPERT ASSISTANCE IS CRITICAL GIVEN THE FACTS OF THIS CASE.
If Mr. Fautenberry is to receive fair consideration for clemency, he
requires expert assistance. Mr. Fautenberry is indigent and therefore cannot
afford to retain any experts. Mr. Fautenberry has not had the benefit of expert
assistance since 1996. But that evidence establishes a good faith basis to
believe that he will benefit greatly from the retention of new experts:
Exhibit 1: Mr. Fautenberry suffers from brain impairment. [Id. at Exhibit 1, Exhibit A attached thereto, pp. 143, 145]. The type of brain impairment from which he suffers can "cause serious problems in such areas of day-to-day functioning as impulse control; modulation of affect; planning; problem-solving; and the capacity to tolerate frustration." [Id. at 146].
7 Exhibit 2: As a child, Mr. Fautenberry had Attention Deficit/Hyperactivity Disorder which went undiagnosed. [Exhibit 2 p. 161]. Instead of seeking assistance for his disorder, his stepfather responded by beating him. [Id.]. As a result, Mr. Fautenberry lived in chronic fear of physical abuse. There is a correlation between abused children and adults who abuse others. A parent's aggression and violence leads to conditions of rage and violence in the child. [Id.].
Mr. Fautenberry's Attention Deficit/ Hyperactivity Disorder, the rage resulting from his early abuse and familial chaos, and the history of head trauma, predisposed him to the type of violent behavior he displayed during the
commission of the homicides. [Id. at p. 163]. Unfortunately the three judge
panel did not hear most of this information. In fact, the only expert that
defense counsel called at trial testified that Mr. Fautenberry did not suffer from
brain impairment. His attorneys pled him no contest to all the charges and
specifications, a tactic almost never pursued in a capital case in the State of
Ohio. He received no benefit in exchange for his no contest pleas.
VII. THE COURT SHOULD ENTER A LIMITED STAY OF EXECUTION.
Mr. Fautenberry, with the assistance of experts, has meaningful evidence
to present at the clemency proceedings. Judge Moore concluded in her dissent
in the Sixth Circuit, "Given Fautenberry's history of physical abuse, headaches,
and significant head injuries, his counsel had an obligation to investigate fully
a potential mitigation defense of an organic brain defect." Fautenberry v.
Mitchell, 513 F. 3d 613, 654 (6th Cir. 2008). Because they did not conduct the
necessary investigation, defense counsel "repeatedly emphasized to the
sentencing panel that their client had no mental deficiencies." Id.
8 Accordingly, Mr. Fautenberry respectfully moves the Court to grant a limited reprieve with regard to Mr. Fautenberry's July 14, 2009 date for execution.7 He requests that this Court stay his execution for a period of sixty days.
^NNIS L. SIPE ell and Sipe Co. L 0 322 Third Street Marietta, OH 45750 740-373-3219 (Telephone) (740) 373-2892 (Facsimile) denni s(&buellsipe. com
LEAD ATTORNEY ATTORNEY TO BE NOTICED
And
Office of the Ohio Public Defender
TYSON FLEMING - 00731351 Assistant State Public Defender
RANDALL L. PORTER - 0005835 Assistant State Public Defender
250 E. Broad Street - Suite 1400 Columbus, Ohio 43215 (614) 466-5394 (Voice) (614) 644-0708 (Facsimile) Tyson.Fleming(&OPD.gov
7 The granting of this motion will not open the floodgates for the granting of similar motions in other cases. Mr. Fautenberry, because of the timing of the Harbison decision in relation to his execution date, did not have sufficient advance knowledge to fully benefit from the holding. For other applicants, clemency counsel will have advance notice of the ruling so as to not need a continuance.
9 Randall. Porten'^aOPD. ohio. gov
Counsel for John Fautenberry
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing JOHN FAUTENBERRY'S
AMENDED LIMITED MOTION FOR STAY OF EXECUTION was sent by regular
U.S. Mail to the Offices of Ronald W. Springman Jr. Assistant Hamilton County
Prosecutor, 230 E. Ninth Street, Suite 4909, Cincinnati, Ohio 45202, this the
16th day of June 2009.
ENNIS L. SIPE 0 COUNSEL FOR J
10 JEFFREY L S1ViAI.LDON, PH.A. CEinical, Forensic, and Neuropsycbologial Consultauon
t D,.id J. Temeebmm, PILD. md Amdare 37% Olatana 1liWC 8oad - Columbu', OLin 432143455 7dephone 6 141514317 - Tdmepia 614 431d367
STATE OF OHIO Case No. B912206 ) FRANKLIN COUNTY ) State of Ohio v. John Joseph Fautenbeny
AFFIDAVIT OF JEFFREY L. SMALLDON, Ph.D.
I, Jeffrey L. Smalidon, Ph.D., being flrst sworn upon my oath, do depose and state the following:
1. 1 am a psychoiogist ilcensed to practice In the State of Ohio. My professional practlce is located at 3796 Olentangyitiver Road, Columbus, Ohio 43214. 1 recehred my Ph.D. from The Ohio State Universiry In 1989, and I have been Iicensed (No. 4376) since 1990. 1 would esttmate that since receMng my Ph.D., I have conducted J clintcal, forensic, and neuropsychotogical evaiuatlons of somewhere In excess of 1000 Individuals. •
2. One area of clinical pracdce In which I have sought spedal trainfng, knowledge, and skiit Is Iri forensic cQnlcal and neuropsychologlcal auessment. I am frequently asked xo evaluate IndhAduals who have been lndlcted or convicted on capital murder charges. To date, I have provlded one or another sort of consultadon In approximately 70-75 death penalty cases:
3. 1 was retained In April of 1996 by Richard Vickers, Esq., and Stephen Hardwkk, Esq:, attorneys of record fbr Mr. John Joseph Fautenberry, who Is currently housed on death row at the Mansfield Con-ecdonal lnstitudon. In 1992, Mr. Fautenberry was sentenced to death by a thre.e-judge panel after having been found gutlty of aggravated murderwith spedftcatlons. The spedBc request from Mr. Vickers and Mr. Hardwick was that I condua a neuropsychological evaluatton of thelr client, and that I considerwhether data obtalned from that evaluation would have been relevant,•had It been available, at the tlme of Mr. Fautenbeny's sentencing Iri 1992. j 4. Attached, and marked as Exhibit A, Is the neuropsychologi4at evaluatlon that I have prepared In response to the above•described requesL Swom to and subscn'bed before me, a Notary Pubfic, thfs 5th day of June, 1996.
t o ry Public
EDNA G. CHANDEER NOTARY PUSUC. STATE OT OHIO !-IY COMAiISS1ON EXPIRES i&I00 Printed Atame
My commission expires:
Volume IX pg 131 JEFFREY L SMAIIDON, PH.D.. Clinical, Formsiq and Neuropsychological Consultation n,.;a J. T^h=zas, Pn.n, .od A^e. 37% Oleotanay Ilirc Road - Columbny Ohio 43214-3455 Tdephnne 614 4314517 - Tekmpiv 614 451-5387 .1 Exbl6tt A
NEUROPSYCHOLOGICAL EVALUATION JOHN]OSEPH FAU'fENBERRY
May 15, 1996 DOB 7/4/63 (Age 32)
State of Ohio v. John Joseph Fautenbeny Case No. 8912206 (Hamilton County)
I Reason for Referral John Joseph Fautenberry is a 32-year-old, right-handed, single, Caucasian male with nine years of fonnal educatJon (and a subsequentiy obtained GED) who B referred for neuropsychological evaluatlon by his legal counsel, Richard Vickers, Fsq. and Stephen Hardwick, Esq., both currently employed with the Office of the Ohlo Public Defender.
The referral request was for a comprehensive neuropsychologicai assessment, and for a consideration of whether flndings obtained through that assessment might, had they been available at the time, been of relevance to the three-judge panel whose members were h1 the positlon of dedding among several possible sentencing optlons when they determined that Mr. Fautenbeny should receive the death penalty after pleading no contest to a charge of aggravated murder whh specifications in 1992.
Evaluacion Procedures
In order to complete my consultatlon, I saw Mr. Fautenberry for an extended 3 Interview/assessment session on May 15, 1996 at the Mansfield Con-ecdonai Institutfon, where he is currently housed on Ohio's death row. Our meeting was held In a reasonably comfortable conference room located Just off the death row living quartets. For the most part, conditions were adequate, although there were occasional noises from the adjoining hallway. At one polnt, I spoke whh deputles asslgned to maintain securfty, requesting that noise outside the door where we were meeting be kept to a minhnum so that I could obtain accurate results on several test procedures specifically designed to assess auditory attention skills.
Volume IX pg 132 .2.
NEUROPSYCHOLOGICAL EVALUATION ( Cont'd) JOHN J. FAUTENBERRY
In addidon to a relatively bdef and circumscribed clinical Interv(ew that focused on aspects of the history with relevance to the question of possible brain impairment, I administered a wide-ranging battery of tests and assessment procedures that included the fottowing: Wide Range Achlevement Test-Third Revision (WRAT-3), Rey's 15-item Visual Memory Test, Sensory-Perceptual Examination, Dynamometer, Finger Oscmation Test, Tralt Making Test (Parts A and B), Aphasia Screening Test, Seashore Rhythm Test, Speech Sounds Perceptkn Test, Tactuai Performance Test, Booklet Category Test, and the Controlled Oral Word Associatlon Test. I attempted to administer the Wechsler Memory Scale-Revised (WMS-R) as well, but I ended up needing to be sadsfied whh a slightly abbrevlated version of this particular assessment insuvment since Mr. Fautenberry's pardai color bOndness made hlm unable to complete certain portions of the test. I aiso made use In my assessment of some test data obtalned from Mr. Fautenberry recently by Sharon Pearson, Ph.D.
Prior to. conducdng my assessment, I spoke brleffy by telephone whh Mr. Vickers, as well as with K. Pamela Swanson, a mitigation specialtst employed by the Ohio Pubiic Defender. In addition to their provtsion of an assorcment of background niaterials which wip be Identifled whh greater speclficity below, they provided for my review the data alluded to above which had recently been obtained from Mr. Fautenberry by another psychologist, Sharon Pearson, Ph.D., who was retained by the Public Defender's office to conduct a dinical (as opposed to neuropsychological) evaluation of Mr. Fautenbeny. The tests administered by Dr. Pearson Included the folbwing: the Wechsler Adult inteiligence Scale-Revised (WAIS-. R), Bender Visuaf Motor Gestalt Test, Trail Maldng Test (Parts A and B), House-Tree-Person, and the Minnesota Multiphasic Personallry Inventory-2 (MMP1-2).
TheJatter test was found to be uninterpretable due to the unusuaily large number of pathological items which Mr. Fautenbeny endorsed. A Mding of this sort is sometimes associated with an examinee's deliberate attempt to exaggerate hts/her symptomatology, but R can as easily signai a state of mental confusion; an interest In conveying, even through Indirect means, a very high level of current dlatress; or a response set geared toward the endorsement of any symptom which seenu to suggest piychologlcal dysfunction by an Individuai who considers him- or herself to be very seriously maladjusted.
