On 28 January 2019, the U.S. Fourth Circuit Court of Appeals ruled unanimously to affirm a previous District Court ruling that vacated the death sentence given to Charles Williams for the kidnap and murder of his former girlfriend in 2003.

Mr. Williams suffers from Partial Fetal Alcohol Syndrome (PFAS), which renders him with the emotional and adaptive reasoning skills of a young child.

His trial counsel failed to raise this issue at his sentencing, even though investigators hired by the trial team had located evidence pointing to this issue.

Because Mr. Williams is a dual U.S.-German national, the Republic of Germany asked us to file an amicus curiae (a non-party friend of the court) brief in support of Mr. Williams’ appeal of the death sentence to the federal courts.

Diminished culpability

We advanced the argument that Mr. Williams’ trial counsel had not adequately represented him by failing to investigate evidence of his PFAS, an organic brain condition that diminished his culpability for the crime and his eligibility for the death penalty.

New York partner Owen Pell explains: “Mr. Williams’ guilt wasn’t in question, but his mental disability should have made him ineligible for the death sentence under the U.S. Constitution.

“We’d been involved in the case as amicus curiae since 2012, but it wasn’t until 2016, right before Mr. Williams’ first Supreme Court petition from the state court proceedings, that we decided to make PFAS the primary focus of the argument.”

It was around that time that New York associate Alice Tsier joined the case. She says: “I’d been working in our Paris office for a year on an internal investigation, so when I returned to the United States I was keen to get back to writing briefs.

“I asked Owen if there was anything I could work on and he told me he needed someone to help create an amicus brief for the Williams case.

“He explained that, while our previous appeals did argue the importance of Mr. Williams’ diagnosis of PFAS, it wasn’t the singular focus of our brief.

“We were also aware that Mr. Williams’s counsel at the district court didn’t think PFAS was as important to the case as we did, so I was tasked with making the importance of PFAS understandable to the judge at the District Court who would be considering Mr. Williams’ habeas corpus petition.”

At the heart of the issue

Owen says: “We strongly believed that PFAS was the most important argument here – the whole ballgame. We needed to show the court how it went to the heart of moral culpability, and why it not being discussed as part of his sentencing phase rendered trial counsel constitutionally ineffective.

“We also wanted to make a strong case that PFAS is a form of brain damage – it is concrete, with clearly defined and objective diagnostic criteria, because we wanted to avoid the risk that the State of South Carolina would argue that this was just another tool for defense counsel.”

PFAS is a type of organic brain damage that can occur in children whose mothers drink alcohol during pregnancy. It is often described as a hidden disability because most individuals affected are not diagnosed until adolescence or adulthood, if at all.

Alice says: “The more I spoke to the experts, the more convinced I became that PFAS had a genuine impact on Mr. Williams’ culpability and that the death sentence he’d received was unfair.

“PFAS is unique because it isn’t necessarily noticeable. While symptoms aren’t usually displayed in a structured environment, such as at school, in adult life it can significantly impact a person’s ability to turn back in stressful situations or make good choices.

“People with PFAS can have some of the emotional characteristics of a nine-year-old child but, because they usually have an average IQ, they tend to pass the test used to determine if they can legitimately claim to have a mental illness.”

Our work on the Williams case was led by Owen and Louis O’Neill in New York, with Alice and Amity Boye doing much of the drafting. We had further assistance from lawyers in New York, Boston and Frankfurt with those involved including Yakov Malkiel in Boston and Nida Jafrani and Elzbieta Matthews in New York.

Unique condition

In court, we successfully made the case that PFAS was a unique condition and that laws in the United States that prevent children and mentally ill inmates from receiving the death penalty should apply for Mr. Williams.

Critically, this convinced the court that the failure of Mr. Williams’ counsel to argue the importance of his PFAS diagnosis at the sentencing phase was such a severe oversight that it rose to the level of ineffective assistance of counsel.

Alice says: “As an amicus counsel representing Germany rather than Mr. Williams himself we’d usually only submit a written brief but, in this case, we requested and were granted the opportunity to participate in the oral argument.

“A total of 10 grounds were put before the court as arguments for vacating the death penalty and replacing it with a life sentence, but only the one we focused on (PFAS) was successful.

The District Court judge that granted the habeas petition had never before, in eight years as a federal judge, granted a habeas corpus motion.”

Having won in the District Court, the real landmark came when the Fourth Circuit upheld the decision, meaning it now sets a more important legal precedent in the United States.

Since then, Alice has travelled to Seattle to receive an award from the Board of Directors of The Streissguth FASD Forensic Institute. It recognizes her role in gaining legal recognition for the legitimate impact PFAS can have on those who suffer from it.

A game changer

She says: “This is a real game changer for people with PFAS because, in the past, its legitimacy as a genuine argument against culpability had been questioned.

“Now there is real legal recognition of PFAS and, according to one expert, it is the most significant ruling on PFAS he’s seen in his entire career.

“On top of that, the ruling was extremely unusual because Germany was added by the Fourth Circuit to the case caption, which illustrates the unusual importance of the amicus in the outcome of this case.

“Travelling to Seattle for the award ceremony was fantastic, because I got to meet so many of the experts who’d been so supportive over the last few years.

“Having the chance to work on this case has been incredible for me personally and I’d encourage anyone to take advantage of the unique pro bono opportunities the Firm offers.

“This is one of the things that makes White & Case special, because there are very few jobs, even in the legal profession, where you genuinely have the chance to make a difference, change the law and make a life-changing, lasting difference.”