Sixth Annual Full Ethics and Elimination of Bias Training Not Just for Public Interest Attorneys. Original Broadcast 5/25/2016

Transcription

1 Representing Clients on the Autism Spectrum Presented by Jason Schellack, Esq. For HOME Line s Sixth Annual Full Ethics and Elimination of Bias Training 2015 Autism Advocacy & Law Center, LLC OVERVIEW What is Autism? Effective Communication with clients with ASD Rule 20 Examinations Case Law Review WHAT IS AUTISM? The Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5) categorizes Autism as a Neurodevelopmental Disorder. Neurodevelopmental disorders are a group of conditions with onset in the developmental period. Neurodevelopmental disorders are characterized by developmental deficits that produce impairments of personal, social, academic, or occupational functioning. 1

2 DIAGNOSTIC CRITERIA Three main areas: Persistent deficits in social communication. Poorly integrated verbal/nonverbal communication Abnormalities in eye contact/body language Persistent deficits in social interaction. Failure to initiate or respond to social interactions Difficulties in social-emotional reciprocity and understanding relationships. Restricted, repetitive patterns of behavior, interests, or activities. Insistence on sameness and adherence to routines Highly restricted, fixated interests Hyperactivity to sensory input EARLY SIGNS Parents/caregivers often report early signs of autism: Delays in language development Loss of language development Sleep problems Eye contact Repetitive behaviors/perseveration Early diagnosis is helpful! School can t diagnose! Medical professionals can diagnose MYTHS ABOUT AUTISM Caused by a cold mother or poor parenting. Best evidence is that signs of autism are present even in the womb. People with autism don t have an interest in developing strong, interpersonal relationships. They do! People with autism have savant-like tendencies. There is only one Rain Man and one Temple Grandin! 2

3 CHALLENGES FACING INDIVIDUALS WITH AUTISM Misdiagnosis/late diagnosis Social Isolation Socially vulnerable Bullied/Bully Conflict at home parents often disagree about diagnosis and treatment At risk for involvement with criminal justice system EFFECTIVE COMMUNICATION Slow down! Often people with ASD have processing speed difficulties, especially when under stress. There is often discrepancy between verbal comprehension and processing speed. Often, people with ASD have learned to mask well. I generally dedicate twice as much time for individuals with ASD. EFFECTIVE COMMUNICATION, CONT. Ask client to repeat back information to monitor comprehension. Break complicated tasks/concepts into smaller parts. Provide visual outlines of information, i.e. statement of rights and plea petitions. Preview events with client so they know what to expect: initial hearing, omnibus hearing, trial. Provide script to client in advance. Practice court appearances with client, much like a moot court. 3

4 OUTSIDE DOCUMENTATION REGARDING DISABILITY Individualized Education Program (IEP) Special Education Evaluation/Reevaluation Schools can t diagnose! They can only determine whether students qualify for special education services under certain categories, i.e. ASD, DD, SLD Neuropsychological Evaluation Performed by qualified psychologist. Only physicians and psychologists can diagnose ASD. Functional Behavior Assessment Typically done through school COLLATERAL CONTACTS Minnesota Rule of Professional Conduct Rule 114(b): When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client s own interest, the lawyer may take reasonable protective action, including consulting individuals or entities that have the ability to take action to protect the client. COLLATERAL CONTACT, CONT. Minnesota Rule of Professional Conduct Rule 114, cmt 2: The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Minnesota Rule of Professional Conduct Rule 114, cmt 4: If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. Client may be under guardianship. 4

5 MINNESOTA RULE OF CRIMINAL PROCEDURE A defendant is incompetent and must not plead, be tried, or be sentenced if the defendant lacks the ability to: (a) rationally consult with counsel; or (b) understand the proceedings or participate in the defense due to mental illness or deficiency. RULE 20.01, CONT. IQ and diagnoses alone are RARELY enough to perform a valid Rule 20 Examination. Individuals with ASD often have average to aboveaverage IQ. Scope of a Rule 20 Examination should go beyond IQ and diagnostic impression, and also include functional behavior testing. RULE 20.01, CONT. Cautionary Statement for Forensic Use of DSM-5 DSM-5 When DSM-5 categories, criteria, and textual descriptions are are employed for forensic purposes, there is a risk that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis... [A]dditional information is usually required beyond that contained in the DSM-5 diagnosis, which might include information about the individual s functional impairments and how these impairments affect the particular abilities in question. 5

