Tony Mantor: Why Not Me the World
Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective
Fri, 04 Apr 2025
Send us a textCriminal defense attorney Elizabeth Kelley shares her expertise on representing individuals with autism spectrum disorder and mental health conditions in the justice system, revealing how these clients are often misunderstood and how proper legal representation can change outcomes.• Started career representing a client with intellectual disability who was manipulated into criminal activity• Defines mental disabilities broadly to include mental illness, intellectual disabilities, and neurological conditions like autism• Approximately half of people on the autism spectrum also have intellectual disabilities• Many autistic individuals develop depression or anxiety from years of bullying and social ostracization• Uses forensic mental health experts to evaluate clients and explain the connection between diagnosis and behavior• Emphasizes that mental disabilities are not excuses but explanations for behavior• Highlights that people with mental disabilities are more likely to be crime victims than perpetrators• Prosecutors serve as gatekeepers to the justice system through charging decisions and plea offers• Legal options like competency and insanity defenses often inadequate for autism cases• Advises families to take early legal issues seriously as warning signs• Recommends pursuing diversionary options whenever possible to avoid permanent records• Works to educate judges and prosecutors about the reality of mental disabilitiesTell everyone everywhere about Why Not Me The World, the conversations we're having and the inspiration our guests give to everyone everywhere that you are not alone in this world.https://tonymantor.comhttps://Facebook.com/tonymantorhttps://instagram.com/tonymantorhttps://twitter.com/tonymantorhttps://youtube.com/tonymantormusicintro/outro music bed written by T. WildWhy Not Me the World music published by Mantor Music (BMI)
Chapter 1: What is the purpose of the podcast 'Why Not Me? The World'?
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 Mantor. Welcome to Why Not Me? The World, Humanity Over Handcuffs, the Silent Crisis special event.
Chapter 2: Who is Elizabeth Kelly and what is her expertise?
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, and 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?
Chapter 3: How did Elizabeth Kelly begin her career in representing individuals with mental disabilities?
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.
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.
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 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.
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?
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Chapter 4: What challenges do individuals with autism face in the legal system?
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.
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.
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 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.
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.
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.
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Chapter 5: How can families navigate legal issues when their loved one has autism or mental illness?
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. With that said, what's their 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 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,
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.
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.
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.
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Chapter 6: Why are forensic mental health experts important in legal cases involving mental disabilities?
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, a school shooting. The fact of the matter is people with mental disabilities are no 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 see 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 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 particular 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.
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Chapter 7: How can the justice system improve its understanding of mental disabilities?
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.
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
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,
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 west in California.
How do we get something that's more concrete, that's 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 a 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.
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Chapter 8: What strategies can be used to educate judges and prosecutors about mental disabilities?
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.
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.
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 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 and
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.
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.
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?
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