Doug Passon: Breaking Down Barriers, How Understanding Autism Changes Legal Outcomes

Welcome to Why Not Me the World? Podcast hosted by
Tony Mantor, broadcasting from Music City USA, Nashville, Tennessee. Join
us as our guests tell us their stories. Some will
make you laugh, some will make you cry. Real life
people who will inspire and show that you are not
alone in this world. Hopefully you gain more awareness, acceptance,
and a better understanding for autism around the world.
Hi, I'm Tony Mentor. Welcome to Why Not Me the World?
Humanity over Handcuffs the Silent Crisis Special event. US is
Doug Passon. He is a seasoned criminal defense lawyer with
over thirty years of experience. He's an award winning documentary
filmmaker recognized by The Wall Street Journal as a pioneer
in the use of video in sentencing mitigation. He is
a gifted storyteller and has joined us today to tell
his story of advocating for autism in the legal system.
Thanks for coming on. If you would give us a
little information about yourself.
Yeah, So I'm a criminal defense lawyer and I have
been for almost thirty years. And I'm also a filmmaker.
So my whole life was one of two tracks. Lawyer filmmaker,
as long as I can remember, and when college was over,
I had to pick a path, and I chose lawyer.
It made more sense. I think my folks were worried
I'd be sleeping on their couch till I was thirty
five if I was a starving artist. But I was
always passionate about the law and always passionate about criminal defense.
I want to be a public defender, passionate about justice issue.
I chose that path, but I was always making films
and immersing myself in story and reading all the books,
taking classes. Eventually those two things intersected and I figured
out that figured out very fast. The system was so dehumanizing.
And we're not even at the autism piece. This is
just a criminal justice system. When you get charged with
a crime, you're reduced to a stack of paper in
a file and you're trying, and you're going to be
defined by the worst mistake you ever made, and that's
as much as you are and will ever be, and
you're a monster, and we need to punish you to
the full extent of the law, and blah blah blah.
And I just saw that over and over again. And
my job, especially given that most people who find themselves indicted,
charged with a crime, They're gonna end up at sentencing.
That's the odds, you know, the odds are you know,
even in I work mostly in the federal system, ninety
six seven eight percent of those people are pleading guilty.
They're not even having a trial, so you know, they're
getting sentenced, and then the small percentage of people that go
to trial, they don't always win. I found myself trying
to be really just being a storyteller and showing the
humanity of my clients. My clients, Yes they made a mistake,
Yes there's going to be a consequence, but the question
is what's a fair consequence? And the only way you
can measure that it's not by the crime. It's by
you've got to judge the person as much as you're
going to be judging the crime, and that's the only
way you can judge what is a fair consequence? So
what is your life story? And that's my thing. I'm
a storyteller, and I need to make sure that the
people that are making these life and death decisions understand
the human being behind the crime. So I started making
movies in cases.
Wow, that's pretty interesting. When did you start doing the filming.
Two thousand and five. I was actually my first video,
and I figured out it was a really powerful way
to advocate in the federal system. A lot of times,
the first time the judge ever lays eyes on a
client is that sentencing, because they've gone through magistrate and
other lower court judges to plead guilty in these ministerial things,
and now all of a sudden, the whole time, they've
just been this, like I said, stack of paper and
a file, so you can get this video. It's a
short documentary about the case or the client explaining who
they are, why they did what they did, why they're
not going to do it again, whatever the case may be.
And then the judge has that in advance of sentencing,
so he or she has actually had an opportunity to
essentially meet the client, sit with the client, experience the
client in their own world. So eventually I left the
traditional legal practice to go focus on making those movies,
and that's what I do for lawyers all over the country,
and I help them build the story. You don't get
to the movie until you know what the story is
that you're trying to tell. And then we make these movies.
When I left. That was ten years ago, and I
just envisioned myself being the movie guy. But guess what happened.
What happened with what you're telling me, I'm sure it
must be pretty good. I met Mark Mahoney. Actually, that's great.
He's actually been on the podcast.
He is the lead autism lawyer in the world. I
would venture to say. He understood that the huge challenge
in autism cases was to get people to understand the
truth about our clients, because most people don't know what
it is, they don't know why it matters. He understood
that these sensing videos would be a really powerful tool
in autism cases. So I started working on these cases
with him, and eventually I got pulled back into the
traditional legal practice and I handle these cases now like
Mark does. And I'm always calling markup, going I need this,
I need that, and he's so generous. So now I'm
a lawyer, I'm a filmmaker, and now I'm representing these
clients as well in various stages of the proceeding. That's
so great.
