Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective

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and a better understanding for autism around the world.
Hi, I'm Tony Mantor. Welcome to Why Not Me The World?
Humanity over Handcuffs the Silent Crisis Special event. Today's guest
is Elizabeth Kelly, a renowned criminal defense lawyer with a
nationwide practice specializing in representing individuals with diverse issues including autism,
spectrum disorder, bipolar disorder, major depression, dementia, schizophrenia, traumatic brain
injury PTSD, and intellectual disabilities. She is licensed to practice
before the US Supreme Court has written several books lectures
across the US as well as abroad on representing people
with mental disabilities. It is an honor to have her
on the show. Thanks for coming on. Can you share
with us how your journey in this field started.
Many years ago.
I had my first client who had what we then
called mental retardation we now call an intellectual disability. He
was conned by his so called friends, who were very
street wise, into being a lookout during a string of burglaries.
I was really struck by the fact that his sense
of responsibility, his participation in these acts was very, very
different from that of the average person who is charged
with a criminal offense. I worked very closely with his caseworker.
Then his caseworkers started workering other families to me who
had a loved one with an intellectual disability. So I
started representing more people with an intellectual disability. Then I
had my first client who had a co occurring disorder,
that is to say, not only an intellectual disability, but
also a mental illness. So I started schooling myself on
mental illness. Over the years, my practice has grown, and
and so too has my knowledge of the vast array
of people with mental disabilities and the fact that every
single individual manifests their symptoms, manifest their issues in a
different way.
Since you didn't know a lot about mental health and
autism when you first started, what are some of the
things that you find they do that people mainly judges
district attorneys don't understand how do you approach that so
you can help them understand what your client's going through
so it can make a better outcome in the end
for them.
Well, first of all, Tony, I'm going to define what
I mean by mental disabilities. Mental disabilities is my global
term for mental illness. That is, conditions like bipolar disorder,
schitzophne any, major depression, and also intellectual and developmental disabilities,
autism spectrum disorder, fetal alcohol spectrum disorder, and intellectual disabilities.
The definition is important. It's also important not only for
precisions case. Many, if not most, people with mental disabilities
have a variety of different issues. So, for instance, if
you have an individual who is on the autism spectrum,
chances are very likely. In fact, we know that approximately
half the people on the autism spectrum also have an
intellectual disability.
On the other hand, there are many.
People on the autism spectrum who do not have an
intellectual disability and who, if you will, are very high
functioning in a variety of different domains. There are also
people on the autism spectrum who may, because of years
or even decades of being bullied and ostracized, suffer from
depression or anxiety. There are also people on the autism
spectrum who in their late teens early twenties begin to
manifest the symptoms of various mental illnesses like bipolar disorder schizophrenia.
That's the clarity I wanted to make for you. You
asked me how I learned and what I have learned.
I have been very lucky over the years to have
worked with some superb forensic mental health experts, that is
to say, forensic psychiatrists as well as psychologists.
I have learned from them.
I have asked them questions, I have read everything that
they have suggest tested, I have absorbed their war stories.
That has all been crucial in my development. And beyond that,
I also take the time to listen to my clients
and listen to their families, because they are the best
historians of their lives and how they probably got caught
up in the criminal justice system.
When a parent finds that their son or daughter has
a legal problem, it's a lot like when they found
that their child was autistic or had mental illness. It's
the big unknown that's very scary, and they just don't
know what to do. What do you give them for
advice When they find that they're going to be thrown
into this big scary cavern and that's called the legal system.
Well, it all depends upon where they are in terms
of diagnosis and management. Because society is becoming more cognizant
of autism spectrum disorder and other disabilities, the instruments for
early identification are available now in ways they weren't decades before.
That being said, there are still some people, even from
very highly educated families, who are not diagnosed until later
in life, sometimes after they have been caught up in
a criminal offense. The reasons for that are many, including
the fact that some people on the autism spectrum have
gotten very good at masking their symptoms. There are also
some people on the spectrum who are misdiagnosed and as
a result, they are being treated for other.
Conditions like ADHD.
They may very well have ADHD, but that doesn't get
to the real locus of their diagnosis, that is to say,
the autism spectrum.
Yes, that shows that there certainly are many layers to
figuring this whole thing out. Well, that said, what's the
first steps? What would you advise them to do to
move forward so that hopefully we can have a good outcome.
Oh what do I advise parents, Well, if their loved
one is seeing a clinician, is availing themselves of a
variety of different support systems, whether it is a residential
treatment facility, a therapist, what have you? Keep that up
if it is making a difference. Also, I advise people
if they do not have a diagnosis, then they need
a formal diagnosis and they need to start availing themselves
of various different supports.
That being.
One of the first things I do when I am
brought onto a case is I engage a forensic mental
health expert, that is to say, a forensic psychiatrist or
a forensic psychologist, depending upon the nature of the disability
or what I think the nature of the disability is.
Families often say to me, well, if fill in the
name of their loved one is already seeing doctor Sohen's show,
why do you need independent forensic examination?
The reasons are many.
