MISTAKES THAT
I HAVE MADE WITH FAS CLIENTS
by David Boulding
(Reprinted here with permission)
My remarks
are personal and tentative - there are probably more mistakes I
have made. Perhaps I am unaware of them or perhaps I choose to remain
unaware.
It is embarrassing
to admit. I encourage you to tell me what your experience has been
with lawyers' mistakes because you can help me learn from my mistakes.
Secondly, I
am applying to Court to force the Government to pay for a Fetal
Alcohol Syndrome Assessment for my client - he is going to jail.
1. I assumed
like most young offender clients that their problems were fixable
given the standard terms of Probation Orders and Orders.
2. I assumed
that the my FAS client could tell the Judge what happened in a way
that would make sense.
3. I assumed
that they would be able to demonstrate remorse to the Judge.
4. I assumed
that after they got caught the third or fourth time for the same
offence in the same set of circumstances that they would learn at
least to get caught for either other offences or wear gloves.
5. I assumed
that they understood the notion of consequences - steal from cars
you go to jail.
6. I assumed
that they understood the notion of time - 3 days in jail is not
the same as 3 months.
The next mistake
I made is I failed to tell my clients the same lawyer/client instructions
over and over again. I assumed that because we had been to Court
many times that my client knew that he should not interrupt the
Prosecutor during a Show Cause hearing, correct his facts and therefore
admit that he was there and that he did it.
I failed to
discuss with the parents the apparently "crazy" situation although
I knew the parents and I knew that the parents had severe drinking
problems and a history of drinking problems for years, I never asked
more about the home family life and I never asked my client about
his parents' drinking.
I was always
puzzled and I failed to understand that there was a good reason
that in the PSRs my client came across as very well. He gave good
PSRs and I failed to understand that the reason he was so candid
and up front and straight ahead, is he just didn't understand how
to play the game and that he was suggestible easy to get to say
the answer PSR writers sought.
I failed to
consider that there are some offences, some situations which I should
have considered NCRMD applications - at least then I might have
begun to get some psychology, some neuro psychology information.
I failed to
consider Charter breaches although I found that most Crown were
very helpful in reducing a number of the charges. I never twigged
to the fact that he has a three page Criminal Record and he plead
guilty every time and that there was a behaviour problem at the
brain level. I failed to look past "antisocial disorder".
Another mistake
I made is I failed to consider a psychological assessment at any
time because my client seemed so pleasant and he didn't seem to
have any outward signs of what I would call psychological difficulties.
He did not have any drug or alcohol problems and I failed to understand
that there must be something wrong with his brain.
I failed to
see behind my client's cheery, positive presentation itself that
there was another problem. Like most Judges and police officers
and probation people, my client was not a really bad kid.
I failed to
ask for the Social Services records on the family and I never did
take a look at his early medical records. In fact, I never looked
at any medical records.
I failed to
note that almost always my client was the Number 2 or Number 3 person
involved in the offence and that he was the one who was always caught.
I never quite twigged to the fact that there must be a reason the
other people involved in the offence seldom got caught.
I failed to
see that there was no real escalation in offences and because of
this lack of escalation, that perhaps there wasn't a real criminal
element here. Perhaps there was just an absolute moment by moment
I want, I take mechanism as opposed to some sort of deeply ingrained
refusal to follow rules.
I failed to
understand that sometimes when my client was telling me the story
there were blanks in his memory where part of the story just wasn't
there, that he just didn't remember, didn't know. I failed to take
detailed instructions of the offences.
I failed to
understand the nature of impulsive activity and because my client
told the stories in sort of a sort of amusing and funny way to both
me and the police officers, I failed to see past his rather humorous
presentation of self.
I failed to
get written instructions. My thinking here is that had I sat down
with my client and got him to write out his instructions, that it
might have some sort of ability or some way of getting the message
to sink in. Here perhaps I am still hanging onto denial in terms
of not understanding the scope of the brain injury.