What led you to doing this?
I have a personal connection to this because I have
a son who's on the autism spectrum. I think I
got the issues more than most. And here's the big problem.
There are very few lawyers who really understand that they
can even recognize the issue when they have case, let
alone understand what to do with it, how to develop it,
how to present it, and why it's mitigating, why it
matters to the story. I'm so grateful to come on
your podcast because I'm really on a mission to educate
lawyers first and foremost. You don't have to know everything
about autism. It's okay. Just know enough to see it,
to see the signs, and then dig around and make
sure you've developed this part of it because we miss
it all the time. What are the CDC statistics right now?
I think it's one in thirty six. Let's extrapolate the numbers,
because I think I've handled about a thousand cases in
my thirty years, which means how many of those clients
were on the spectrum and I knew nothing about it
for the first twenty years of my practice, because we
as a society still know relatively little about it. So
how many of those did I miss? And how much detriment?
You know, how much damage resulted because I didn't know
what I didn't know And It's not a criticism of lawyers.
You can't be expected to know everything, but we have
to start opening our eyes to this issue. It's so crucial.
Yes, absolutely, I did talk with Mark. He brought up
the fact that he thought that some lawyers, unfortunately just
did not want outside help and that sometimes could hurt
the case. How do we get past that? Just like
you said, we need lawyers out there that understand the
situation of the autistic people. There's no shame in asking
for help, especially when your client may need it.
Yeah, that that's the sixty four thousand dollars question. Because
we're a strange breed. I don't know if it's the
personality that's drawn to the legal practice. What's highly competitive.
We've gone through years of school, most of us have
practice for decades. We'd like to think we just know everything.
It's the difference between a growth mindset and a fixed mindset.
It's really interesting because when you talk about some of
the hallmarks of autism, what is wheen of the major
problems or obstacles rigid thinking. I would love to do
a cross sectional study of lawyers because I have a
feeling that many of us are probably on the spectrum,
especially the older lawyers have been doing this whole career.
This is how I do it. I know what I'm doing.
I don't need you to tell me. And oh, that
probably doesn't matter anyway, because they don't know what they
don't know, and I don't know how you combat that
other than educate, which is what you're doing again, which
is why I'm so grateful to be here and just
hoping that a lawyer, no matter how far you've gone
in practice, you still know that you always have something
to learn. That's just called life exactly.
Another thing Mark brought up, a lot of autistic people
can speak with you, speak with anyone like a Rhodes scholar,
yet they are still autistic. Sometimes they lack the process
of that critical thinking, which is what you brought up earlier,
where they put themselves in a sitution situation, not fully
understanding they're getting themselves in a situation. How do you
help them through this? They're thrown into the legal system,
which is very scary. It's the big unknown to them.
What's the first step that you offer or take to
help them.
There's a lot to unpack. If I can speak to
how I support the family, here's The interesting thing I
think more often than not, clients are coming to me
and they're not diagnosed. They don't know they've had these problems,
they've struggled their whole life, and they've always just thought,
I'm weird, there's something wrong with me whatever, I'm this,
I'm that, and it's a horrible, lonely way to go
through life. And the sad irony is this tragic occurrence
of finding themselves ensnared in the criminal justice system is
the first time they truly begin to understand what their
struggles really are and that there's a real diagnosis. And
I call it the rush of insight.
Okay, that's definitely interesting. Can you expand on that.
I'm a filmmaker as storyteller, and the really good stories
always have that big reveal. Right, you didn't see it coming,
but the seeds were always there, they were planted along
the way. And I always use Empire Strikes Back as
my go to example, which is Luke, I'm your father.
I didn't see that one coming, but then you go
back and all the clues made total sense, and then
your whole story comes in the focus. And that's what
happens when you get the autism diagnosis. The level of
support is to say, look, I know this is horrible,
and we're going to do our very best to navigate this,
to run this gauntlet, and I'm going to be by
your side through the whole thing. Look, here's the bright side.
Now you know, and now you can start to get
the right help, the right counseling, the right tools to
navigate not only this stress in your life, but your
life in general, because for most people on the spectrum,
life is unmanageable, even if they're not involved in some
kind of criminal activity, and so there is a sense
of relief and hope that the future can be better
once they've figured out what's wrong, to have a path
forward to fix it. The bigger challenge is what you
said at the beginning of this question, which is the
idea of people thinking, well, if they have a high
intellect and they can carry on these really high level conversations,
then whatever you're saying is not relevant. Of course, they
knew what they were doing was wrong. How could they
not have They graduated high school, they drive a car,
they've held a job, they've gone to college, whatever it is.