A number of different background materlals were provided for my revlew and consideration, Including the foliowing:
Interview notes and a chronological dmeline prepared by mldgatlon speclalists from the Office of the Ohio Public Defender,
Notes documenting an Interview with family friend Louise Corcoran that was J conducted by a social worker (Shiriey Leahy, ACSW, LISW) as part of preparation for Mr. Fautenberry's 1992 legal proceedings;
Volume IX pg 133 -3-
NEUROPSYCHOLOGiCAL EVALUATION (Cont'd) JOHN J. FAUTENBERRY
lnstitutional records from the Hamllton County Sherlff s Department, as well as ftm the Ohlo Department of Rehabilitation and Corrections;
l:ducational records from Connectlcut, Washington, Hawall, and Gllfomia;
Limited records docurrrendng Mr. Fautenbeny's service In the United States Navy;
Assorted medical records;
Reports prepared by various mental health professlonals during the months following Mr. Fautenberry's 1991 arrest and Incarceration in Ohio, Including, . two competency to stand tiial evafuadons conducted by Nancy Schmidtgoessling, Ph.D. (November of 1991 and March of 1992);
a criminal respoesibilhy assessment prepared by Dr. Schnitdtgoessling. In November of 1991;
. a September 1992 report by Dr. Schmidtgoessling that was apparently prepared "fbr purposes of a mitigation hearing";
a conipetency to stand triat evaluation conducted by William S.. Walters, Ph.D. In Octoberof 1991;
a criminal responsibllity evaluation conducted by Dr. Walters, also (n Occober of 1991;
. a combined competency to stand trtal and criminal responsibility assessment prepared by Emmett G. Cooper, M.D. In November of 1992;
. two separate assessments performed by Salah M. Samy, M.D. of the Dayton Mental Health Center, both prepared In June of 1992 and both apparently meant to address, among other things, the questlon of Mr. Fautenbeny's competency to stand trial; and
a psychosocial history compiled by staff from the Dayton Forensic Unit In June of 1992.
.j
Volume IX pg 134 -4-
, NEUROPSYCHOLOGICAL EVALUATION (Cont'd) )OHN J. FAUTENBERRY
In the course of preparing my evaluation, I have also conferred briefly with Sharon Pearson, Ph.D., the psychologist who was retained by the Oftice of the Ohio Public Defender to conduct a dinical assessment of Mr. Fautenberry.
Brief Review of Trial-Level Psychologiul Assessment
For present purposes, I wish simply to highlight several aspects of the pre-trial mental health consultation whlch in my professional opinion have relevance to issues that the higher courts are currentty being asked to consider.
Ohio statute states very clearly that any examiner asked to perform a competency to stand trial and criminal responsibility assessment of the same defendant must prepare two separate reports, one addressing each psycholegal issue (see Section 2945.371 [E]). For obvlous reasons 1 am concemed over the fact that Emmett G. Cooper, M.D. attempted t.o address and offer professional opinions aboutpt o the Issues of competency to stand trial and aiminal responsibility in a single, remarkably superfidal two-page report dated November 8,. 1991 that would almost certainly leave any reader wondering how the examiner managed to travel the distance from point A (where the, examiner Indicated which psycholegal questions he had been asked to address) to point B(where he expressed his opinions on those questions). .
Despite the fact that Sectton 2945.371 of the Ohio Revtsed C.ode very explidtJy states that an examiner's report addressing the competency Issue should lndude "the facts in reasonable I detail-on which the findings are based," Dr. Cooper'srepon: Includes almost no informadon at all which might be seen as the foundation for a professional opinion on whether or not a criminai defendant Is competent to stand trial.
So far as I am able to determine from the text of his report, Dr. Cooper performed no tesdng, In fact no kind of fonnal assessment at ali beyond a clinical Interview of unspeciffed length, yet still he opines in hls report that Mr. Fautenberry's "cognitive funcdons were intatt," a conclusion that was, based on my own findings, most likely Inaccurate. The sum total of Dr. Cooper's attempt to address the complex Issues Involved ln assessingcompetency is as follows: "[Mr. Fautenbenyj understands the charges against him, and the legal proceedings In which he b Involved. In my opinion he can assist his attomey in his defense. In my opinion, he Is competent to stand trial."
Since the primary referral quesdon which I have been asked to address Is Mr. Fautenbeny's neuropsychological functioning -- and, more specifically, the possibliity that he may have some degree of functional brain impairment -- I have been pardcularly attentive to how the various mental health professionals who examined h[m in advance of his eventual sentencing
Volume IX pg 135 -5- .
NEUROPSYCHOLOGICAL EVALUATION (Cont'd) JOHN J. FAUTENBERRY
hearing before a three-judge panel represented his cognitive abliides, and also to the body of data on which the oplnions of these various professionals were presumably based,
I should note In this context my recognitton that some attempt was apparenty made to secure Mr. Fautenbeny's cooperatlon with a neuropsychological evaluation prior to hls eventual sentencing. My understanding Is that he refused to collaborate whh such an evaluatlon, although his refusal may weD have stemmed from what, by that time, wa's a seriously compromised relatlonship whh his legal counsel. In any case, I am less concemed at present with the Issue of whether or not neuropsychological testing was performed than I am wlth the question of whether those clinicians who offered lnformadon to the sentencing authority had available to them at the time sufficien't data to serve as a foundation for the optnions that they ultimately expressed..
Obviously, the triers of fact were in part dependent on Input from these various experts when they considered, prior to passing sentence, which among the statutoriy-defined mitlgation factors might be pertinent In this parctcuiar case. Of course. one of those factors Is the possible presence of a "mental defect" which may substantialy Impact upon the defendant's "capadry to appredate the criminaliry of hls conduct" or "confonn his conduct to the requirements of the law."
I have already remarked upon Dr. Cooper's passing reference to his Impression that.the defendanc's "cognitive functions'were intact." Dr. William Walters readily concedes In his. two reports that he underr.ook no formal assessment of Mr. Fautenberry's cognitive funcdons, and that his Impression of general lncellectuai functloning "within the average range" was based solely on his clinical interview. In his two reports, Dr. Salah Samy indicates that It was his impression, based on his interviews whit the defendant, that Mr. Fautenbeny's "cognitive funcdon" was "average, probably In the upper range." So far as I am able to determine, he neither conducted nor requested any forrnal tesdng, the findings from which might have allowed him to offer a more complete and more accurate descriptlon of Mr. Fautenberry's cognitive functioning.
As noted previously, Dr. Schmidtgoessling prepared four separate forensic evaluations In this case, two addressing the Issue of competency to stand trial, one addressing the crlminal rrsponsibifity issue, and one spedflcally Intended "for purposes of a mittgation hearing." She was apparently the only expert asked to prepare a report earrnarked for the sentencing authority's use In weighing aggravating factors of the tnstant offense against any factors found to be present In mitigation.
In addition to her interviews with the defendant, and her review of assorted background materials, she had, back when she had flrst assessed Mr. Fautenbeny about a year earlier, during the fall of 199 1; perfonned a limited battery of more fonnal assessment procedures
.J
Volume IX pg 136 -6-
NEUROPSYCHOLOGICAL EVALUATION (Cont'd) JOHN J. FAUTENBERRY
, that had Included the foilowing: the Wechsler Adult Intealgence Scale-Revised (WAIS-R), the Raven Progressive Matrices, the Bender Vtsual Motor Gestalt Test, the Wechsler Memory Scale (WMS), the Trail Making Test (Parts A and B), and the Mlnnesota Muldphasic Personality Inventory (MMPI).
it is Important for present purposes that these fomul assessment procedures be spedfled since 8ndings obtained from them consthute the foundadon for some of the opinions expressed by Dr. Schmldtgoessling. Her. report - prepaied, recall, "for purposes of a mltigation hearing" - Inciudes the fopowing statements whh respect to Mr. Fautenbeny's cognitive functioning:
. "There were no indications that Mr. Fautenberry was suffering from any major psychiatric impalrrnent or organic impainnent at the tlme of the current evaluation" (page 2);
. "Selected neuropsychological items show that Mr. Fautenbeny Isable to abstract, he understands both written and verbally presented infomnation, hts expresshre speech is intact, and he ls cognitively capable of complex reasoning. In short, the availabie psychological testing yielded no signs suggestive of organic impalrment' (page 3); and .J . "In conclusion, Mr. Fautenberry was evaluated on several occasions and the results of those evaluations indicate that [he] has never suffered from any major mentai disease or defect. The available information is not suggestive of any kind of organic impainnent" (page 3).
Any lay reader of this report could reasonably have been expected to conciude from these statements that Mr. Fautenbeny !s whhotn any sort of functlonai brain Impairment which mlght constitute a "mental defect."
In fact, however, no recognized neuropsychologlwl test battery was ever perfortned, and thus there was not available a sufficient body of data to justify a conclusion - one way or the other - about the presence of brain impairment. No professlonal with spedallzed training and experience In neuropsychological assessment would expect to leam from the ilmited battery of tests administered by Dr. Schmidtgoessling whether Mr. Fautenberry Is braln hnpaired. Such tests as the Trail Maldng Test (Parts A and B), the Bender Visual Motor Gestalt Test, the Wechsler Adult Intelligence Scale-Revised (WA1S-R), and the Wechsler Memory Scale (WMS) do not at present enjoy widely-accepted status even as effective means of "screening for" organic brain Impairment, and the data derived from this battery, whlle perhaps suggestive, Is not sufficlent to rule out the presence of.such impalrment.
Volume IX pg 137 NEUROPSYCHOLOGICAL EVALUATION (Cont'd) JOHN ]. FAUTENBERRY
The primary point requlring emphasis here Is that the triers of fact In Mr. Fautenberry's case were told, in essence, by a variety of different mental health consuttants, that the defendant's brain funcdoning was "normal," even though the kind of testing which would have been needed to justify such a conclusion was never performed prior to the defendant's sentencing hearing.
Findings from the Current Neuropsychological Evaluation
Mr. Fautenbeny presents as an alert and fully oriented although prkkty, Intense, and Interpersona(fy distancing lnterview subject. While fuily cooperative with all evaluation procedures,. stiil he struck me as edgy and at best amblvalent toward the entire request that he undergo neuropsychological assessment. We discussed at the outset the context for my I consultation, and he appeared to undetstand both hs purposes and the confidentiailty limits that h entailed.
Although he agreed to proceed, his prevailing attltude might best be summarized by a brief exchange which took place just minutes into the Interview. We met In a private conference room just off the death row unft where he is housed. There was lntermittent noise conting from the hallway outside our rooni, and at one point I remarked that I might need to speak with the correctional officers stationed down the hall about our need for fewer distractions during formal tesdng. Mr. Fautenberry responded to my observation by stating In a curt but matter-of-fact fashion, "If there's too much nolse, I'll just get up and leave."