6 RULE 20.01, CONT. Additional testing metrics that will help Rule 20 examiners evaluate competence: Vineland Adaptive Behavior Scales Measures adaptive functioning, aka skills necessary for daily living Surveys provided to parents/care-givers to fill out Areas assessed: Communication, Daily Living, Skills, Communication Behavior Assessment System for Children (BASC) Parent/Caregiver completed inventory Identifies social, emotional, and behavioral strengths and limitations exhibited by individuals within the same age range Complex Trail Making Test (CTMT) Measures motor speed, planning, and ability to shift cognitive sets Uses written tasks involving words, numbers, dots VINELAND For a client with an average IQ!! BASC 6

7 CTMT RULE 20.01, CONT. Oftentimes, individuals with ASD are able to understand the legal proceedings. However, due to deficits or impairments in functional behaviors, individuals with ASD may not be able to: Rationally consult with counsel Participate in strategizing their defense Examples: Anxiety so high unable to enter the court room Unable to attend to longer tasks, like voir dire Unable to testify due to anxiety or language impairment MINNESOTA RULE OF CRIMINAL PROCEDURE It is a defense to a crime if: [B]ecause of mental illness or deficiency, the defendant, at the time of committing the alleged criminal act, was laboring under such a defect of reason as not to know the nature of the act or that it was wrong. 7

8 RULE 20.02, CONT. Individuals with ASD may experience severe episodes of dysregulation. These are often referred to by parents and teachers as meltdowns, tantrums, or outbursts. Dysregulation means that the individual is unable to regulate (control) their emotional response to a situation, oftentimes a trigger situation. Dysregulation can cause an individual with ASD not knowing the nature of a criminal act or that it was wrong. RULE 20.02, CONT. What?? Psychotic disorder is NOT a requirement under Mental illness OR mental deficiency. Rule does not limit the source of dysregulation!! RULE 20.02, CONT 8

9 RULE 20.02, CONT Blind rage and extreme emotional arousal = emotional dysregulation. For the purposes of Rule 20.02, ASD may be considered a mental deficiency. The defendant may have cognitive deficits (ability to regulate emotions and behaviors) that are not present in neurotypical peers. REQUESTING RULE 20 EXAMINATIONS If requesting a Rule 20.01, always ask for a Rule as well. We are not the mental health experts qualified to render opinions! I have been surprised! Provide as much collateral information as possible: Medical records School/IEP records Neuropsychological evaluations Prior Rule 20 examinations Contact info for physician, pediatrician, therapist, social worker, special education case manager CASE LAW REVIEW Commonwealth v. Jones, 26 Mass.L.Rptr. 567 (Mass. 2010) Not Reported Issue: Whether the defendant was competent to stand trial for first degree murder charge after first being found competent and then subsequently being found incompetent. Holding: Yes, the defendant was competent to stand trial. Even though he undoubtedly was impaired and had substantial cognitive and behavioral impairments, he was capable of rational calculation in his work and personal life, and, with persistence, was capable of understanding the proceedings and assisting with his defense. There is a compelling public interest that one accused of being responsible for crime be tried. That interest could not be more compelling than where the crime at issue is first degree murder. Id. at *6. Job as dishwasher for three years - impressed co-workers 9

10 Commonwealth v. Jones, 26 Mass.L.Rptr. 567 (Mass. 2010) Not Reported Review of Evaluations: Diagnoses pervasive personality disorder, autism spectrum disorder, Asperger s disorder. Impressions severe and pervasive impairment with social interaction and communication; low IQ Received SSI and also received special education services during school Defense Examiner multiple examinations; highly regarded examiner Neurological deficits prevent defendant from defending himself; little functional understanding of charges and nature of trial. Condition is easy to miss for those who are not professionals. State Examiner Unable to give an opinion intentionally acting like he understands less than what he does Previous examination competent Examiner didn t testify State v. Shields, 593 A.2d 986 (Del. 1990). Issue Whether the defendant was competent to stand trial for two counts of first degree murder, one count of unlawful sexual penetration, and one count of unlawful sexual intercourse. Holding Yes, the defendant was competent to stand trial. Even though seriously impaired, the defendant possessed the requisite mental capacity to appreciate his presence in relation to time, place, and things, grasped the seriousness of the charges, understood the role of the judge, prosecutor, defense attorney, and jury, and had a sufficient relationship with his attorney. Dusky Test Present ability: 1) consult with defense counsel; 2) assist with defense; and 3) understand nature of proceedings. State v. Shields, 593 A.2d 986 (Del. 1990). Review of Evaluations Well-documented history throughout defendant s lifetime Numerous diagnoses mental retardation, ADHD, learning and language disorders, developmental disorders, etc. Numerous admissions to treatment facilities Administered tests throughout his lifetime always borderline performance Wechsler Adult Intelligence Scale Verbal IQ: 68 (Defective) Performance IQ 83 (Dull Normal) Full Scale IQ: 73 (Borderline) Numerous examiners conducted multiple examinations no conclusive opinion regarding defendant s competency. Court personally interviewed defendant - The Court was struck by the appropriate responsiveness of the defendant to overall questioning. Id. at