Nothing could be further from the truth, and that is
our monumental hurdle, and I'm sure Mark talked about that too,
is breaking through that wall of complete misunderstanding. And you
know in the criminal justices and people are inherently skeptical
about defense lawyers to begin with that we're just trying
to get our clients off and lie and cheat and
sell snake oil. So when it comes to autism, a
lot of prosecutors call it the excuse to oh, this
doesn't really make a difference. But so what he has
it he's high functioning, and so that means his autism
is mild. I don't think your listeners can see these
air quotes that I'm putting up, but I hate those terms.
Can you expand on those terms so the listeners can
get a better understanding of what you're trying to put across.
They don't tell the truth about the true struggles of
an autistic person. Yes, they can have a decent IQ,
maybe even a high IQ, but when you look at
their emotional intelligence, their social intelligence, their receptive language skills.
If you give some of these folks a test called
the Vinelin assessment, which is social adaptive language and adaptive
skill set and all these things, they might come out
as an eight, nine, ten, eleven, twelve year old child
on these tests. When I try to explain to the
decision makers why this is real, a couple of things
I fall back on, And I will say, I don't
want to create the impression that people on the spectrum
are completely broken deficient in any way. Yes, it is
a disability, but any disability can be overcome. But I
do think that it's a superpower and kryptonite all rolled
into one. It's that kryptonite aspect that we need to
shine the light on and say, Okay, how is this
so debilitating? Kryptonite kills Superman? Right? How can autism be
so debilitating that it could cause you to commit a
crime like oh, I don't know, downloading childborn, meeting a
twelve year old girl for a sexual encounter in a
parking lot. Now, your listeners, their skin's gonna crawl. But
these are the kinds of things a lot of people
on the spectrum find themselves in trouble for. And then
there are your basic fraud cases. How do they get
in trouble for committing white collar crimes? Not to mention
like terrorism related defenses? Do you know how many one
to six defendants are probably on the autism spectrum. I
have a client right now who destroyed allegedly some energy facilities.
Why because he's passionate about climate change. He knows everything
thing there is to know about global weather patterns and
history of climate change, the players, the pole industry, the
fuel industry, the way this pipeline works, everything, And he's brilliant.
Then he goes out and does something allegedly as dumb
as shooting a gun in the middle of the night.
No nobody's hurt, but blowing some holes in a transmitter
to shut down this little, rinkinging power station in the
middle of nowhere. And the question is, how could someone
so smart do something so dumb? What were they thinking?
And the answer is they weren't thinking, because that's what
autism is. It's really an impairment of the way that
your brain processes information. I know I'm talking lots that
feel free to shut me down or interrupt or whatever.
But the way I make sense of this in my
own mind is there's a few pillars that lead to trouble,
big trouble.
No, this is great information, not a problem at all.
So what are some of these things that lead to
the these issues he was just referring to.
First is isolation. This part always chokes me up because
I think my own son, thank god, has never been
in trouble a day in his life. Why because since
probably since he was four or five years old, he
had a diagnosis, and he had parents who understood this
stuff and had access to therapy and resources and have
understood what potential pitfalls and dangers are. I do this work.
How many times have I gone into my son's been hey,
just to make sure kiddo, it's not okay to do
X y Z right, And he's yeah, Dad, thanks. This
is the story I have a hard time telling with
regard to isolation. I see pictures of my son when
he's a young boy two three, four years old, and
he has his beautiful smile, so happy. Now I look
at these pictures and he won't smile for a picture.
He just won't. It's emotional affect issues and things with autism.
And I was looking at how much emotion and how
effervescent and beautiful this boy was, And I asked my
wife who and she has a great background on this.
She's speech language pathologist and she worked with autistic kids
in the school district. I said, Rach, do you think
it's possible that autism is like comes later in life,
like it's an onset that progressive. Look at his emotional
affect here and look at here, And she said no,
I think more likely than not that life has just
beaten the smile out of our son.
Yeah, unfortunately, that happens with a lot of kids. It's
just life in today's world.
I think he was bullied with very little friends, bullied,
always felt bad about himself. Teachers didn't understand the principles,
didn't understand him. So I'm sorry, I'm getting emotional. That's
quite all right. It's your son. There's no reason to
not feel that way. What happens to these kids they
get isolated. They don't have the social interaction to where
they can learn the things that neurotypicals learn about this
is the way you're supposed to interact in a sexual
situation in or this is social reciprocity, whatever. So what
do they do? They don't learn, But where do they go?
You know?
