Elizabeth Kelly
Appearances
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 streetwise into being a lookout during a string of burglaries.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 state 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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
As a practical matter, that's a low standard and most people can meet that standard. However, there is what I call a legal fiction called restoration. If a court finds that someone is not competent to proceed, then the court can order so-called restoration. So if someone has a serious mental illness, that may be relatively easy.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 can be restored.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 caseworker started referring other families to me. who had a loved one with an intellectual disability.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
It 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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
You may remember many years ago the attempted assassination of President Reagan by John Hinckley. After Mr. Hinckley was found not guilty by reason of insanity, Congress and many state legislatures acted quickly to tighten the standard for insane at the time of the act. So that's one of the reasons why it's so difficult to meet.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 and
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 believes will take that oath seriously.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
And in many cases, it indeed would be a manifest miscarriage of justice for an individual with a mental disability to be sentenced to prison.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 charged with a serious offense.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
Beautiful.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
Oh, I love doing it. Thank you. And again, I so appreciate all your postings on LinkedIn.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
Over the years, my practice has grown 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, manifests their issues in a different way.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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, schizophrenia, major depression, and also intellectual and developmental disabilities. autism spectrum disorder, fetal alcohol spectrum disorder, and intellectual disabilities. The definition is important.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
It's also important not only for Precision's 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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
There are also people on the autism spectrum who in their late teens, early 20s 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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 suggested. I have absorbed their war stories. That has all been crucial in my development.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 said, 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,
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 Dr. So-and-so, 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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
Beyond that, a client enters into a bond of confidentiality with a treatment provider that normally he does not enter into with a 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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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, a school shooting. The fact of the matter is people with mental disabilities are no more dangerous than other members of society.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 see more people with mental disabilities than therapists and doctors do in our society, as perverse as it may sound.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
It's also important to emphasize to judges that mental disabilities, whatever they may be, are not an excuse for 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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 particular individual.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 and They are the ones that extend the plea offers.
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 it a mental health court or a drug court or a veterans treatment court. That being said, it's also important to recognize that
Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
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 crime or a sexually oriented offense, if the individual is charged with an offense where there are multiple victims involved,