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Written by Paige Hathaway, L’26<\/strong><\/p>\n On September 17, 2024, Robert Robertson petitioned the Texas Governor and the Texas Board of Pardons and Paroles for commutation of his death sentence.[1] While the basis for the petition was grounded in the growing discreditation of Shaken Baby Syndrome, the originally-diagnosed cause of his daughter\u2019s death, Robertson\u2019s lawyers assert that his conviction was wrongful for an additional reason: Robert Roberston is autistic.[2]<\/p>\n Robertson was diagnosed with Autism Spectrum Disorder (ASD) in 2018, nearly two decades after he was convicted for his daughter\u2019s death.[3] Within the realm of the criminal penal system, mental health and developmental disabilities are often studied and analyzed through the context of their import regarding a defendant\u2019s culpability. Robertson\u2019s lawyers, however, are not arguing that his autism rendered him less culpable.[4] Rather, they argue that the basis for his conviction was rooted in a fundamental misunderstanding and misinterpretation of Robertson\u2019s behavior, and that the behaviors the judge, jury, and law enforcement officers considered evidence of Robertson\u2019s guilt were simply manifestations of common autistic traits.[5] Unfortunately, Robertson\u2019s story is not an anomaly.<\/p>\n Due to the recency of the medical community\u2019s understanding and classification of ASD, empirical studies focused specifically on the intersection of ASD and the criminal penal system are in their infancy.[6] The available studies have, however, yielded consistent results that highlight several key concerns. Although there are \u201chundreds of genes related to ASD but not a clear specific single one,\u201d and \u201cthe profiles [of those diagnosed] [are] not consistent,\u201d[7] both the diagnostic criteria and attendant studies have shown that despite the variations in manifestation between individuals, there are several \u201ccore features of [ASD], including social and communication differences, restrictive and repetitive interests, and sensory sensitivities.\u201d[8] These core features \u201ccan place individuals at increased risk for criminal justice system (CJS) interactions,\u201d all of which play a significant role during an autistic individual\u2019s initial contact with police, police interrogations, and criminal trials.[9]<\/p>\n Contact with Law Enforcement<\/strong><\/p>\n Current research indicates that autistic individuals experience the criminal justice system at high rates.[10] These encounters can happen for any number of reasons, but often the encounters are the result of the conflation between suspicious behaviors and autistic behaviors. A police officer is entitled to seize a person when, \u201cin light of his experience,\u201d he can \u201creasonably conclude\u2026that criminal activity may be afoot.\u201d[11] This conclusion can be based solely on the officer\u2019s \u201cobserv[ation] [of] unusual conduct,\u201d[12] like a person\u2019s \u201cevasive behavior,\u201d[13] \u201cfail[ure] to make eye contact,\u201d[14] or appearing \u201cunresponsive.\u201d[15] When an officer concludes that criminal activity may be afoot based on such behavior, the officer can then seize the person to check for weapons.[16] This suspicion-based seizure is known as a Terry <\/em>stop. The justification for Terry<\/em> stops is the ostensibly limited nature of such stops: a police officer should only seize a person until the seizure either reveals a weapon or dispels the suspicion that a weapon is present.[17] Even the briefest Terry<\/em> stop, however, involves physical contact. Many people on the ASD spectrum experience heightened sensitivity to touch, or hypersensitivity,[18] and in some cases even the briefest physical contact can \u201cdrive a disabled person to become aggressive out of anxiety, or meltdown.\u201d[19] When that contact is initiated by a police officer, it can easily \u201clead to escalation\u201d or \u201cexacerbate the crisis.\u201d[20] Most police officers are not trained to handle or anticipate the needs of those with ASD, and both officers and autistic individuals have voiced frustration at the lack of instruction.[21]<\/p>\n This risk is far from hypothetical. In Arizona, a fourteen year old boy was stopped in a park by a police officer who, after driving by and seeing the young boy raise his hands to his mouth several times, thought the boy was inhaling illegal substances.[22] The officer approached the boy and asked him what he was doing and why he was \u201cbouncing that way.\u201d[23] The boy answered that he \u201cwas stimming\u201d and showed the officer a piece of string that he had been holding and periodically bringing up to his face.[24] The officer then asked if the boy had any identification, and the boy answered \u201cno,\u201d and began to walk away.[25] The officer grabbed the boy by the arm, and the encounter escalated to the point that the officer put the boy in handcuffs.[26] The boy\u2019s caregiver, who arrived just moments later, asked the officer: \u201cSo you drove by, and you saw him stimming and you thought he was on drugs?\u201d[27] The officer responded affirmatively.<\/p>\n Police Interrogations<\/strong><\/p>\n As of 2016, one in five people on the autism spectrum had been questioned by the police by the time they were in their early twenties.[28] In the context of police interrogations, most studies concerning the vulnerabilities of certain individuals have focused on those with intellectual disabilities or impaired mental states.[29] Although roughly 35% of individuals with ASD are also intellectually disabled, most autistic people are not.[30] Because the majority of autistic individuals have an IQ over 70, some of those individuals \u201cmay not necessarily be recognized as immediately vulnerable by the police, by virtue of having an apparently competent use of language and presenting as intellectually able.