As already noted, he came across during my Interview with htm as an angry, edgy Individual with a remarkably distancing Interpersonal style. Throughout the lengthy assessment session, he typically sat facing away from the examiner at about a forty-five degree angle, infrequently looking up to make eye contaa and every few minutes pausing to prepare another of his hand-roped clgarettes. His mood strikes me as consisttng of about equal parts depression, anger, and stress apparently stemming from his discomfon wfth the interpersonal demands of the Interview situatlon, and his range of affective expression Is veiy notlceably constrfcted.
When asked about his sleep pattems, he comments, interestingy, that ever since he was a youngster, his sleep has been Irregular and erratic. He can recall many tlmes as a child when he would try to work to "tire [hhnselfj out" so that he could go to sleep. His appedte has apparendy decreased markedly since hls current Incarceration, more markedly still during recent weeks. In fact, he reports that when he was first arrested ]n 1991, he weighed about 285 pounds, and that by the time he was sentenced to death in late- 1992, his weight had dropped to only about 180.
Volume IX pg 138 -8-
NEUROPSYCHOLOGICAL EVALUATION (Cont'd) JOHN J. FAUTENBERRY
He concedes that he frequendy feels nke crying, but he very seldom does. Asked about current or past suicidal ldeadon, he refers to an occasion at about age 15 when he fashloned a homemade bow and arrow that he Intended to use In Idmng hlmselL. This plan was apparently thwarted when his grandparents anived home and Interrupted him. He also reports that fotlowing his arrest, he once cut his wrist In Jail. Asked abaut any more recent suicidal thoughts and/or gestures, he responds that Just recently, after a conversation with hls legal counsel, he experienced an Intensifica8on of his aiready-exisdng baseIIne feelings of futiitty and hopelessness. He stops short, however, of reporting any current suicidal plans. He is not at present on any sort of mood-altering medication, although he Indicates that when he was Incarcerated in Alaska during 1991, he was prescribed Sinequan, an antidepressant, and Benadryl to help him sleep.
Based on my own clinlwl Impressions, my review of assorted background materials which speak to his educational and vocational.histories, and my consideratlon of data obtained from current and past psychological assessment, I would esdmate his overall Intelligence as probably failing withln the average-high average range. His memory for both recent and more remote personal information appears, on clinical Inspecdon, to be grossly intact His conversat3onal speech is relathrely sparse and lacking In spontaneity, but I note no indications of clinicalty significant features such as loosening of associations, tangentlaliry, or markedy peculiar diction.
Hls insight strikes me as falr, his judgmenr as poor. The history which he htmself provides, and which is documented with greater detail In some of the background materlals which have been provided for my review, suggests a strlkingly egocentric perspective,'a nurked paudty In adaptive problem-sohdng skills, and a tendency toward very Impulsive behavior, often engaged in with what appears very minimal appredation for its long-term (mplications or consequences. He reporu no symptoms suggesdve of frank psychosis, and I note no signs or symptoms during my evaluation that would point to the presence of a fonnai thought disorder.
He reports a history of Intermittent, severe headaches dating back to around the time that he was in the seventh grade. He describes a history of two rather severe-soundlng head Injuries, either or both of which may have. lead to dinically signlflcant changes In brain funcdon. A couple of other potentialysignlficant head traumas are described below.
He estimates that the flrst major episode of head trauma occurred when he was between six and eight years of age (around the same ilme that he• dates the onset of his headaches). He was hit In the back of the head by a wooden swtng, and his recollectlon IS that he lost consciousness, although for an uncertain amount of time. He Is not entlrely sure whether he received any formal medical treatment following this Incldent lnterestingly, In ghe psychosocial history that was complled prior to Mr. Fautenberry's triat by staff from the
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Volume IX pg 139 -9-
NEUROPSYCHOLOGICAL EVALUATION (Cont'd) JOHN J. FAUTENBERRY
forensic unit of the Dayton Mental Health Center, it Is Indicated that he may have been unconscious for a period of up to seven hours. This same report notes that he sustalned a fractured skull, and It also makes expilcit the conneaton between the swing Incident and.the onset of Mr. Fautenberry's headaches, which have persisted up to the present.
The second major head trauma.occurr ed when he was In his late-teens and serving In the U.S. Navy. He reports that he was laying flat atop a pontoon, reaching down over the side to retrieve a cigarette from a lower level, when his head became wedged In between the side of the pontoon and an approaching ship. He recalls that he was unable to breath, and that he fully expected. that his head was about to be crushed. Although he was rescued, apparently before losing consdousness, he reports that ever slnce that Incident, he has experienced a high-pitched "buuing" sound In both ears that tends to Increase In volume and Intensity when he Is In an otherwise quiet room.
He reporrs that he has been told by family members of once falIIng down a set of stalcs even before he began attending school. He reports, too, that there was an Incident during his seventh-grade year where his mother hit him In the head with a frying pan, apparently because she was frustrated, over his "trouble at school." And finally, there was an Incident which occurred around the time of his sixteenth birthday, when he was lhrfig In Hawaii. He was "body-surflng" on 15-foot high wavei when one wave deposited him, head flrst, onto the beach. Although he recalls the impact as very hard, he is uncertain whether or not he lost consciousness. He did not, however, receive any fbrmal medical treatment following the Incident.
I Asked'to describe any unusual neurological symptoms that he mlght have experienced over the years -- In addltion to the headaches and the buzcing In both ears that are descaibed above -- he reports that on occasion he has had difHculry maintalning his balance while walidng, sometimes stumbling momentarily for no apparent reason. He also alludes to pain and numbness In his shoulders since an Incident at about age twelve where he accldently collided witfi a set of "monkey ban" while running at night. He reports a htstory of multtpie allergies, Including allergies to dust, pollen, and one partlcular varlety of weed. Interestingly, his mother reportedly. suffered from severe allergies, and family members have descrtbed ttmes when, after consuming red meat or ingesdng red food dye, she would experience horrible, at dmes even incapachattng headaches.
There Is Iittie avallabie documentadon of formal contacts with mental health professlonais preceding Mr. Fautenberry's 1991 arrest and incarceration. At his stepfather's lnsistence, he reponedly saw an outpatlent counselor at some point duringfiis adolescence, and he also recalls a tlme In Hawail -- when he would have been In his mid-teens - that his entire family was seen for consultadon by a family counselor. He denies any history of hospltalizatlon for any mental or emotlonal probiems. Repartsfrom any number of different family members
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Volume IX pg 140 -14
NEUROPtYCHOLOGICAL EVALUATION (Cont'd) JOHN J. FAUTENBERRY
and acquaintances of the famity point strongly toward a hlstory of chronic and somedmes severe depression on the part of his mother.
He readily concedes an extensive history of both alcohol and dnig use. He reports that he first began drinking and abusing drugs at around fifteen years of age. His drinking reportedly escalated during the eighteen months or so that he spent In the Navy during h[s late-teens. When he was interviewed by sociai service staff from the Dayton Mental Health Center In 1992, he described himself as an alcohoik. He reports that following his mother's death In 1985, he began consuming very large quantides of both rum and whiskey, eventualy switching back to beer as hts drink of choice. He readily concedes a htstory of blackouts related to his. consumption of akohol, as well as Intermhtent bouts of rage, sometimes accompanied by extreme aggression and violence, directed both toward property and toward other people. Although he denles any history of abusing prescdptlon medicatlons, he readily admits heavy use of multiple recreational substances; Including marlJuana (beginning when he was around fifteen) and, later, inhalants, LSD, cocaine, and speed.
For present purposes,l do not Intend to review the psychqsocial history In any detail. I do, however, want to highlight his. educational history since h has obvious relevance for the cvrrent referral request. Although as noted previously he would later obtain his GED, ninth grade was the last year of formal education that he completed. He recalts extensive discipQnary problems dating back to elementiry schoof, "lots of fighting, arguing." He does not recall ever being placed on Riralin or any slmilariy-accing medlcatlon for hyperacdvtry. However, some of the background records that have been provided for my review suggest that he may, in fact, have been hyperactive even if undiagnosed, and that his mother may I have tried to decrease his activity level by ghdng him cough syrup. He was appirently a desultory stndent at best. Mostly, he'received C's and D's despite his obvlous inteilige►ice, and by the time he left school he was getting nearly afl F's. He cannot recall ever feeling pardculariy motivated toward academic achievement. Aithougfi he remained In regular classes throughout.his years of formal education, he reports that he had .to repeat the seventh grade and later attend summer school ht order to complete requirements for graduation from ninth to tenth grade (he dropped out during his tenth grade year).
I will move on now to a summary of findings obtained through my administratlon of a wide- ranging battery of neuropsychological assessment procedures. Flrst, however, I want to provide a synopsis of data from the Wechsler Adult Intelligence Scale-Revised (WAIS-R), a standardized test of intellectual funNoning which was adminlstered to Mr. Fautenberry in late-]995 by Sharon Pearson, Ph.D.
Volume IX pg 141 -I1- z{ NEUROPSYCHOLOGICAL EVALUATION (Coned) JOHN J. FAUTENBERRY 1
He obtalned a Verbal IQ esdmate of 107, a Perfomunce IQ estimate of 110, and a Fu4 Scale IQ estimate of 108, this latter estlmate faliing toward the upper end of the average range: Of Interest In Ilght of Mr. Fautenberry's history of antisocial behavior Is the faa that by a significant margln, his lowest verbal subtest score Is on Comprehension, which ls deslgned to allow for an estimate of the respondent's appreciadon for matters of common sense, social judgment, and widely shared notins of culturally-acceptabie behavlor. His scores on the remaining five verbal subtests all fall at or above the mld-average range. Rather striking In light of his impoverished history of fotmal education Is the scaled score of 13 (84th percendle) he obtalns on a subtest which taps general fund of information. The suggestlon Is that Mr. Fautenperry has Independently accumulated a signiBcant store of general knowledge beyond anything he might have been expected to pick up throughout the years of his grudging pardctpation In formal schooling.
With one excepcion, there Is relatively llWe variabiiiry among the scaled scores he obtalns on the performance subtests. Four out of five fall at or above the mid-average range. Of Interest Is the fact that he obtains a signtficantly lower score on the relatively complex, multi- step Digtt Symbol subtest, whlch requires psychomotor speed, cognitive ffexibiliry, efficient visual scanning, and new if relatively simple nonverbal associate. leaming. Although any number of different variables can potentially contribute to a test subjecc's relatively poor performance on this subtest, It ls at least worth noting that lndividuals found to have one or another kind of underlying leaming disability, orsome variery of brain impairment, frequentiy obtaln their lowest performance score on this pan3cularsubtest.
So that his scaled scores on the WAIS-R subtests will remain available for future comparisQn, theyare lncluded below. Readers should necogniie that the scores range. from 1-19, wtth 1. 10 being about the mld-average, uncorrected for a¢e.
