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Originally published Saturday, July 14, 2012 at 6:01 AM

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Fetal alcohol syndrome may spare a murderer

Mark Anthony Soliz is a convicted murderer sitting on Texas death row awaiting an execution date. But advocates are hoping to spare his life, and others', by excluding the death penalty for defendants with fetal alcohol syndrome, a form of brain damage caused by maternal alcohol abuse.

McClatchy Newspapers

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FORT WORTH, Texas — A mother's failures are etched on Mark Anthony Soliz's face.

It's the damaged face of a child whose mother drank heavily, sniffed paint and used drugs while pregnant, the face of a youth who was largely abandoned.

The face of a killer.

Now, with Soliz sitting on Texas death row awaiting an execution date, the long-ago failings of his mother could hold the key to sparing his life.

Soliz's appeal of his capital murder conviction in the death of a grandmother has joined a growing list of cases nationwide seeking to exclude the death penalty for defendants with fetal alcohol syndrome, a form of brain damage caused by maternal alcohol abuse.

Experts say the death penalty should be off the table in such cases, just as the U.S. Supreme Court has abolished the death penalty for defendants with mental retardation.

Prosecutors and victims' advocates, however, say it's a guise for going easy on killers who show no such mercy to their victims.

"FAS should not be used as an excuse for intentionally and knowingly murdering another person," said Andy Kahan, a victims' rights advocate in Houston.

"Clearly, the defendant has been able to make law-abiding decisions on a daily basis, and they obviously know right from wrong. FAS is yet another hurdle for surviving family members of homicide to overcome to secure justice for the coldblooded murder of their loved ones."

The Soliz case is one of at least two in Texas seeking a permanent reprieve from the death penalty through the appeals courts.

Texas death-row inmate Yokamon Laneal Hearn, who has also been diagnosed with fetal alcohol syndrome, is set for execution Wednesday in the shooting of a Plano stockbroker during a robbery.

Hearn's case has drawn the attention of Amnesty International, which is urging a letter-writing campaign for clemency to Gov. Rick Perry. Soliz's case is just beginning its trek through the appeals process after his conviction in March by a Johnson County jury.

The Atkins case

Soliz, Hearn and others are pinning their hopes on the U.S. Supreme Court's ruling in the case of Daryl Atkins, who was convicted in Virginia in the 1996 fatal shooting of an airman from Langley Air Force Base.

Atkins was 18 at the time, and with an IQ of 59, he was considered mentally disabled. He received the death penalty.

But in a groundbreaking decision in the Atkins case in 2002, the Supreme Court held that executing a person who is mentally retarded violates the Eighth Amendment's prohibition against cruel and unusual punishment.

The deficiencies associated with mental retardation, the court concluded, reduce a person's culpability in the crime.

Experts say the same rules should apply to people with fetal alcohol syndrome.

Those people have the same diminished capacities as those with mental retardation, they say, even though their IQs may test somewhat higher than the 70-75 range typically used to define mental retardation.

"The damage to the executive functioning of the brain is as severe as someone who is intellectually disabled," said John Niland, director of the Capital Trial Project with the Texas Defender Service, a nonprofit law firm in Houston and Austin that also provides training and consultation for attorneys in death-penalty cases. "I don't think we've been aware of it long enough to identify all of the cases."

The U.S. Supreme Court has already rejected a request to review a fetal-alcohol case involving Louisiana death-row inmate Brandy Holmes, who was named after her mother's favorite liquor. But death-penalty opponents say that does not rule out that other fetal-alcohol cases could be considered by the nation's highest court.

Johnson County District Attorney Dale Hanna, who participated in the Soliz trial, said that fetal-alcohol symptoms can vary widely and that such defendants should not be excluded outright from the death penalty.

"It's certainly something a jury can consider," Hanna said, "but in the Soliz case, it didn't go very far."

The Soliz case

Soliz had been out of prison just a few months when he knocked on the front door of Nancy Weatherly's home in Godley, south of Fort Worth, on June 29, 2010. He was on the eighth day of a drug-fueled crime spree that had left one man dead and two others wounded in Tarrant County, and he had headed south to Johnson County with an accomplice to find more victims.

He ignored Weatherly's pleas for mercy and shot her in the head, then laughed later at her accent, according to evidence presented at trial.

Even his gang friends on Fort Worth's north side thought he was "sick mentally" and they were "scared to be around him," an ex-girlfriend testified.

Soliz had been in trouble with the law since he was caught stealing at age 8, and by age 10 he was in a psychiatric hospital, reportedly "hearing voices telling him to kill people." The arrests and convictions began to pile up as soon as he hit the adult legal system — for thefts, burglary, evading arrest.

The psychologists, social workers and probation officers who testified at his trial said it was one of the worst cases of childhood neglect and abandonment they had ever seen.

His mother, Donna Soliz, spent most of her pregnancy drinking and doing drugs, including hours sniffing paint on the porch, family members testified. The neglect continued after Soliz was born, and he was left to wander the neighborhood alone as young as age 4.

Despite efforts to get child-welfare officials involved, he remained in the home, where he sometimes was pushed out of the only bed so his mother could work as a prostitute to pay for her drug habit.

"His upbringing, his environment — I have never seen a worse set of factors," said Dr. Natalie Novick Brown, a forensic psychologist with Seattle-based FASD Experts and one of several who testified for the defense in Soliz's capital murder trial. "Virtually everything that could have gone wrong in the way that man was raised did go wrong, and it went wrong horribly."

Soliz, now 30, was diagnosed with "partial" fetal alcohol spectrum disorder, meaning he does not have all the overt facial abnormalities found in severe cases.

Soliz has the narrow, close-set eyes typical of the syndrome, but he does not have a flat upper lip and flattened area between the nose and lips that can also be found, Dr. Richard Adler, a physician with FASD Experts, told jurors. The flattened features appear more evident in the few photos taken of him as a child, however, and they may have faded as he grew older, Adler said.

But experts testified that Soliz exhibited all the behaviors typical of someone who endured heavy alcohol exposure before birth — diminished ability to process information, to learn from experiences, to control impulses and to understand the reactions of others. Those deficiencies are the same ones cited by the Supreme Court in ruling the death penalty unconstitutional for those who are mentally retarded.

Tom Donaldson, president of the National Organization on Fetal Alcohol Syndrome, based in Washington, D.C., said the group is working to educate the public about the syndrome and hopes to raise awareness of possible treatment for those affected by it.

He said research indicates that as many as 40,000 children a year suffer damage from their mothers' heavy alcohol use during pregnancy.

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