11 In re the Matter of Erick B., 4 Misc.3d 202 (N.Y. 2004) Issue: Whether the defendant was competent to stand trial and proceed in the juvenile delinquency proceeding. Holding: No, the defendant was not competent to stand trial. Due to his neurological deficits, the defendant was unable to understand the judicial system and the adversarial process, develop a working relationship with his attorney, and comprehend his attorney s advice to make an informed decision. Dusky Test: 1) consult with defense counsel; 2) assist with defense; and 3) understand nature of proceedings In re the Matter of Erick B., 4 Misc.3d 202 (N.Y. 2004) Review of Evaluations Diagnoses autism spectrum disorder, borderline intellectual functioning, pervasive developmental disorder, mild mental retardation, Asperger s syndrome, psychotic disorder. Impressions perceptual deficits, cognitive limitations, language comprehension and communication difficulties, limited awareness of social conventions, disorganized though processes, difficulty forming social relationships Three examiners conducted full competency analyses unanimous opinion that the defendant was not competent to stand trial. Defense attorney voiced concerns about his inability to interact and communicate with her Two doctors submitted reports that they did not believe defendant was competent State v. Smith, 982 So.2d 756 (Fl. Ct. App. 2008). Issue: Whether the defendant was competent to stand trial for burglary charges. Holding: No, the defendant was not competent to stand trial. Due to the defendant s diagnoses of mental retardation, he was not competent to stand trial and would likely never regain competency to stand trial. Florida Statute (1) the charges against any defendant found to be incompetent to proceed due to retardation or autism shall be dismissed if the defendant remains incompetent to proceed within a reasonable time after such determination, not to exceed 2 years. 11

12 State v. Smith, 982 So.2d 756 (Fl. Ct. App. 2008). Review of Evaluations Diagnosis mental retardation Three evaluators determined the defendant was incompetent to stand trial due to his diagnoses of mental retardation. The defendant was re-evaluated the following year and again found incompetent to stand trial. Counsel stipulated to reports and diagnosis of mental retardation. Mental retardation and autism are generally life-long conditions which make it unlikely that a defendant will ever regain competency to stand trial. Why this case is important Florida is one of the few states that revised statutes to specifically address autism In the Matter of the Welfare of D.L.H., 2009 WL (Mn. Ct. App. 2009). Facts: D.L.H. became dysregulated agitated and grabbed his mother s hair. Mom called police. Issue: Whether their was a sufficient basis to establish that D.L.H. had been restored to competency prior to being found guilty for making terroristic threats and second degree assault. Holding: No, there was not a sufficient basis to establish that D.L.H. had been restored to capacity because the evaluator submitted a single, one-page report that failed to address whether D.L.H. had developed a sufficient understanding of criminal proceedings or skills that would allow him to consult with an attorney and participate in his defense. Reversed and remanded. In the Matter of the Welfare of D.L.H., 2009 WL (Mn. Ct. App. 2009). Review of Evaluations Diagnosis an autism spectrum disorder. Impressions able to understand the nature of his acts and that acts were wrong, but he could not participate in his defense or consult with his counsel. Evaluator s report consisted of 29 pages of single spaced type that was based on five interview sessions with D.L.H., 4 interview sessions with D.L.H. s mother, psychological testing, court documents, and D.L.H. s mental health and educational records. Found to be incompetent Court ordered Examiner to continue working with D.L.H. to restore competency. After only 15 hours of working with D.L.H., Examiner submitted a single, 1-page report that D.L.H. was now competent failed to address Dusky factors. 12

13 THANK YOU! Questions? Feel free to reach out!! Jason Schellack, Esq (o) 13