Verbal Tesu Performance Tests Scaled Score Scaled Score Information 13 Picture Completion 14 } Digit Span 12 Picture Arrangement 11 Vocabulary 12 Block Des)gn 12 Arithmetic 11 Object Assembly 12 Cbmprehension 8 D[gtt Symbol 8 Similarities 13
J With the excepdon of the somewhat lowered score he obtains on the Arithmetic subtest, his scores on the Wide Range Achievement Test-Third Revision (WRAT-3), which allow for an estimate of actual achtevement levels In three areas of core academlc skill, are about what one might have predicted based on his 1Q estimates. His scores are as follows:
Volume IX pg 142 1
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NEUROPSYCHOLOGICAL EVALUATION ( Cont'd) JOHN 1. FAUTENBERRY
Standard Grade Score Percentlle Eciulvalen Reading (Word Recognition) 114 83 Post High School Spelling 110 75 Post High School Arithmetic 90 25 Elghth Grade
I I have reviewed these findings from two tests whkh esdmate, broadly speaking, an IndMdual's Intellectual potential (WAIS-R) and that same indh+idual's achievement levels In three areas of core academic sldit (WRAT-3) because they provide the necessary backdrop I for any consideration of 'findings obtained from a wide variety of other assessment instruments which tap a range of cognh9ve abllitles that are subserved by the brain. The point requiring emphasis here Is that Intellectual performance at the level suggested by those findings that have been summarized above allows for the prediction of cenaln levels of perfonnance on the other assessment procedures that are Included as part of the more comprehensive neuropsychological battery.
It Is my opinion, offered wrch reasonable psychological certalnty, that Mr. Fautenbeny has at least mild functional brain Impairment, a condition which has sometlmes been referred to ' " asiorgan " chy. I n et hparagrap h wht sch 9-1ow,. I I will summarize the body of neuropsychological test data which pennlts that inference. The brain Impalrment Is most evident In his performance on tasks that are primarily subserved by the right cerebral hemisphere. However, at the same tlme there are Indicators suggesdng impalrment In abilities associated with the left hemisphere as well.
Despite Mr. Fautenberry's rather edgy and d[standng Interpersonal style, stiil he Impressed me as motivated to ghre his best efforc in fornul testing. He appeared to view each test as a challenge to his metrle, and h was clear throughout that he wanted to do well. He scored a perfect 15/ 15. on Rey's 15-Item Visual Memory Test, which is a brief screening procedure often used as one means of gauging a test subject's motivaUon to glve his/her optimum performance. Such a score Is suggesdve of good motivation.
Certain of bis test scores stand out In pardcularty bold rellef because of his generally adequate performance on a variety of other test instruments. His bllateral grip strength Is more than adequate, and his motor speed falls within the normal range bilateraiiy. On the Sensory- Perceptual Examinatlon, he does generally well, although whh a couple of exceptlons. He has four right-slde auditory suppressions under condidons of bilateral sttmufation; and he demonstrates tremendous difficulty on the Fingertip Number Wrlting portion of the Sensory- Perceptual Examination, making 14 righc slde en ors and nearly as many on the left side.
Volume IX pg 143 -13-
NEUROPSYCHOLOGICAL EVALUATION (Cont'd) JOHN J. FAUTENBERRY
These findings must at least raise questions, respeccively, about posslble damage to the left temporal lobe, and bilateral damage to the padetal area. This many errors on Fingertip Number Wridng fs most unusual In a test subject who appears mottvated to give his best performance. Although I would not wish to overinterpret ii since a flnding of this soit could conceivably be related to some variety of btlaterai peripherai nerve damage, when considered In light of multiple other indicators that are suggestive of cerebral Impairment, It obviously takes on greater slgniflcance.
On a variety of attendonal tasks which Vary from mild to moderate difficulty, his performance Is somewhat variable. He does well, for example, on the Dlgit Span subtest of the WAIS-R, which requires rote repetltion of dlglt sequences - both forward and backward -- that are presented orally. He falters, however, on both the Seashore Rhythm Test and the Speech Sounds Perception Test, scoring within Reitan's moderately impaired range on the first of these two tesa, within Reltan's mlidly Impaired range on the second one. This pattem of flndings In a well-mothrated test subject of average to high average )nteiligence Is strongly suggestive of miid to moderate left hemisphere Impairment.
A couple of rather dramatic flndings point strongiy toward right hemisphere impalrment as welL Although for the most pan: his performance on the Aphasla Screening Test Is adequate, there are clear slgns of construcdonal dysprazia In his attempt to accurately reproduce the drawing of a key (in particular, a complete reversal of one set of notthes). Such a finding is, again, strongly associated with at least some degree of right hemisphere lmpairrnent.
A comparison of performance across three trials on the Tactual Perfotmance Test again I allows •for a strong Inference of right hemisphere Impairment. On Trtal #1, whh his dominant right hand, he requires siighty less than three minutes, which falls weli within the average range. On Trtai #2, however, where one expects to see some Improvement based on Incidental teaming, he takes slgnlffcantly.lonrer to complete the same task (4'12" vs. 2'59" on Trial # 1). Then, on Trial #3, when both hands are used together, he again takes longer than he had taken on Trial # i, when he was totally unfamillar with the test apparatus and using his right hand only. A reasonable Inference, based on this patcem of flndings, Is that his left hand (which Is subserved by the rlght cerebral hemisphere) actually te res .j whh the level of perfomiaace of which he Is capable when using only his right hand.
Another striking ftnding Is the 76 errors he makes on the Booklet Category Test, which requires abstract nonverbal concept fomnatlon, cognlttve flexibility, inddental nonverbal J memory, and the abiliry to Incorporate ongoing pen`ormance-based feedback Into an effective problem-solving approach. An extensive body of research attests to this Instrument as one of the most sensitive Indicators of brain Impairment among a!1 neuropsychological assessment procedures.
Volume IX pg 144 -14
NEUROPSYCHOLOGICAL EVALUATION (Cant'd) JOHN J. FAUTENBERRY j Throughout his pardclpatlon on this test, he demonstrates a pattem of Impulshdty and S perseveradon. Patttcularly In an Individual of Mr. Fautenbeny's obvious intelligence, his score wlthln Reltan's "seriously impaired" range on this particular test Is a very strUdng finding, one which would In all iikeiihood be.assoclated with poor planning skilis, deficits In his ablliry to use new ieaming In order to alter his approach to novel problems, poor abstracting abtifiri es, and a tendency to get stuck In certaaln modes of responding, even Iong j after they have proven to be unproducdve. Although he persisted wh'h the test despite his difficuites, at tlmes he became quite impatlent whfi his pattem of errors; his manner at those dmes suggesting a rather limked capachy for tolerating fnisnadon.
9J Also worth nodng are the findings obtained on the Wechsler Memory Scale-Revised. His Verbal Memory Index of 101 and his AttentkWConcentradon Index of 104 fail at around the midpoint of the average range. Although snghdy lower than I might have predicted, these scores are at least consistent with IQ estimates derived from Dr. Pearson's admin'tstradon of the Wechsler Adult InteIIlgence Scale-Revised (WAIS-R). As noted previously, his pardal color blindness prevented him from completing aU portlons of this particular test. Partlcularly str3king among findings from the sections he did complete, however, were those obtalned on the verbal paired assodates aubtesr. He demonstrated a very marked perseverative tendency here, often repeattng errors muldple times before incorporadng Into his response set the [fairty simple and stralghtforward] Infomtiadon that he needed to leam. in order to correct them. This pattem of perseveradon Is certainly consistent with hls striking defichs on the Booklet Category Test.
.3 Sununary and Forensic Opinion John Joseph Fautenberry Is a 32-year-old, right handed, single, Caucasian male with nine years of formal educadon (and a GED) who fs currently housed on Ohio's death row at the Mansfield Conecdonal Insdtution. He was sentenced to death In 1992 by a three-judge panel In Hamilton County after having previously plead no contest to a charge of aggravated I murder with specifications. The referral request from Mr. Fautenbeny's appellate counsel was for a comprehensive neuropsychological assessment, the findings from this assessmentto be relied upon, along with other relevant background information, In the formulation of an opinion about whether'Mr. Fautenbeny may have some degree of funcdonal brain lmpairment. j It Is my opinion, offered with reasonable psychological certainty, that Mr. Fautenberry Is brain Impaired. Typically, functional impairment Is classified as mild, moderate, or severe. In this case, I would describe the Impairment of brain function as reladveiy mild - although by no means insignificant. "Mild° when used as a descripdve adjective In this context only I
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NEUROPSYCHOLOGICAL EVALUATION (Cont'd) JOHH J. FAUTENBERRY
serves to difterendate one classification of brain Injury from other classificadons where the assodated deficits might be even more dramadcally apparent.
The point I wish to emphasize for present purposes Is that even a relatively miid degree of funcdonal brain impaimient can very sigoiBcantiy affect Important aspects of an IndhAduat's day-to-day functioning. It can, for example, contribute to changes In the lndivldual's overal[ personalky functfoning. There is evidence In the h[storical lnfon7wdon which has been J provided for my review that In fact Mr. Fautenberry may have begun to show signlBcant personality changes fol(owing an Inddent tn elementary school where he was knocked unconsdous by a swing.
Brain impairment of the sort that is clearly apparent In Mr. Fautenbeny's case can also cause serious probienu In such areas of day-to•day functioning as Impulse control; moduladon of affect; planning; problem-solv(ng; and the capachy to tolerate fntstradon. Brain-related deficits In such domains as Impulse control, emodonal ovenvacdviry, and frustradon toierance can, of course, be further exacerbated when there are co-edsdng problems whti drug and/or alcohol abuse. Both were present In Mr. Fautenberry's case, and the background informadon which has been provided for my review strongly suggests that Mr. Fautenberry's problem wFth alcohol abuse (most likely alcohol dependence) was slgnificantly exacerbated following his mother's death in the mid-1980's.
I found Mr. Fautenbeny to be an Intense, edgy, and Interpersonally distancing Indhridual. At the same time, however, he was cooperadve whh all aspects of my assessment, and he certainly Impressed me as motivated to give his best effort. He appears to be an lndividual of average-high average Intelligence, and that relativey high level of baseline Intellectual abilIty serves as the Important backdrop against which his deficient performance on selected neuropsychological assessment procedures stands out In pardcularly bold reltef. Although there Is evidence of bilateral lmpaimsent, his overall pattem of defidts suggests his right hemtsphere as the primary locus of his underlying brain damage.
It Is Impossibie. to state with certainry from this vantage point the precise dme when he might have sustained the iinjury or Injuries that have resuked In hls current lmpairment. However, the history Includes any number of different Incidents where Mr. Fautenberry sustained blows to the head. It may very weli. be that his current defichs reflect the combined Influence of more than one episode of traumadc braln Injury.
Of course none of this Informadon was available to the three-judge panel at the dme when they were considering their various sentencing opdons. In fact, they were speclfically lead to believe because of Input provided to them by several different mental health professionals that Mr. Fautenberry was Dot brain-tmpaired, even though there existed at the dme no data sufftcient to support such an Inference.
Volume IX pg, 146 -16-
NEUROPSYCHOLOGICAL EVALUATION (Cont'd) JOHN j. FAUTENBERRY
It Is my professfonal optnion, offered with reasonable prythologicai certalnty, that the data generated through the current neuropsychoiogical evaluation would have been considered highly relevant by the three•Judge panel that sentenced Mr. Fautenberry. Most courts have found that braln hnpalnnent of the son which exists here h approprfatety categorized under the Iegal heading of "inentat defea," and the presence of a mental defect is, of course, a crudal element consdtutfng one of the mltTgating factors specifically Identlfied In the Ohio capital sentenc(ng statute.