First of all, it's an inherent conflict of interest for
a treating doctor to opine on issues like future dangerousness.
Beyond that, a client enters into a bond of confidentiality
with a treatment provider that normally he does not enter
into with the forensic mental health expert. Also, a forensic
mental health expert focuses on a variety of different things
when they do the evaluation. First of all, they review
all of the discovery in the criminal case. That way,
they can intelligently explain to the court the nexus between
the diagnosis and the conduct charged and perhaps the individual's
conduct during the pendency of the case. A clinician cannot
do that. Beyond that, forensic mental health experts are specifically
trained in how to work with attorneys and how to
write up reports and how to testify, whether it's at
a hearing or a trial or a sentencing proceeding.
We have so.
Many people out there around the world that just don't
get it. Unfortunately, it's not just the justice system. They
have a lack of understanding about autism and of course
serious mental health. When we have that kind of an
issue that goes here in the States and around the
world with just everyday, normal, average people, how do we
get the justice system to catch up on what these
people are going through with the struggles that they face
on a daily basis.
It's not just lack of understanding, Tony, it's stigma, it's misconception.
Sometimes based on personal experience. As you know, there is
a tremendous stigma for instance, major mental illness. The stigma
always increases after there is a tragedy, for instance's school shooting.
The fact of the matter is people with mental disabilities
are normal, more dangerous than.
Other members of society.
In fact, if they receive the appropriate treatment, they will
be productive members of our society, or at least law
abiding members of our society. We also know that people
with various mental disabilities are more likely to be victims
of a crime than they are to be perpetrators of
a crime. In terms of educating judges as well as
prosecutors and other criminal defense lawyers, it is a very
long and complicated process. It takes time, and it takes patience.
Let's just focus for.
A minute on judges.
It's important to emphasize to judges that they probably seem
more people with mental disabilities than therapists and doctors do
in our society. As perverse as it may sound, it's
also important to emphasize to judges that mental disabilities, whatever
they may be, are not an excuse for the conduct
that may have been committed, but rather it's an explanation
actual innocence is a completely different issue, because it may
very well be that the individual with a mental disability
did not do what they are charged with, and it
could very well be that a strong mental health evaluation
can negate the element of intent that's required by the
statute under which that person is charged. But it's important
for the criminal defense lawyer to explain to the court
that these are all the complexities which make up that
partearticular individual. These are all of the issues that probably
made that individual vulnerable to committing that offense. These are
all of the vulnerabilities that are important to manage in
order that that person will be successful on probation. And
these are all of the different vulnerabilities that will make
that client victimized or targeted or disciplined should that individual
be sent to prison.
I think you brought up a great point with the
definition of the terms that we're using with the innocence
and of course the varying degrees of that, how do
we paint a better picture to the judges and of
course the prosecutors for that Some prosecutors are looking for
the win, and the judges are trying to be as
impartial as they can to create that verdict. How do
we get that definition of what you just said to
the minds of the prosecutors so they can have a
little bit more empathy towards the accused with hopefully a
better outcome rather than a negative one.
Where they could be facing incarceration.
I'm glad you raised the issue of the prosecutor, because
the prosecutor or the US attorney if one is in
the federal system, are effectively the gatekeepers of the criminal
justice system. They are the ones that make the charging decisions.
They are the ones that extend the plea offers. They
are also the ones who sometimes have veto power as
to whether or not an individual can be diverted into
some type of special program, be a mental health court,
or a drug court or a veteran's treatment court. That
being said, it's also important to recognize that a prosecutor's flexibility,
if you will, is sometimes limited or at least initially
constrained by what that client is charged with. If, on
the other hand, the client is a repeat offender, the
client is charged with a violent climb or a sexually
oriented offense. If the individual is charged with an offense
where there are multiple victims and or families of the victims,
it becomes a much more complicated conversation. That is when
the criminal defense lawyer should emphasize what I said a
few moments ago in the context of the judge, that
the mental disability or the mental disabilities are not an
excuse for the conduct, but rather an explanation that should
lessen the client's responsibility or culpability and in turn make
that client eligible for some sort of penalty that is
less onerous than that which was originally contemplated by the charge.
We have different areas of the country that look at
things completely different. That could be Florida, Connecticut, Michigan, or
even out western California. How do we get something this
more concrete, this more of a national standard that gives
the opportunity for people to change some things a little
bit more, makes it a little bit less complex, even
though it's going to stay as complex as it probably is.
Yet it makes it.
A little easier for people like yourself to talk with
the prosecutor. That gives the opportunity for compromise, allowing a
lighter sentence and giving the opportunity for that person to
be defended a little bit easier. And then hopefully giving
them a better life because of what you did.
Well, you're absolutely right that in this country we have
a patchwork of different laws. So, for instance, in one
state the registration for sexually oriented offenses is completely different
than that of another state, and that raises a host
of different issues, particularly in terms of inequities. You may
have someone who in one state is placed on a
sex offender registry for life with no possibility of early termination,
and you may have someone in another charged with the
same offense who is only on the registry for a
limited amount of time. That being said, part of the
challenge is that the current boxes, the current options defense
attorneys have are limited.