Where they go? They go online because it's so much
easier to communicate with a person when you're not face
to face and all that social stuff and online is
just a cesspool of epic proportion that there's nothing but
trouble there. You're vulnerable in any number of ways. But
it's also this idea. So now you're online, but you
have this issue. This is a second pillar. What is it?
Hyper focus areas of high interest people on the spectrum.
I think it's the way they manage anxiety. It just
becomes so interested in one thing and always into that thing.
Great online you can go as deep and as wide
as you want to go on any topic. And you
may hope that it's World War two airplanes, but a
lot of times it may be QAnon or some crazy
shit that they just keep going and going and going
and going. The last pillar is the executive functioning component.
So now you've got all this information and ideas in
your head and you don't know what to do with it,
and you come up with a dumb idea like shooting
up an energy facility or going to meet this girl
or whatever it is, and you this rigid thinking, which
is once you get this idea, it's very hard to
get out of it. You have executive functioning, which means
you can't plan and predict consequences. What happens three steps
down the road. If I do this thing and I
end up in jail for this thing, or my family
ends up devastated and bankrupt from this thing, or some child,
God forbid, ends up getting traumatized from this thing. That's
not the way the autistic brain works, and that's how
they find themselves in this terrible trouble. And guess what,
that's why the suicide rate for autistic people is off
the charts. Loneliness, rigid thinking this is a solution to
the problem. I can't think of a better one, and
then total lack of how is this going to affect
the rest of my life, my family's life, everybody? And
it's those three pillars I think explains that.
Really, Yeah, that makes total sense, and you're correct. Suicide
is the second leading cause of death among autistic people
around the world. I've spoken with many autistic people. They
definitely do not get social cues. I spoke with one
person and she was a musician. She had several people
talking to her. One guy was flirting with her, and
then her friend come up to her and said, you
knew he was flirting with you, right, And she didn't
have a clue. So how do we get the prosecutors
to understand most autistic people do not understand those social
cues like neurotypical people do. They need to understand and
have a little more empathy to help these people out
to get to a better solution for everyone.
Yeah. Yeah, and that is what I think we would
call the idea of mind blindness. It's this idea of
perspective taking. It's so central to what we do because again,
the default is, of course, you knew how this person
would feel about what you did. Let's take the child
sexual abuse material, right, It's a picture, and it's a
picture of a child being abused in unimaginable ways, and
the neurotypical goes it, looks at that picture and is
instantaneously repulsed. Because we have perspective taking, we can basically
go into the mind of that child or even that
abuser and understand how terrible that situation is. Autistic brain
can't do that. Much of what we do is education,
and there's really two ways you can educate somebody. You
can educate them with the science and the facts, the
scholarly articles, the aerodyite speeches and everything else. But me,
I'm a storyteller, and I think the more you can
just tell stories that bring this home better. Here's a
simple one. I mentioned I have a son on the spectrum.
He has a little brother who's not on the spectrum.
And you know how a little brother looks up to
big brother. There's a four year difference. And one time
little brother both into gaming, and little brother had this
really cool game and he wanted to show. He wanted
to show his older brother he was so he was
sure that his older brother would think that's cool. The
older brother looked at him blankly and said I really
don't care and walked away. The neurotypical brain looks at
that and goes, what a jerk. That was the meanest thing. Ever,
how could he do that to his little brother. But
guess what the truth is he wasn't interested, and he
just was being honest, telling him the truth, which we're
always telling well on the autism secuy were supposed to
be rule follower, we're always telling them to tell the truth.
So in his mind, he probably did a very good
thing by telling his brother I'm not interested. But how
do you think his little brother felt? It was like
he might as well have just punched him right in
the gut and he didn't know any better. But guess
what all I had to do is sit down with
him and have the conversation and help him understand they're
not irrevocably broken, They're not going to be dangerous. They're
not dangerous people. They're not people with mal intent. They
just don't into it the way we do. But once
they learn the rules of social interaction, they can manage
that just fine. That's why mahone will tell you because
there's no formal studies about this, but he keeps anecdotal
statistics on all of his cases about what is the
recidivism rate? In other words, once an autistic person realizes
how badly they deviated from the rules and norms of society,
what are the chances they're going to do it again?
And the answer is almost zero. There's literally almost zero
recidivism rate among the autistic population. They are the most
highly treatable offenders in the criminal justice system.
Yes, I've spoken with several judges about this topic. They
say the same thing. I spoke with one that he's
starting a huge facility down in Miami. He retired from
the bench and is starting this huge facility I think
two hundred and eighteen beds and is going to just
help everybody so that they don't wind up back in
front of the judges again.