Jeffrey L. Smalldon, Ph.D.
JLS/dh 6/5/96
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Volume IX pg 147 Sharon L. Pearson, Psy.D. & Associates Licerued Psychologis7
328 South Market 1857 Northwest Blvd. Troy, Ohio 45373 Cohnnbus, Ohio 43212 (513) 339-2880 . (614) 468-1986
STATE OF OHIO Case No. B912206
FRANKLIN COUNTY State of Ohio v. John Joseph Fautenberry
AFFIDAVIT OF SHARON L. PEARSON. Psy.D.
.I, Sharon L. Pearson, Psy.D., being first swom upon my oath, do depose and state the following:
I am a psychologist &eensed to practice in the State of Ohio. My professional practice is located at 1857 North West Blvd., Columbus, Ohio 43212. I received my Psy.D. from Wright State University in 1987, and I have been licensed (No. 4101) since 1988. 1 would estimate that since receiving my Psy.D., I bave conducted clinical and forensic evaluations of somewhat in excess of 500 individuals. J 2. One area of clinical practice in which I have sought special training, knowledge, and skill is in forensic clinical. Part of my practice is to evaluate individuals who have been indicted or convicted on capital murder charges.
3. 1 was retained in January of 1996 by the Office of the Ohio Public Defender regarding Mr. John Joseph Fautenbeny, who is currently housed on death row at the Mansfield Correctional Institution. In 1992, Mr. Fautenberry was sentenced to death by a three-judge panel after baving been found guilty of aggravated murder with specifications. The specific request from the Public Defender's Office was that I conduct a comprehensive psychological evaluation of their client, and that I consider whether data obtained from that evaluation would have been relevant, had it been available, at the time of W. Fautenbeny's sentencing in 1992.
^aEXHIBIT 4. Attached, and marked as Exhibit A, is the psychological evaluation that I have prepared in response to the above-descn'bed request.
Sworn to and subscn'bed before me, a Notary Public, this _ day of July, 1996.
+T.n.yr►t.rr• Lr54ACo
RtGttABO )MM^,"_ s^bM^tne^Atlaw►
17
Volnnte IX pg 149 Sharon L. Pearson, Psy.D. & Associates LicensedPaychologist .
328 South Market 1857 Northwest Blvd. Troy, Ohio 45373 Cohunbus, Ohio 43212 { (513) 339-2880 (614) 468-1986
I Name: John J. Fautenberry I Date of Birth: 7/4/63 Date of Evaluation: 2/29/96
Evatuated Bv: Sharon L. Pearson, Psy.D.
Tests Administered: Bender Motor Gestalt Test, Minnesota Multiphasic Personality Inventory- 2, Wechsler Adult Intelligence Scale-Revised, Trailmaking A & B, House-Tree-Person, Clinical Interviews.
For purposes of this evaluation, I have reviewed the following:
Interviews conducted by Shirley Leahy, ACSW, LISW of client, family members in 1991, educational records from Connecticut, California, Washington, Hawau; interview notes and chronological timeline prepared by mitigation specialists at the Office of the Ohio Pubfic Defender; phone conversations with Pam Swanson, Mitigation Specialist with the Office of the Ohio Public Defender; brief phone conversation with Jeffrey SmaIldon, Ph.D.; records from Hamilton County Sheriffs Department and the Ohio Department of Rehabilitation and Corrections; materials from the Portland, Oregon Police Bureau; records from Mr. Fautenberry's service in the United States Navy; assorted medical records; reports prepared by mental health professionals following Mr. Fautenberry's arrest in 1991 in Ohio including a competency to stand trial evaluation conducted by William S. Walters, PhD. (October, 1991); a aiminal responsibility evaluation conducted by Dr. Walters (October, 1991), two competency to stand trial evaluations prepared by Nancy Schmidtgoessling, Ph.D. (November, 1991 and March, 1992), a criminal responsibility assessment prepared by Dr. Schmidtgoessling (November, 1991), a September, 1992 niitigation report prepared by Dr. Schmidtgoessling, a competency to stand trial 'and criminal responsibility assessment prepared by Emmett G. Cooper, M.D. (November, 1992); two assessments from Salah M. Samy, M.D. at Dayton Mental Health Center (June, 1992) designed to address competency to stand trial; psychosocial history prepared at Dayton Forensic Unit (June, 1992); report of a neuropsychological evaluation done by Jeffrey Smalldon, Ph.D. (May, 1996); texts relating to causation of criminal behavior, central nervous system functioning.
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Volume IX pg 150' Reasons for Referral:
Mr. Fautenbeny was referred for psychological evaluation by the Office of the Ohio Public Defender Commission. He is corrently engaged in an appeal process for the death sentence secondary to being found guilty of aggravated murder with death penalty specifications.
Background Information:
Mr. Fautenberry is a 32-year-old Caucasian male who wrrenfly resides on Death Row at the Mansfield Correctional Fnstitution. He was born in New London, Connecticut, later moved to Norwich, Connecticut where he lived until age 14 when the family moved to Valleho, Califomia. The family stayed there until Mr. Fautenberry was 151/2 and then moved to Hawaii and lived there until he was 17. He then joined the Navy, was stationed in Japan and discharged at age 19. He came back to Hawaii for a very sbort period of time and then moved back to Connecticut and lived with his parents. They lacked him out and he traveled around the country until 1986 then moved to Oregon where he stayed until November of 1990.
Family of Orlsin:
Mr. John Fautenberry was bom to Joan and John Yuchniuk who separated when Mr. Fautenberry was 3 or 4. Mr. Fautenberry saw his father on weekends occasionalty for the first few months following the separation, Mr. Yuchniuk then moved to Oregon and had no contact and did not support his son financially. Mr. Yuehniuk is described as cold, distant, rigid and devoid of feelings. He has a history of many failed marriages, lack of ability to take responsibiGty for his own actions, inconsistent work history and a history of trouble with the law. He reportedly faked illness to receive worker's compensation and defrauded customers. There are reports of him not caring about W. Fautenbeny or his three children by a later marriage, being physically and verbally abusive to both Mr. Fautenberry and his mother Joan. Mr. Fautenberry located his biological father in 1986 and went to meet him, finding him to be cruel, irresponsible I and a disappointment. Mr. Fautenberry has few early memories of his father - he remembers seeing his mother stabbed in the leg by him (although this may have been done by Don Langdon, his step-father) and he recalls his father smasbing a twinkie into his mother's new hairdo. He remembers his father buying him a bicycle only to then give it to his new girlfriend's daughter.
After separating from Mr. Fautenberry's father, Joan had a very short lived affair with Robert Fautenberry. The affair produced John Fautenberry's half-sister Kris who is 3 years younger than he. Joan then began to see Donald Langdon who, by all reports, was a cruel, abusive, unpredictable, and perverse man who beat his wife and children almost daily. The cbildren could not figure out how to avoid the beatings and Mr. Langdon beat John Fautenbeny much more severely than he did Ksis, flying into blind rages. Despite this, John Fautenberry reports appreciation for Mr. Langdon because he coached him in football (although he drove Mr. Fautenberry relentlessly and unremittingly). Donald Langdon began having an affair with a woman upstairs, was drinking heavily and kept the bome env'uonment in an uproar. W. Fautenberry remembers thinking of an imaginary hammer and nails with which he would on a nightly basis, pretend to nail down his sister's cover and then his to protect them from W.
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Volume IX pg 151 Langdon's 'vrational and abusive behavior. A long time family friend recalls W. Langdon beating Mr. Fautenberry's head against the watl repeatedly on more than one occasion. W. Fautenbeny remembers W. Langdon keeping pornographic materials around the house. For a period of time, the relationship between Joan and Donald Langdon was off and on and they finally broke for good wben Mr. Fautenberry was in the 4th or 5th grade. Both Mr. Fautenbeny and his sister Rris report that the brief time between their mother's relationship with Donald Langdon and Robert Fautenberry was the only time they remember feeling safe as cbildren.
Robert Fautenberry appeared in the family's life relatively soon after Joan and Donald's break up. John Fautenberry felt resistant to this relationship from the outset. Robert is descn'bed as cold and rigid, a career Navy man. He reportedly fowses only on the negative, looks only I outside of himself for the answers to problems. Prior to marrying Joan, Robert portrayed hitnself as kind and caring, but changed soon after the marriage. Robert acted very superior and would frequently make the children respond "nobody" to his question of "Who do you think you are?". Robert would alternate between drinking binges and religiosity and there was much arguing between he and Joan. Robert wanted to adopt Kris who was clearly the favored cbild; Joan insisted that he adopt John Fautenberry as well. Mr. Fautenberry reports having gone along with it in hopes that his mother would be happy, although he was never glad about it. Robert is reported to have frequently called John. Fautenbeny a"fagot" and told him he would never amount to anything.
Joan Gargano Yuchniuk Langdon Fautenberry was a woman who exhibited dependent qualities and bad extremely poor judgment where men were concerned. She had a long - standing history of depression for which she took antidepressant medication, electroconvulsive shock treatment and was psychiatricalty hospitalized at least twice. During her relationship with Donald Langdon, she was sick regularly, in bed with migraine headacbes on a weekly basis. She reportedly had mood swings and was aUergic to red meat and red food coloring which would cause her to become very angry and tense. Robert did take Joan for treatment so that she was in better, condition when married to him than when with Donald. Overall, she was poorly equipped I to protect her children from her abusive husbands or to be there for them in an appropriate, maternal fashion. In addition to allowing her children to be abused, she role modeled dependent behavior, poor self-esteem and victimization by allowing herself to be abused repeatedly. In January of 1985 she died of breast cancer wbile still married to Robert Fautenbeny. W. Fautenberry has a tendency to idealize her, to deny her short comings. Her death was vary difficult for him.
By the 6th grade, John Fautenberry had started beating up his sister, perceiving her to be treated much more favorably than he. His school performance was never good despite adequate intelligence and he failed the 7th grade. He was told to work hard the next year which he did'and was passed to the 8th grade_ He took and passed an entrance examination for a vocational program he very much wanted to attend. However, Robert moved the family to California when John Fautenberry was ready to start the 9th grade, refusing to allow John to stay behind with his maternal grandmother to attend the vocational school. John was devastated as school was important to him at that time, he was playing football and involved in extra curricular activities. When the family got to Califoniia, John Fautenberry recalls shutting down emotionally and began
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Volume IX pg 152 stealing, breaking windows, drinking, doing drugs, avoiding involvement with juvenile authorities. He had to repeat the 9th grade because of truancy, getting into fights. There was family counseling at this time which proved ineffective. John Fautenberry was sent to live with Robert's parents in Washington, an experience he descnbed as positive. He perceived his step- grandmother to be kind and supportive, his step-grandfather as hard to get along with and hyper- refigious. He aoted out only by skipping school wbile with them and reports intending to kill himself with a bow and arrow he was making until his grandparents caught him.. He then returned to Joan and Robert's home. I The family moved to Hawaii when John Fautenberry was 16 which caused John fear and sadness as he again was losing friends. He felt all he had to look forward to was drugs and he became heavily involved and began to drink alcohol, getting high on weekends and during the week. At 17, John Fautenbeny joined the Navy at his step-father's encouragement. He oalls the time he spent in the military as "a drunken adventure." He had thought Robert might look up to him if he did well, but he began to have problems as early as boot camp and was placed in a strenuous °motivational" program which he reports liking because of its structure, predictability and difficulty. He began to use LSD in the Navy and used it heavily during one 4 week period. Eventually assigned to Japan, he had hoped to like it but the first person he met asked him to do drugs and it went down hill from there with much drinking and drug use. Although he received an Honorable Discharge from the Navy, he had difficulty adjusting to military life. After the Navy, John Fautenberry was intermittently in and out of his family's home depending upon whether he was using drugs and alcohol and unemployed or employed and staying clean.