I failed to
see that jail had no affect on my client's behaviour and the main
reason he didn't want to go to jail was because he couldn't be with
his friends. But that if he did go to jail with his friends it seemed
to have no impact on him at all.
I failed to
talk to other lawyers and other probation officers about the particular
set of facts that kept reappearing. It only twigged to me after
some six years of dealing with one client before I asked a senior
probation officer who quickly volunteered that it was probably Fetal
Alcohol Syndrome.
I never asked
my client's mother directly about her drinking. Perhaps out of some
sort of misinformed political correctness or perhaps because I am
too shy and I didn't want to embarrass her and perhaps because she
was an aboriginal woman who clearly had too many difficulties to
begin with and because she was almost always in tears when her son
was in jail, I never really asked her about her difficulties so
I didn't understand the family context.
Although I
acted for most of the family members, I never sat down and drew
out a family tree and tried to figure out who was who and who in
the family had what particular problem. It just seemed to me to
be something that I never put in place. I never put into place structures
that would help my client with follow through.
I mean here
that my client often did not follow through with basics like certain
appointments, being on time, going to the right places, doing the
right things and I always tried to simplify Probation Orders to
make it as easy as possible because I thought my client just could
not handle complex Orders.
I didn't understand
that this inability to handle complex notions of responsibility
and consequences were something I should have considered.
I failed to
sit down and write out all of the various excuses for the various
offences. Had I written down on one page the 10 or 15 excuses for
some of these offences and had a look at them, I would have asked
for some psychological help but I kept treating each offence in
isolation not understanding that it was the same crazy offence or
even more outlandish rationalizations or simple minded explanations.
I failed to
understand that within the aboriginal community several aunts distantly
related understood there was a problem and instinctively took care
of my client for various periods of his life but it was during those
periods of intense supervision that he was crime free but as soon
as that supervision went away or the aunt went to visit somebody
in Alert Bay or somewhere bingo he was back in jail.
I never put
together the constant supervision by an appropriate parental authority
and the lack of crime. I never understood that there was a problem
because almost all of the crimes were of an acquiring of household
goods or immediate pleasures as opposed to any other sort of violence
or any kind of sophisticated planning.
I didn't understand
that almost all of the offences were spur of the moment sort of
things with the lack of any planning or forethought. The best example
is the hairdresser and the cops at the doughnut shop story.
The biggest
mistake I have made is my lack of political awareness and I have
just recently become aware that my mistakes which my client is going
to pay the most for, is I failed to understand the degree of government
complicity in his criminalization.
I failed to
understand that if he was an elderly man with Alzheimers he would
be getting some services but because he is a 20 year old native
male with a long Criminal Record, he is labeled anti-social and
put in jail - end of story.
My process
of education has been an accelerated learning curve and unfortunately
my client is suffering because I had to learn the hard way.
Dated: February
24, 2001
David Boulding
Barrister and Solicitor
Coquitlam, British Columbia
Revised and More
Complete Version (Word Doc 50k)
If you live
in B.C., please write a letter to the Attorney General (address
below) insisting that the Attorney General issue an order that requires
each accused individual with symptoms of possible FAS spectrum disorders
receive an assessment, paid by the court, by a diagnostician trained
in FAS assessment by the Washington team of Drs. Clarren and Astley.
Address your letter as follows:
MINISTRY OF ATTORNEY GENERAL
Parliament Buildings
Victoria, BC V8V 1X4
FAX: 1-250-387-6411
cc:
David Boulding
Barrister and Solicitor
Suite 206 – 2922 Glen Drive
Coquitlam, B.C. V3B 2P7
Fax: (604) 945-2063
Ed Johns
Minister of Children & Families
PO Box 9057
Station Provincial Govt
Victoria, BC V8W 9E2
Fax: 1-250-387-9722
Other Canadian government officials can be found
here: http://www.canada.gc.ca/directories/direct_e.html
FAS
Community Resource Center
|