Crime

Face of a killer: Fetal alcohol syndrome may spare a murderer

Convicted murderer Mark Anthony Soliz, shown here at his 2012 trial, lost an appeal to the Texas Criminal Court of Appeals Wednesday.
Convicted murderer Mark Anthony Soliz, shown here at his 2012 trial, lost an appeal to the Texas Criminal Court of Appeals Wednesday. Star-Telegram/Joyce Marshall

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 Godley 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 July 18 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.

Defining disabilities

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 retarded. 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.”

A trail of trouble

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.”

Attorney Mike Heiskell, who defended Soliz with attorney Greg Westfall, said Donna Soliz was “vilified” during testimony, but she did not take the stand to testify in her son’s behalf. “She was very emotionally distraught, guilt-ridden about this whole matter,” Heiskell said.

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.

“The person with fetal alcohol spectrum disorder is highly gullible,” said Dr. Stephen Greenspan, a widely recognized expert on mental retardation who has been involved in the Hearn case. “Someone says, ‘Hey, let’s go kill someone,’ and the person with fetal alcohol syndrome says, ‘Yeah, sure, whatever you want.’

“I’m not saying they shouldn’t be punished, but as a humane society, we’ve always taken into account mitigating factors, and having a damaged brain caused by the fact that your mother drank while she was pregnant should be a mitigating factor,” Greenspan said.

Soliz’s appellate attorney, John Stickels of Arlington, has petitioned the trial judge for a new trial, but his request was not approved.

People with fetal alcohol disorder do well in highly structured environments such as prison, experts say, and could serve a life sentence without serious incident.

Records from the Texas Department of Criminal Justice, however, indicate that Hearn has had eight incidents in the past seven years, including repeated masturbation in front of guards and refusal to comply with requests. Soliz had two incidents in the first month after he arrived on Death Row, including masturbation and refusal to comply with orders. The incidents for both were classified as the lowest level of violation, and none was violent.

Request for clemency

Hearn was within 15 minutes of being executed in 2004 when the 5th U.S. Circuit Court of Appeals halted his execution to allow him to pursue his claim that he is mentally retarded because of fetal alcohol syndrome.

He was convicted of capital murder in Dallas County in the 1998 fatal shooting of 23-year-old stockbroker Joseph Franklin Meziere during a carjacking. Meziere had stopped at a coin-operated carwash to clean his black Mustang convertible when Hearn and three accomplices moved in with guns.

They abducted Meziere and took him to a remote location, where they shot him 12 times in the head and upper body, according to the Criminal Justice Department website. They then took his wallet and other personal items and fled in his vehicle.

Hearn later bragged about the killing. “He was trying to make himself look ... like a big person ... [He] was talking loud, walking around, smiling,” according to a witness quoted in court documents.

His appellate attorneys, Richard Burr of Leggett and Naomi Terr of Houston, filed a petition last month asking the U.S. Supreme Court to review the case. They have also petitioned the State Board of Pardons and Paroles, asking it to recommend to the governor that Hearn be granted clemency and that his sentence be commuted to life. Amnesty International has launched its own letter-writing campaign.

Court documents detail a harsh childhood similar to the one experienced by Soliz. Hearn’s mother, Susan Johnson, told authorities that she was introduced to alcohol at age 4 by her father and began regularly using it at age 7. By age 10, she was using marijuana as well.

She became pregnant with Hearn as a teenager. She told authorities she “drank heavily” during pregnancy and routinely passed out. She also had mental illness and was hospitalized repeatedly. At times, she was homeless.

Hearn’s father was a man she met while she was married to someone else. He was twice convicted of rape and served prison time and was likely mentally retarded himself, according to the petition. Hearn’s mother described him as a “drug-abuser” and “violent.”

For a time, the father, now dead, would take his son on weekends but the mother stopped those visits when she learned he was living in a car.

Hearn, now 33, has been diagnosed with fetal alcohol syndrome, and his attorneys say factors other than IQ scores should be considered when determining mental retardation.

Then-Dallas County prosecutor Jason January, who now has a private law practice, said he saw no evidence that Hearn was mentally challenged.

“I don’t blame the lawyers for trying anything they can think of,” January said. “Having sat with him in trial for months, I didn’t ever see any evidence of any kind of retardation or problem whatsoever.”

Hearn repeatedly failed in school and finally dropped out in the 10th grade. He had a history of criminal behavior, with convictions for theft, burglary, arson, sexual assault and attempted murder.

Burr said Hearn’s family struggled to help the young man, who has been treated for depression and thoughts of suicide.

“Yokamon’s family loves him deeply and desperately hopes that he will not be executed,” he said.

The Texas cases are among a handful nationwide in which fetal alcohol syndrome has been raised. In the Louisiana case, the U.S. Supreme Court initially declined to hear Holmes’ appeal and her petitions are working their way back through lower courts.

Holmes was convicted of a 2003 killing in Louisiana with her boyfriend. Her mother admitted drinking heavily during pregnancy, said Tom Donaldson, president of the National Organization on Fetal Alcohol Syndrome, based in Washington, D.C. The organization submitted a friend-of-the-court brief supporting Holmes’ arguments.

Donaldson said the group is also 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.

Prosecutors and victims advocates say anything less than the death penalty in the Soliz and Hearn cases would be an injustice.

Soliz committed 13 crimes over eight days, including carjackings, armed robberies, a holdup, a drive-by shooting and the fatal shooting of Ruben Martinez, a deliveryman for Ben E. Keith who happened to be unloading beer at a north-side convenience store about 6 a.m. on June 29, 2010.

A few hours later, Weatherly was killed in her home.

The ruthless nature of the crimes made them even more horrifying, prosecutors said.

Soliz laughed in describing the crime to his girlfriend. Hearn bragged about the killings, at one point waving a newspaper article about the case to show his friends.

Their mothers remain out of the picture.

Donna Soliz surfaced briefly during her son’s trial, sitting in the courtroom as her son was handed the death penalty. She appeared confused, and a bit disheveled, but wiped away tears before slipping out of the courtroom again.

She declined an interview request from the Star-Telegram and is reportedly still hitting her same old haunts. Hearn’s mother is now believed to be debilitated by her worsening mental illness.

But victims-rights advocates say the mothers are not to blame for their children’s conscious decisions to kill.

“In most of these cases, the victim survivors are extremely reluctant to accept this as an excuse to spare them from the death penalty or any other sanction,” said Dudley Sharp, a longtime victims-rights advocate based in Houston.

“Even in extremely severe cases ... you’ll have some victim survivors who think, ‘Better dead than alive.’”

Fetal alcohol spectrum disorders

According to the National Organization for Fetal Alcohol Syndrome:

Fetal alcohol spectrum disorders include a range of problems in people whose mothers drank heavily during pregnancy.

Individuals with the syndrome have facial abnormalities that include small, narrow eyes, a thin upper lip and a flattened area between the nose and upper lip, a space known as the philtrum. They may also have a flat midface, a short nose, a small head and a low nasal bridge. They generally are smaller than other children.

Individuals with “partial” fetal alcohol syndrome do not have all the facial abnormalities, but experts say they generally have the same behavioral problems as those with full FAS.

Children with fetal alcohol disorder often have trouble in school, have repeated brushes with the law, abuse alcohol and drugs, and act out sexually.

As adults, they are considered “followers” and have trouble controlling their impulses, learning from their experiences, thinking logically and understanding the reactions of others. They are often viewed as unfeeling and remorseless.

For more information on fetal alcohol syndrome, see www.nofas.org.

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