.J BetweCn 1982 and 1986, John Fautenberry bummed around the country, hitchhiking, boarding trains, eating at missions and donating blood for money. While in Georgia, he met a man who was Icind to him, stole his car in the middle of the night and drove to Alabama where he was caught stealing gas. He spent 45 days in jail there and was then extradited back to Georgia where he was in jai15 days, got 3 years unsupervised probation. From there, he went to El Paso, Texas, back to Florida, to Oregon, Califomia and Washington, Reno, Denver, then Ft. Worth where he worked for several months at a temporary job he liked. He was arrested for marijuana possession while in Ft. Worth.
Several months before his mother's deatb, John Fautenbeny was working in a logging camp in Oregon and was fired when be had conflict with the owner's nephew. He reports that he spent the night under a bridge where he got dnmk with a stranger and got into a fight with him. He had punched the man in the nose but stabbed him in the throat to be certain be was dead. He reports intending to kill his victim - he was aagry for being fired and he was drunk. He reported it felt "like a release because he had so much anger in him." He thought later that his mother may have died as punishment because he killed the man.
When John Fautenberry got word that his mother was seriously ill, he traveled to Rhode Island to be with her. While she initially recognized him, she soon did not. Her death was very traumatic for John and he reports feeling sony that he bad not been "a better kid for his mother." Additionally, his mother's death became an opportunity for further conflict between Robert and John Fautenberry. John left and began to drink heavily, buying bottles of hard Gquor, going to a
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Volume IX pg 153 field or other isolated place, getting drunk and screaming and yelling. During one of these episodes, he reports stabbing himself repeatedly in the chest. He stiU bears the scars. He reports having the sense that "his debt was now paid in full, that God got bis mom because he killed that I man." His drinking increased to the point where he was drinking a bottle of rum per night.
When John Fautenberry's maternal grandmother decided to move to the Cincinnati area in 1985, be came with her. He became involved with his boss' wife and they drank beavt7y together. During a drunken fight, he wrapped a sheet around her neck and tried to kill her. She left, police came and arrested bim for assault and carrying a concealed weapon. He spent 3 months in jail and received 3 years probation.
John Fautenberry then decided to try to contact his biological father, John Yuchnitrk, was successfitl and went to Oregon to meet him. His father and his wife, Olivia, were living apart and Mr. Fautenberry stayed at bis father's for only a short time before moving to his father's wife's home. He found his father to be nonfunctional, cruel and manipulative. When his father and step- mother divorced in 1987, Mr. Fautenbeny began living with her as lovers. She was 37, he was 23. Although Mr. Fautenberry had experieaced a number of short, dysfunctional relationships, the relationship with Olivia (father's ex-wife) was the longest he had ever had. W. Fautenberny I perceives her to be a good friend. He worked first with the owner of the apartments where he and Olivia lived, then in a gas station, then went to school for driving trucks. He then drove trucks from 1987-90. This time period is seen as the happiest of his life, bowever he continued to use drugs and alcohol during this time becoming heavily involved in cocaine in 1989 for several months. In early 1990 while doing cross country truck driving, he became involved with his cousin's wife in Connecticut and broke up with Olivia, but the relationship with bis cousin's wife was short Gved.
W. Fautenberry met his second victim at a truck stop in Oregon. The two drank all day, then went shooting where Mr. Fautenberry sbot the other man. Mr. Fautenberry stated that he was drunk, angry at his girlfriend and angry at the way his life was going. He then returned to Ohio thtn on to Rhode Island. On the way back from Rhode Island, he killed again in New 1. Jersey, again in Ohio, then a woman in Oregon, then to Alaska where he killed again - 5 killings in 5 months. In atl but one of the murders, Mr. Fautenberry had been drinking quite heavily. The other victim was a man who approached him with money in return for homosexual favors.
When in the second grade, John Fautenberry reports being sexuaily accosted by a boy older than himself who trapped him in a gas station restroona, forced him to lie on the floor and laid on top of him. John Fautenberry also remembers Donald Langdon being into pomography and that a neigbbor woman played inappropriately with bim in the sxzmming pool. The neighbor then told John's mother that be initiated the inapproriate contact. John Fautenberry also reported ahvays feeling rejected as a child, he was embarrassed about wearing glasses, by his last name (Yuchniuk), and that his biological father bad left. He remembers being jealous of other kids because they had a father. Despite these negative seff perceptions, he also believes that as a boy he was a "pretty good kid," that he did not get into trouble and did all right in early schooling. He believes that early on he received good feedback from neighbors, friends of the family, relatives, grandmother and mother. He reports never getting good feedback from men.
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Volume IX pg 154. Substance Abuse Historq:
John Fautenbeny has a significant history of addiction activity. At the age of 14, he began to use marijuana and continued to use it from then on in varying amounts. At the time of his arrest, be had cut down to twice a month but had used it most heavily as an adolescent and wbiie in the Navy wbere he would smoke from 4-20 joints per day. He reports that marijuana made him mellow, lazy, made things slow down. In addition to marijuana, Mr. Fautenberry reports having used LSD extensively, cocaine, speed, downers. He reports using cocaine during the period of I time that the murders oecurred.
John Fautenbeny's alcohol abuse begaa around age 14. He drank beavity off and on found that hard liquor gave him stomach problems to the point of causing bleeding. He describes experiencing blackouts, especially when using hard liquar. People close to John Fautenberry report that he underwent a signi5cant personatity change when he drank - from someone pleasant I and fun to someone aggessive, raging, "a monster." Numerous others have confronted his drinking across time and he has been in a lot of trouble because of it. By self report, Mr. Fautenberry experienced an opposite effect from alcohol than he did from marijuana. He stated that when he drank, it was a "given that he would get into a fight;' "drinlong made him feel invincible." If be mixed alcohol and marijuana, he would go looking for a fight - even with his friends..
Relationship History:
John Fautenbeny's first emotional attachment was with a woman in Florida who was 5-6 years his senior. He had several short term relationships with women, the longest and happiest one was with Olivia Hemdon, his father's ex-wife. He wishes he could be married and have children.
I Mr. Fautenberry believes he and his half-sister were close until Robert joined the family and began to show favodtism to her. Things continued to decline after they moved to California and disintegrated even fureher when his sister entered the military. He later made some attempt to repair their estrangement but was only minimally successfbl. John Fautenberry descnbes no ambivalence about his relationship with his grandmother, that she was "a friend," " a shoulder to cry on," and "always loved him." As a child, he regarded his mother's friend Louise and her husband Ken as people be could turn to and a place to escape Don Langdon's abuse.
Historv of Head Trauma:
i Mr. Fautenberry has a significant history of head trauma. At the age of 7-8, he was hit by a swing, following which he lost consciousness for a period of hours. Family and friends report J personality and behavior change following this injury. Mr. Fautenbeny also began to experience headaches at about this time period and continues to have them today. In the Navy, W. Fautenberry suffered another head injury when his head became lodged between the dock and a boat for 30-40 minutes. This injury also resulted in loss of consciousness. Since the incident wlth
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Volume IX pg 155. the swing, Mr. Fautenberry had experienced a constant ringing in his ears, the incident with the ship made it worse. The decibel level of the ringing reportedly increases with his headaches and with the ingestion of hard liquor or when extremely angry, the headache pain increases significantly. At approximately the same time as be was hit with the swing, Mr. Fautenbeny describes beginning to have what he calls "fits or seizures" which he reports have continued into adulthood. Wbile not grand mal in nature, he reports being unable to function for periods of time, shaldng, muscle tension and loss of recall for the time period involved. He reports faIIing off his bicycle as a chitd during these episodes and needing to pull over to the side of the road when in a truck as an adult. He can recafl having these episodes at school, at home and once wben he had climbed into the Lazy Susan cupboard.
There is reportage consistent with the probability that W. Fautenberry had an undiagnosed Attention Deflcit/Hyperactivity Disorder as a child. He was reportedly hyperactive and his mother medicated him with cough syrup to calm him down. VJhde difficuh to determine, it is quite possible that his excessive cbemieal abuse has lead to some brain deterioration as well.
Further, a long-time family friend recalls watching Don Langdon beat M. Pautenberry's head against the wall when he became rageful. FinaAy, Mr. Fautenbeny has been in numerous physical fights where it is possible he may have suffered fnrther bead trauma. He fell down a flight of stairs prior to school age and remembers being hit in the head with a frying pan by his mother while in his teens. In 1980, W. Fautenberry had a surfing accident where he hit his bead on the beach and lost consciousness.
Educational History:
W. Fautenberry's early grade school reports show adequate seholastic achievement although changes coincide with significant family events. By junior high, his grades were dropping significantly and by 9th grade he was attaining Cs, . Ds and Fs despite adequate intellectual ability. In the 10th grade, he withdrew from scbool altogether. After he retumed I fromthe Navy, Mr. Fautenberry obtained his GED and later attended truck driving school.
Mental Health:
Mr. Fautenberry reports the only mental health treatment he ever received was when the family received counseling while in Califomia. He reports recurrent nightmares, psychic numbing, exaggerated startle, alcohol induced blackouts. He exhibits considerable denial regarding some areas of his childhood, has a significant history of depression and suicide attempts, both as a adolescent and an adult. He denies auditory hallucinations, has no history of oddities of speech or thought disorder but reports continual ringing in his ears. He reports what sound like dissociative states and possible panic attacks since chitdhood. He denies ever experiencing bedwetting or soiiing. Those who have know him describe him as having difficulty verbalizing his emotions or J getting emotionally close with others.
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Volume IX pg 156 Physical Health:
As a four year old, Mr. Fautenbeny reports being treated for an ulcer and has continued to experience stomach problems up to the present time. In addition to the previously mentioned trauma, Mr. Fautenbetry received an injury to his heel playing football while a 88h grader. He later wore a brace to correct the damage and the leg remains shorter today. At age 6 he had a drainage tube placed in his ear. As a teeaager he undetwent an appendectomy. Today, he experiences frequent headaehes and has numerous airbome aUergies. He reports that, on occasion, he bas trouble maintaining his balance and sometimes stuntbles fbr no reason. He also has pain and numbness in his shoulders.
