Fetal Alcohol Syndrome: The Overlooked Affirmative Defense

In the state of Michigan, the concept of an affirmative defense is one that places an argument in reverse, but it is also a theory that can lead to the preservation of one’s freedom. Often with an affirmative defense, one’s medical condition can play a vital role in the arsenal of the diligent defense attorney and the disease of “Fetal Alcohol Syndrome” (FAS) has become a hidden issue in the field of criminal law. iStock_000011602905_Large-2-300x200

When we look at FAS, we see a situation where an individual has an uphill battle in understanding right from wrong and one’s quality of life is compromised. FAS is a condition in a child that results from alcohol exposure during the mother’s pregnancy. The disease causes brain damage, and growth problems and defects are generally not reversible and often appears more magnificently as the child grows older. FAS is something that affects many young defendants in the criminal justice system across the state of Michigan. To gain more insight on the subject, we discussed the topic with criminal lawyers in our state that have utilized affirmative defenses based upon the issue.

Scott Grabel is the founder of Grabel and Associates and runs a firm that has developed a reputation as the top criminal defense team in the state. When asked about FAS, Grabel stated, “Generally, this is an overlooked subject, and that is tragic on many levels. To begin, when dealing with specific intent crimes, an intelligent lawyer can display that the defendant did not have the desire to commit the crime, for other crimes such as CSC, the defense becomes more problematic and as an attorney, your job should be two-fold: The first would be to try to obtain a dismissal or an HYTA outcome and in the alternative, create an appealable right for your client.”

Matthew McManus is the Managing Member of Ann Arbor Legal in Ann Arbor, Michigan and has built a firm that is known for aggressive criminal defense work. McManus himself has developed a reputation as an elite researcher and added to Grabel’s commentary when he stated, “There have been studies conducted at the University of Saskatchewan that display many young offenders actually become model prisoners when they have FAS because the youthful defendant needs structure, but the reality is that treatment is needed in these cases, not incarceration. In countries outside of the United States, the syndrome of FAS has garnered a tremendous amount of appreciation and funding. There is an understanding that those with FAS may never have the same quality of life as those without the syndrome but with treatment, these and conformity these young people are not a threat to society.”

Jordan Vahdat runs The Law Office of Jordan Vahdat and is known as a strong criminal defense attorney in Oakland County, Michigan. When asked about FAS, Vahdat said, “Oakland County takes a different view on affirmative defenses as opposed to Ingham, Wayne or Washtenaw County. In Oakland County, any affirmative defense comes with a tremendous amount of scrutiny, but we have a ground of jurists that truly provide a fair reading to the arguments, and this gives the defense lawyer a chance to prevail on the written page as well as the oral argument.”

Grabel went on to add, “When Michigan speaks of uniformity of practice, that’s a comical statement, and Vahdat makes an excellent point. The view of an affirmative defense such as FAS in a small town prosecutor’s office is far more difficult to advance as opposed to a larger city. The understanding of an argument such as a FAS defense will be given more leeway in Washtenaw County as opposed to Lapeer or Caro. With these facts in place, the lawyer that is not creating appealable issues for their client is not doing our system justice. FAS is a rampant syndrome that needs to be addressed far more frequently than it currently is argued.”

Whenever the topic of an affirmative defense is present, the initial reaction is that the defendant is facing an uphill battle, but in reality, the discussion of FAS can also question the IQ of the defendant and can provide support to help suppress statements and preserve 4th, 5th and 6th Amendment protections. Without a clear reading of the defendant’s medical records, the defense counsel cannot correctly advance arguments that are crucial to one’s freedom.

William Amadeo is a Senior Associate for Grabel and Associates, a partner at Ann Arbor Legal and works as a “Class Action Specialist” for Tim McIlwain. Amadeo is licensed in Michigan, New Jersey and the federal court system and practices all areas of criminal law. In addition to his litigation duties, Amadeo is a widely published journalist and owns BAT Tutoring in Lansing, Michigan. Amadeo can be reached at Williamamadeo@Grabellaw.com.