“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

Trump Eighth Circuit judge David Stras casts the deciding vote against a death row inmate’s Sixth Amendment violation claim against his attorney who failed to present evidence of his fetal alcohol spectrum disorder, with another Trump judge dissenting. The case is Anderson v. Kelley.

In 2000 when Justin Anderson was 19 years old, he was convicted of murder. During the death penalty phase of the trial, his attorney presented testimony on Anderson’s abusive childhood. Despite the mitigating evidence, the jury sentenced Anderson to death. The Arkansas Supreme Court reversed the verdict and remanded the case for resentencing because the court determined that the jury did not consider all of the mitigating evidence.

Significant proof existed that Anderson’s mother abused alcohol while she was pregnant with Anderson. His attorney knew this but did not pursue the possibility of Anderson’s fetal alcohol spectrum disorder (FASD).

By the time of Anderson’s second death penalty trial, it was common practice to investigate for FASD. However, Anderson’s attorney did not request any neuropsychological testing, did not have Anderson screened for post-traumatic stress disorder and presented no expert testimony about Anderson’s brain development as a child. Anderson was again sentenced to death.

Anderson sought post-conviction relief and lost. He then filed a petition for habeas corpus in federal district court. That petition was dismissed and Anderson appealed. On appeal Anderson claimed that despite evidence of his abuse as a child, his attorney failed to present evidence of his mental health limitations and ignored obvious signs of FASD and failed to order neuropsychological testing. Had this evidence been presented, Anderson believed he would not have been sentenced to death.

The majority affirmed the district court’s ruling, explaining that Anderson’s attorney’s representation did not fall below a standard level of reasonableness and even if it did, Anderson did not establish that he was prejudiced as a result.

Trump judge Jonathan Kobes strongly disagreed, arguing that Anderson established that his counsel failed to fully investigate his exposure to alcohol while in his mother’s womb. Judge Kobes quoted from his colleagues on the Fourth Circuit Court of Appeals to make his point. “An inadequate investigation into potentially mitigating evidence can be, by itself, sufficient to establish deficient performance” by counsel.