Comments Reaardin¢ Trial Level Psvcholo¢ical Evaiuation: I In examining the report by Emmett Cooper, M.D., it is unclear what instruments were I used, if any, to determine Mr. Fautenberry's level of intellectual functioning or level of cognitive impairment. He states that W. Fautenberry's cognitive fiutctions were intact but it is impossible to ascertain how he reached that conclusion. Further, in general, it is impossible to determine how Dr. Cooper reached his opinions regarding W. Fautenbetry's competency to stand trial or his eriminal responsibihty. It is standard practice (dictated by Ohio Statute) that an examiner prepare a separate document to address each question. It is also necessary to include the facts upon wlrich conclusions are based in adequate enough detail for the reader to understand how they were reached, but Dr. Cooper does not do this. He appears to have used no testing instruments nor gathered any objective data.
Upon exanrination of reports by Dr. William Walters and Dr. Salah Samy, it does not appear that either of them used any psychological measures to evaluate W. Fautenberry's cognitive or emotional makeup, both rendered opinions based on interview data thus giving incomplete description of Mr. Fautenberry.
I At trial, Trial Mttigation Specialist Susan Shorr, Ph.D. was hired to assist by Mr. Fautenberry's attomeys, however they then permitted her to work in a very controIIed, minimal, limited manner. The amount of material secured by the mitigation team at the Ohio Public ' Defender Coaunission could have been avaihtble at time of trial, and would have been extremely useful to Mr. Fautenberry in the mitigation portion of his trial bad Dr. Shorr been permitted to perform her role. This would have included, but not be limited to, discovery about the ciient's significant history of head trauma.
Subsequently, only Dr. Nancy Schmidtgoessling was asked to prepare any report to be utilized in the sentencing of W. Fautenberry. In her mitigation report, she states that "there were no indications that W. Fautenberry was suffering from any organic impairment at the time of' her evaluation. Yet, she does not state how she arrived at that conclusion, nor did she perform any I testing at that time which would lead to such a conclusion.
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Volume IX pg 157 In further evaluating Dr. Schmidtgoessling's reports, several issues are important to mention. She describes scores from the Wechsler Adult Intelligence Scale-Revised as being valid. Although Dr. Schmidtgoessling has not answered requests from this office to send raw data from her testing, it will be assumed that she obtained a similar pattem of inter- and intra-scale scatter that this examiner obtained when administering the same test to W. Fautenbetry. These incidences of scatter would serve as a red flag as to the posm'bility of some neurological impairment and should have prompted more in-depth investigation. Additionally, Dr. Schmidtgoessling administered a Minnesota Multiphasic Personality Inventory which she states "was unable to be interpreted because it is a highly exaggerated profile. Mr. Fautenberry overwhehningly endorsed items of severe pathology." The Mmnesota Muitiphasic Personality Inventory insuvment includes a means of furtltering the examiner's knowledge about the client I oalled Critieal Items. The Critical Items have been found to have possible significance in analyzing a client's problem and serve as sources of hypotheses for Snther investigation as well as offering explanation for a test which upon superficial examination appears invalid. Although the' I MMPI-Z that this examiner administered also appeared to be invalid, further questioning of the client based on the critical items yielded signi8cant information which will be discussed in more depth later. The relevant point is that Dr. Schmidtgoessling failed to utilize standard i psychological procedures which would have yielded unformative data leading to a more thorough evaluation.
It is also important to note that neither Dr. Schmidtgoessting or other evaluators mention or utilize data from Dayton Mental Heahh Center's evaluation of Mr. Fautenberry which describes his history of head trauma and even makes explicit the correlation between behavior and personality change and his being hit in the head as a youngster. This information should have served as another red flag regarding W. Fautenberry's neurological functioning.
While it is true that Mr. Fautenberry's trial attomeys were encouraged to secure a neuropsychological examination, they failed to apprise him of the unportance of it, fai[ed to request.proper handling of the testing situation by the correctional facility and Mr. Fautenberry I refused to participate. If the importance of the test had been explained, if W. Fautenberry had been handled differently, critical information would have been found. 'IL9 In her trial testimony regarding the prediction of future dangerousness on Mr. Fautenberry's part, Dr. Schmidtgoessling utilizes the often stated psychological prediction that l past dangerousness predicts future dangerousness. Wbile a usefid component for such prediction, it is superficial and incomplete. It would also be essential to include an evaluation of the conditions and situations that surround the aggressive behavior in addition to the individual's characteristics. In reviewing his records from correctional facilities, it appears that Mr. Fautenberry has not proven to be dangerous in an environment which provides predictability and structure that he never before knew, and, in fact, he has been deemed a rather model inmate, attaining and always remaining on Level A, the highest privilege level. These inmates are described as `Yeast aggressive, more responsible, good conduct and willing to work." Without alcohol as a catalyst, he has learned to keep to himself, utilizes appropriate institutional channels, has adjusted well to prison life, and is not a management problem. Although there are several reported instances of acting out behavior wbile he was incarcerated in the county jail, these have
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Volume IX pg 158. been viewed as attention-getting 'strategies rather than dangerous or threatening in the institution's opinion.
All of the above discussion demonstrates that the three-judge panei who tried Mr. Fautenberry received information based on incomplete, superficial and inaccurate expert reportage on the part of the professionals hired to evaluate the accused. Further, it is of note that some of the cGnicians told W. Fautenbeny's attorneys there was no possibifity of neurological damage based only on. superfrcial screening. A. thorough evaluation including a neuropsychological I battery would have yielded different information. - Behavioral Observation:
W. Fautenberry elearly understood the nature and purpose of the evaluation as well as the liroits of confidentiality involved. He was cooperative and alert during the evaluation. He was fully oriented to person, place, date and time. Although he had initiaily requested permission to be able to have frequent smoke and coffee breaks, he ended up taking very few. He was clean and neatly dressed in prison scrubs, his hair had been recently washed. His body posture was relaxed, eye contact was fair and he regularly looked off to his right when asked for some recall. Although W. Fautenbeny's affect was primarily flat, he occasionally smiled spontaneously, verbafized anger or became irritable. Speecb was of normal rate. Ivlr. Fautenberry exhibited no flight of ideas or tangentiality. He presented as having poor insight, as rigid, opinionated and as having Gnrited problem-sohing skills. He denied ever experiencing auditory hatlucinations. At times he would stand up and pace slightly or lean sideways against the wall. He appeared to be motivated to cooperate and truthful in his responses to the best of his abiiity. He described not really knowing what happened to his life, that most of the time he just "blocks stuff out." While initially somewhat restricted, W. Fautenberry began to be more sociable with this examiner, offering to go for coffee, cleaning the toilet and sink in the restroom on the pod since it was a male bathroom and not fit for a woman to use. During testing it was noteworthy that when asked to copy drawings onto a paper, Mr. Fautenberry worked from right to left (instead of the usual left to right).
Mr. Fautenberry reported that he thought about shooting himself when he was on the run but believed he would not go to heaven and felt too frightened. He descn'bed several other times when he considered or attempted suicide without success. When asked bow he spends his time, Mr. Fautenberry stated that he likes to read non-fiction, engage in fantasy to escape his surroundings; he does not have a television or radio. He prides himself on staying out of trouble and not being friends with anyone. He believes he only exists rather than developing or growing in any fashion. He states that he is "trying to find a soul, he does not believe he has one."
Mr. Fautenberry reports difficulty falling and staying asleep, recurrent nightmares, a variable appetite. He describes something he calls "8ts" that he has had since childhood. He describes them as times when he is not in control of his body, would have to pull over to the side of the road when driving until they passed. He believes he "blacks out" and denies recall for the time. He describes having a high pitched whine in his ears all the time. He describes numerous symptoms related to autonomic nervous system stimulation - pacing, increase in breathing rate,
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Volume IX pg 159 beart racing, perspiring feet, stomach cramps, diarrhea - and he reports losing his balance and smmbling at times for no reason. He reports physical weakness, "sometimes it's a strain to hold a cup of coffee." Additionally, he reports pain covering the entire left side of his chest at times. He feels hot yet has "goose bumps" at the same time, breaks out in "beat bumps" on his head. He describes a crawling sensation on arms, shoulders and feet. Although he knows they are not real, he reports at times visualizing people moving outside, cows moving outside of his celi window, seeing his mother saying good-bye. He reports regular headaches (twice a day at times) stating that his head gets "hot, hot, hot inside" and feels Gke he has a tight cap on. He reports that medication does not help but that he has leamed to afford himself some relief by sbaking his head back and forth. Mr. Fautenberry currently receives medication for numerous airborne allergens.
Results of Evaluation:
On the Wechsler Adult Intelligence Scale-Revised, W. Fautenberry obtained a Verbal IQ of 107, a Performance IQ of I10 and a Full Scale IQ of 108 placing him in the Average level of intellectual functioning. There is evidence of some inter- and intra-scale scatter which raise questions regarding the possibility of some neurological deficit. Particular strengths lie in areas which measure acquired factual knowledge and verbal comprehension. This is remarkable in light of Mr. Fautenberry's poor school record and demonstrates an urge on his part to acquire knowledge on his own, most likely througb reading and personal interest. Further strength is found in his ability to separate essential from nonessential visual stimuli and his ability to respond when uncertain. Weaknesses lie in scales measuring Mr. Fautenberry's abiQty to draw on past situations, cause and effect reasoning, judgment in practieal situations. This would affect his J ability to show good judgment in interpersonal and task related situations as well as his ability to learn from his past behavior. Further deficit was found on the sub-scale which looks at flexibility in how learning situations, frustration tolerance and distracfibility. Without these areas of weaknesses, Mr. Fautenberry's IQ would now likely fall in the High Average range of intellectual functioning.
- On the Minnesota Multiphasic Personality Inventory-2, Mr. Fautenberry responded to the questions in an extremely exaggerated manner, endorsing a wide variety of rare symptoms and attitudes, rendering the test invalid. These results may stem from ezcessive symptom checldng 'falsely claiming psycbologieal problem, low reading level, a plea for help or confused state. To obtain further information, Mr. Fautenberry was asked verbally to address each critical item he endorsed. Of the 17 possible items in the Acute Anxiety State section, Mr. Fautenberry endorsed 16. For example, he responded, "I don't sleep, I am restless, have nightmares, I can only sleep if I stay awake for a few days" to the question "I wake up fresh and rested most mornings," or. "I am often short of breath, I can't talk long, my heart starts pounding easily" in response to "I hardly even notice my heart pounding and I am seldom short of breath." In response to "I feel anxiety about something or someone almost all of the time," he reported "whenever he is around people, he is chronically fearful that he is screwing up, he ahvays worried about that when he was around plivia." He states that he "doesn't know how to deal with stuff' in response to °I sometimes feel that I am about to go to pieces." In the times measuring Depressed and Suicidal Ideation, he endorsed 20 of 22 possible items. Mostly reflecting a state of despair, helplessness, hopelessness, poor self concept. Of 5 possible items measuring threatened assault he endorsed 3. However, he
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Volume IX pg 160, specifically reports choosing not to act on bis impulses so as not to "embarrass himself." He endorsed items which reflect physical discomfort unusual Somato-Sensory experiences, diflicnlty concentrating, persecutory feelings, lack of ability to trust.