There is competency, there is sanity.
In some but not all jurisdictions, there's diminished capacity. Competency
to stand trial is a very low standard, and it
is a nationwide standard. It requires a couple of different things.
That the accused understand what's going on, and that the
accused can assist their lawyer in their own defense. As
a practical matter, that's a low standard and most people
can meet that standard. However, there is what I call
legal fiction called restoration. If a court finds that someone
is not competent to proceed, then the cord can order
so called restoration. So if someone has a serious mental illness,
that may be relatively easy. Give the individual the medications
that he or she needs at the appropriate time, in
the appropriate dosage, Provide that person with structure, and if
that person was not on their meds at the time
of the alleged act, after a period of proper treatment,
they will be back to their baseline state. On the
other hand, if you have someone with dementia, there's no
way they could be restored. They're probably only going to
get worse. On the other hand, you have sanity at
the time of the act or insanity at the time
of the act. For someone with autism spectrum disorder, that
is a complete misnomer because, as you know Tony, autism
spectrum disorder is a neurological condition, it's not a mental illness,
so insanity is completely inappropriate. That might be the only
viable option in a jurisdiction if the forensic mental health
report comes back and does not help negate an element
of the statute. Insanity, contrary to popular belief.
Is used very very rarely in.
The criminal justice system for a variety of different reasons,
not the least of which is that experienced criminal defense
lawyers know that it is a very high standard to meet.
You may remember many years ago the attempted assassination of
present Sident Reagan by John Hinckley. After mister Hinckley was
found not guilty by reason of insanity, Congress and many
state legislatures acted quickly to Titan the standard for insane
at the time of the act. So that's one of
the reasons why it's so difficult to meet. So when
a family comes to me and they say, well, he
didn't know what he was doing, that may very well
be true, but that's not the statutory definition of insanity.
Now, many times, I'm sure you will have people that
have co occurring situations going on. They could be autistic, ADHD, autistic, bipolar.
There are just so many different variables that could be
happening at any given point of time. Now, as a
defense attorney, how do you talk with the prosecution to
give them the understanding that there are several different and
things that are happening here which might have led to
the situation that they're facing today in court.
Just take the.
Time to have an intelligent conversation, and it may very
well be that you need to bring in forensic mental
health expert or team of experts to do a presentation.
You should work very carefully to help them craft a
report that will be meaningful to the prosecutor, share the
appropriate parts of that report with the prosecutor, and try
to persuade them that this is the reality of the situation.
Prosecutors take an oath, they have an ethical obligation to
do justice. It is always hoped that the prosecutor will
take that oath seriously, and in many cases it, in deed,
would be a manifest miscarriage of justice for an individual
with a mental disability to be sentenced to prison.
We've talked about so many great things, and I'm sure
there's so many things that we could have talked about.
What would you like to tell people in closing that
they need to hear that you feel is very important
for them to hear in case they ever might see
themselves in a situation where the legal system might be
part of their life going forward.
I would say a few different things. First of all,
take it seriously. If you are a parent your loved
one has been charged with a quote unquote low level crime.
That should be a wake up call.
Thinkers are not necessarily going to get any better. In fact,
they may get worse unless you take significant action to
get your loved one the type of management they need.
The condition is only going to escalate. Beyond that, do
all you can to work with your lawyer to negotiate
something that perhaps is a diversionary option, something that will
not appear on the record, something that has as few
consequences as possible, because if, Gosh forbid, your loved one
is charged with a subsequent offense, that prior offense is
going to impact your attorney's ability to bargain for a
lesser charge.
Beyond that, never give up.
It could very well be that your loved one, first
time out of the box, is charge charged with a
serious offense. It could very well be that now, despite
all your previous efforts, your loved one has been charged
with multiple offenses over the years, and this time it
is hugely significant. Do all you can to fight the charges. Sometimes,
admittedly you will have reached at the end of the line,
but there is nothing else to do. Your attorney may
be faced with a procedural wall, and indeed there is no.
Way around that wall.
But sometimes with patience and creativity, there is a way
for that attorney, with the cooperation of the family and
the client, and some good forensic mental health experts and
perhaps some other kinds of experts to explore different avenues
for a proper resolution of this matter.
Yeah, that's great.
Now I've got one last question or statement in question.
I spoke with a judge that told me if the
defense and the prosecution could put their heads together, compromise,
come up with a solution that could help that person,
either with meds or whatever the case may be, that
this just might lead to where he would not see
that person a second time.
Beautiful.
What's your opinion on how we get that message across
the country so that people can have more empathy towards
people like this so we can divert that incarceration.
The judge hit the nail on the head, that is
to say, with proper support, with proper management, with proper understanding,
a person with a mental disability can be successful on
probation or some sort of other diversionary option and not
be a danger to themselves or the community.
This has been a great conversation with a lot of
great information.
Thanks for coming on. I really appreciate it.
Oh I love doing it. Thank you, and again, I
so appreciate all your postings on LinkedIn.
It's been my pleasure. Thanks again.
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