Wow, for autism.
I believe it covers anyone that needs help, not one
hundred percent sure. The one thing I do know, he
says that by doing this it will keep people from
showing up in front of the judges for a second
or third or fourth time. It also contributes to saving
hundreds of thousands of dollars in taxpayers' money being in
the legal system. So if they can get it in Miami,
we should be able to find a way to make
this happen all across the country.
Yes, it's a slow slog, but I love to hear
the stories about these judges. After thirty years, I'm still
an optimist about human beings and the human spirit, and
I think fundamentally judges are trying to do the right thing.
It's incumbent upon us to give them the information they
need to make the right decision. So that goes back
to the lawyers aren't equipped to tell these stories. They
don't know you hear those stories. They're scattered all over
And then there are some prosecutors who get this. You
maybe offered diversion or better plea agreement. And there are
judges who get this, and then there are some who
just don't get it or don't care. There's legislation that's
creeping in, just in little dribs and drabs. I love
Malcolm Gladwell. He talks about the tipping point. We are
nowhere near the tipping point. I feel like we're on
the very very front end of building awareness and making widespread, lasting,
systemic change. But you have to keep pointing to those little,
small victories just for the simple fact that it validates
we're not just blowing smoke here as defense layers. This
is real. What we're telling you is real. You don't
have to take our word for it. Look at these judges,
look at this legislation. Whatever I'd like to see changes
to the federal sentencing guidelines. I have reached out to
some of these groups, and I hope that we can
spearhead that. I know there's been attempts to make changes
of federal legislation, but I think it's got to be
one step at a time, one state at a time,
one jurisdiction at a time, one judge at a time,
and eventually there will be a tipping point. And here's
a sad truth. I don't know if it's going to
be ten years from now now or twenty years from now.
I hope it's not thirty years from now. But we're
going to look back at the way we treated people
on the spectrum who found themselves in trouble and we're
going to be horrified and ashamed about it that we
didn't understand this better and we didn't understand it quicker.
Absolutely. Interestingly, the first term autism was introduced in nineteen
eleven and associated with schizophrenia. Then in nineteen forty three
it was diagnosed in children. The way that we looked
at it and treated it was not always the best.
So in the last twenty five or thirty years it
has gotten better, but we still have a long ways
to go, we really do.
So.
In closing, we've talked about several things here, which is
very important. What would you like to tell the listener
that you think is very important that they hear regarding
to what you do and what needs to be done
in the future.
I there's so much we've talked about this from the
perspective of someone who's in trouble. I think the most
important thing is part of the perspective of someone who's
not in trouble. I'm a parent of an autistic child,
and I know the horrors that await them if they
aren't given proper resources, they aren't properly supervised, if they're
left to their own devices to be online twenty four
to seven. Parents don't understand how vulnerable their children are,
and not just to being in trouble running and follow love,
but to being victimized online too. My son went to
an autism school, a high school that was created by
a woman who there were no good schools for a son,
so she made an amazing school. And I gave a
talk to the parents, just so you know, these are
the danger zones. Make sure you understand and you're on
top of this. God forbid this happens to your kid.
It's going to devastate you. You've talked to the parents
who have kids who have been in the system. I
cannot imagine the pain and trauma that they go through
every second of the day. So I gave this talk
and it was a litan of like worst case scenarios,
and I think people were interested by it. And they
were grateful for it. But I even had one parent
come to me and go so interesting, But that would
never happen to my Timmy. And guess what. A month later,
the FBI was knocking at Timmy's door because Timmy posted
something online about a pipe bomb. Now Timmy was actually
literally a rocket scientist, brilliant kid, but he built model
rockets and he would call the engines they call them
pipe bombs. Guess what when the FBI hears you talking
about explosive devices on Reddit or wherever it is, you're
getting to knock at the door. And that's the last
thing in the world that you want. I just think
the most important thing is I don't know if parents
understand how vulnerable their kids on the spectrum are. And
by the way, a lot of parents they have kids
they're struggling. They may have gotten the school psychologists to say, well,
I think they're just add they may be on the spectrum,
but you don't want that diagnosis. It's just going to
stigmatize them and they'll still get services. No, you get
the diagnosis so you can understand exactly what your child
needs and set about giving it to them. And that
is the very best way to head tragedy off at
the past.
Yeah. Absolutely, Wow. This has been great, great conversation, great information.
I really appreciate you taking the time to come on
and talk with us about this.
All right, this has been great. I so appreciate you.
It's been my pleasure. Thanks again. Thanks for taking the
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