Conclusion:
In evaluating Mr. Fautenberry's situation, it is critical to address a number of factors. From his history, it is most likely that, as a child, he had an Attention Deficit/[iyperactivity Disorder which went undiagnosed and set him up for the condition of minimal brain dysfunction. It is possible for the effects of this to be compensated for or overridden if the cbild is diagnosed early and raised in a home that is stable and consistent. Mr. Fautenbetty's home environment was I chaotic, unstable, violent and unpredictable. He was raised by a mother who was cluonically unavailable due to her male dependency issues, her pbysica! ailments and her depression and was unable to shield her son from the wrath, violence and disdain of several father figures. Because of his Attention Deficit/Hyperactivity Disorder, W. Fautenbeny was a logical target for abuse from psychologically limited, rigid, domineering; violent and critical stepfathers who were poorly equipped to deal with their own emotional issues, much less appropriately parent a child. W. Fautenberry was unable to learn predictability, cause and effect, delay of gratification and except for a brief time period between stepfathers, lived with chronic fear during his childhood. Chronic fear can readily transform into rage. Further, the coping skills he saw modeled by significant male role models was rage, dominance, violence, behaving in ways that do not consider the needs of others. It is well documented in the psychological literature that aggression and violence from the parent figure,leads to conditions of rage, violence and/or learned belplessness in the child. J Victimization of children and family brutality are correlates of violence and violent critne in adulthood. As a result of his abuse history, abandonment by mother and likely attentional and hyperactive problems, Mr. Fautenberry developed a large degree of rage, and attitude that no matter what he did, he was unable to change things, depression. He was unable to develop skills which allowed him to express his emotions in an appropriate and well-modulated fashion. I As is demonstrated in the results of Mr. Fautenberry's neuropsychologieal evaluation performed by Jeffrey Smalldon, Ph.D., Mr. Fautenberry has significant deficit which affeots personality and behavior as well as other functioning. As was suggested by the results of his Wechsler Adult Intelligence Scale-Revised, Mr. Fautenberry's neuropsyebologioal testing indicates that he has difficulty in areas that affect everyday functioning in the areas of impulse control, modulation of emotion, problem sotving, planning,. and frustration tolerance. The frontal lobe of the brain, when damaged, produces a pattern of personality change which includes argumentativeness, lack of concern for consequences of behavior, loss of social graces, impulsivity, distractibility, shallowness, emotional liabifity, violence and a reduced ability to utilize symbols. This pattern of deficits is known as the Frontal Lobe Syndrome (MacKinnon & Yudofsky, 1986; Mesulam, 1986; Siiver & Yudofsky, 1987). W. Fautenberry presents with all of these symptoms, including his difficulty with the manipulation of symbols on the Digit Symbol subtest of the WAIS-IL In specific frontal lobe deficits, individuals make perseveration errors on tasks despite the fact that they are fully aware of their errors (Milner, 1963). According to Dr. Smalldon's report, W. Fautenberry exhibited similar perseveration of errors on memory tasks. The frontal lobe is also responsible for affecting the output of emotional responses from the
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Volume^ IX pg 161 , temporal area of the brain. With frontal lobe damage, it is common to observe behavior that is emotionally childish, irresponsible, thoughtless toward others and lacking in inln'bitioa It is also common to find that painful stimuli no longer produce emotional reactions. These people also are observed to wander aindessly from job to job, to demonstrate tact.less and impulsive behavior and to display no conoern for the future, to be impatient with advice when it conflicts with desires. Concentration, attention span, initiative, spontaneity and abstract reasoning all suffer. Mr. Fautenberry's history and test results are all consistent with this type of damage.
I Dr. SmaHdon further mentions damage to Mr. Fautenberry's left hemisphere and more specifically to his left temporal region. There is neuropsychological evidence to implicate the limbic regions of this lobe, partieularly the amygdala and hippocampal areas in rage reactions and violent I behavior (Yeudall, 1978; Yeudall et al:, 1981). Studies support the role ofthe amygdala in generating violence and link temporal lobe epilepsy to violence (Monroe, 1970). While it is possible that some of Mr. Fautenberry's behavior and symptomatology is explainable by other means, it seems important to rule out the possibility of a Temporal Lobe Epilepsy. Iiis rather I bestly presentation, his irritability, his numerous somatosensory reports, his amnesia for periods of time that he calls "fits", his violent behaviors are afl consistent with Temporal Lobe Epilepsy. Drinking alcohol, smoking marijuana, lack of sleep, flashing lights, emotional stress, eating irregularly would all be strong triggers for such seizure activity and are consistent with Mr. Fautenberry's lifesryle. An electroencephalogram would confirm or rule out the possibility of this seizure disorder.
A number of studies have demonstrated that having sustained one or more significant head injuries is a factor which predisposes an individual to crime and violence (Lewis, Pincus, Bard, Richardson, Prichep, Feldman, & Yeager, 1988). It is possible that an early neurological deficit such as Attention Deficit/Hyperactivity Disorder predisposes one to have accidents (hyperactivity tends to increase carelessness and risk-taking,and increases difficulty in discerning dangerousness of activities) resulting in head injury and that the combination of the pre-existing neuropsychological deficits and the central nervous system deficits caused by the later head injury combine to predispose someone to crime and violence. A study of adult death row inmates (Lewis et al, 1986) found that virtually aIl of them had a history of severe head injury. Head injury increases an individual's sensitivity to the effects of alcohol, can result in a post- concussional syndrome that includes headaches, irritability, and sensitivity to noise which may predispose one to more quickly lose their temper (Elliott, 1988). This would be exacerbated by compronrised impulse control resulting from neuropsychological deficit. Closed head injuries most frequently result in damage to the frontal lobe and the anterior regions of the temporal lobes (Mattson & Levin, 1990). Damage to these areas in the right henrisphere lead to edginess and anxiety while damage to these areas in the left hemisphere result in anger and hostility (Mattson & Levin, 1990). .
Another probable source of brain injury consistent with Mr. Fautenberry's history is that sustained through child abuse. Shaking can result in shearing of white matter fiber tracts, blows to the head can cause multiple microscopic lesions. The effects of this type of trauma are oftentimes cumulative rather than immediate (Milner & McCanne, 1991). Many studies reporting high rates of head injury in violent offenders also report high rates of severe cbild abuse (e.g.
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Volume IX pg 162 Lewis, et al, 1986,. 1988) in'dicating a double dose of central nervous system damage resulting in multiple rather than single deficits. As a result, these people are more likely to become antisocial and violent. In addition to the social basis for child abuse leading to violence via modeling, the biological causes may be just as significant.
There are numerous other factors which potentially predispose an individual to violence, however the above are issues which are particailarly relevant and verifiable with Mr. Fautenberty's history, psychological and neuropsychological iesults. It would be impossible to determine exactiy what proportion to attdbute to which factors, but the outcome would be no less predictable. Ivlr. Fautenbeny's probable Attention Deficit/Hyperactivity Disorder, combined with the rage resulting from early abuse and familial chaos, the history' of bead trauma with resuhant .3 behavior and personality changes predispose him to the type of violeat behavior he displayed. IEs neurological deficits make bim more susceptible than normal to the disinhi'biting effects of alcohol use, particularly long standing heavy use.
For purposes of this report, several issues are important, in summary. Importantly, the triers of fact in Mr. Fautenberry's 1 case received superficial and inaccurate information about him for a number of reasons. Ivfitigation information about him for a number of reasons. Mitigation Specialist Susan Shorr was not permitted to function in her role and as a result was not able to gather the kind of data which would have made a thorough evaluation more possible. The professionals hired to evaluate W. Fautenberry, without exception, communicated less than complete and adequate results and opinions to the attomeys and 3-judge panel, stating that Mr. Fautenberry was definitely not brain impaired even though they had performed less than thorough evaluations and did not have this information. Dr. Schmidtgoessling's prediction of future dangerousness did not take into account issues such as W. Fautenberry's state or environmental factors at the tie of his violent behaviors and predicted future dangerousness only on the basis of past history. As Mr. Fautenberry has demonstrated by his history as a Level A inmate, despite his neuropsychological deficits, he manages himself without aggression when in a structured, predictable environment where he has. no access to alcohol. As Dr. Smaildon points out in his I report, brain impairment of the type W. Fautenberry displays appropriately falls under the legal category of "mental defect" which is clearly defined to be a mitigating factor by Ohio statute.
It is the professional opinion of this examiner that the factors addressed in this report would have been valuable to the members of the 3-judge panel who were making decisions regarding W. Fautenberry's sentencing.
Respectfully submitted,
Sharon L. Pearson, Psy.D. Licensed CGnical Psychologist
Volume IX pg 163 References:
Brizer, D.A; Crowner, M.L.; (1989); Current Approaches to the Prediction of Violence• Washington, D.C.; American Psychiatric Press
Carsm, N.R.; (1994); Physiology of Behavior. Needham Heights, MA; AAyn and Bacon.
Nalte, J.; (1993); The Human Brain: An Introduction to its Functional Anatomy; St. Louis; Mosby-Year Book, Inc.
Eliiott, F.A; (1988); Neurological Factors, In V.B. Van Hassett, R.L. Morrison, AS. Bellack, & M. Hersent (Eds.), Handbook of Family Violence (pp. 359-382): New York: Plenum.
Lewis, D.O., Pineus, J.H., Bard, B., Richardson, E., Prichep, L.S., Feldman, M., & Yeager, C. (1986). Psyclriatric, neurological, and psycho-educational characteristics of 15 death row inmates in the United States. American Journal of Psvchiatrv, 143, 838-845.
Lewis, D.O., Pincus, J.H., Bard, B., Richardson, E., Prichep, L.S., Feldman, M., & Yeager, C.; (1988); Neuropsychiatric, psychoeducational, and family charaotetistics of 14 juveniles condenmed to death ia the United States. American Journal of Psvchiatrv: 145, 584589.
MacKinnion, R.A, & Yudofsky, S.C.; (1986); Psychiatric evaluation in clinical practice. New York: Lippincott. i
Mattson, A.J. & Lewin, H.S.; (1990); Frontal lobe dysfunction following closed head injury. Journal of Nervous and Mental Disease. 178, 282-291.
Mesulam, M.M.; (1986); Frontal cortex and behaviors. Annuals ofNeurolo¢v. 19, 319-323.
Milner, B.; (1963); Archives ofNeurolo¢v. 9, 90-100.
R Raine, A.; (1993); The Psychonatholo¢v of Crime: Crinrinal Behavior as a Clinical Disorder; San Diego; Academic Press, Inc.
Milner, J.S., & McCanne, T.R.; (1991); Neuropsychological correlates of physical child abuse. In J.S. Milner (Ed.), Neuropsv c hology ofag8ression (pp. 131-146). Boston: Kluwar.
Monroe, RR.; (1974); Maturational lag in central nervous system development as a partial explanation of episodic violent behavior. Psycholpharmaeoloev Bulletin, 10, 63-64.
Silver, J.M. & Yudofsky, S.C.; (1987); Aggressive behavior in patients with neuropsychiatric disorders. Psychiatric Annals. 17, 367-370.
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