\u201d[31] Intellectual ability and language mastery do not render autistic detainees less vulnerable or susceptible in interrogations, as \u201c[b]y definition, this group will have difficulty decoding aspects of social interaction, and consequently in using this information to inform their own [behavior] \u2013 particularly those aspects involving non-verbal means of communication.\u201d[32] With a predisposition for avoiding both conflict and confrontation, people with ASD \u201cmay respond compliantly to the requests or suggestions of [officers], despite not necessarily agreeing,\u201d and the \u201ctendency to respond in this way may, in some circumstances, may disadvantage a suspect [and] could lead to a statement that is erroneous and self-incriminating.\u201d[33]<\/p>\n Behavior as Evidence in Trial<\/strong><\/p>\n The consequence of these interrogative vulnerabilities can lead to official charges when individuals with ASD \u201cmisunderstand their legal rights and the implications of what they say to the police.\u201d[34] The vulnerabilities present during initial police encounters and interrogations compound at trial, where a defendant may continue to misunderstand his rights and\/or misinterpret questions asked during direct and cross examination.[35] Additionally, an autistic defendant may be prejudiced by the reality that \u201c[a]typical behavior and the communication style of autistic people may be misinterpreted by the police, legal team, jurors and the judge.\u201d[36] Those exact misinterpretations may, like in Robertson\u2019s case, lead a fact-finder to conclude that a defendant is guilty simply because he acted in an atypical manner.[37] When \u201cthe responsibility is placed on the defendant themselves to communicate effectively with different people and provide evidence in court under stressful conditions, then an autistic person may be at a significant disadvantage without adjustments.\u201d[38]<\/p>\n An autistic defendant\u2019s in-court behavior is not the only risk posed to their trial. When reviewing whether a defendant voluntarily waived their Miranda rights, for example, a court considers the mental capacity of the defendant as part of its analysis of the \u201ctotality of the circumstances\u201d surrounding the alleged waiver.[39] In most cases, that consideration is a mere question of the person\u2019s intellectual capacity,[40] which is often a separate consideration from their autism entirely.[41] A court can consider a defendant\u2019s disabilities as well, but will often not do so if those disabilities are not officially diagnosed.[42] Even if an official diagnosis exists, a defendant must proffer the effect of that disability on their waiver.[43] An ASD diagnosis can cost anywhere from $2,000 to $5,000, and most insurance plans do not cover the cost of an ASD diagnosis. [44] Even those who could afford a diagnosis may never have the opportunity to pursue a diagnosis, because \u201c[t]he needs of autistic individuals who do not have a learning disability may more likely go unidentified and unmet if they have fluent language and average-range intellectual ability[, and] [i]t is also these individuals who tend not to be identified as autistic in childhood.\u201d[45] A defendant without an official diagnosis can attempt to introduce the testimony of those who know them well enough to attest to their behaviors or mental state, but often such testimony is considered too attenuated from the circumstances and rendered neither relevant nor admissible.[46]<\/p>\n Although no amount of accommodations will come close to curing the multifaceted systemic inequities in the criminal justice system, Rachel Slavny-Cross and her co-authors identified that autism-awareness and accommodation trainings for both law enforcement and the judiciary, such as the utilization of screening tools, instructions to jurors regarding a defendant\u2019s in-court communication and behavior, and autism-aware advocates, could positively impact the current state of the intersection of autism and the criminal justice systems.[47] Research has shown that \u201cproviding mock jurors with diagnostic information about an autistic witness affected credibility ratings.\u201d[48] If more legal advocates are trained or \u201chave enough experience to identify social and communication difficulties,\u201d they can \u201cpromptly seek an autism assessment for the defendant.\u201d[49] Such advocacy will be particularly beneficial to indigent defendants, who, due to a plethora of other systemic inequalities and disadvantages, never could have received an official assessment in school or on their own.<\/p>\n Because no amount of training can substitute for the experience of actually knowing and identifying the social and communication difficulties of autistic defendants, the legal profession can play a significant role in safeguarding the rights of autistic people by embracing autistic students and practitioners. The job of a trial lawyer is to zealously advocate for the client, and to do so by telling the client\u2019s story passionately and persuasively.<\/p>\n Judge Mark Bennett, after over twenty years sitting on the federal bench, wrote about eight core characteristics of great trial lawyers.[50] According to Judge Bennett, great trial lawyers exhibit \u201cwillingness to put in great amounts of time and effort,\u201dare not \u201ceasily deterred or discouraged by early setbacks or failures,\u201d \u201cthink deeply and prepare diligently enough to become great cross-examiners,\u201d \u201cthink[] of every detail,\u201d \u201clisten carefully to the question asked,\u201d \u201cdo not fail to cite non-controlling, adverse authority\u201d or refrain from objecting \u201ceven when they know the objection would be sustained,\u201d\u00a0 and, above all, \u201cintuitively understand that storytelling is a very powerful form of communication.\u201d[51] Autistic people exhibit these traits as exemplary as any lawyer.[52] Attorney Jonathan Andrews credits his autism for many of his strengths as an attorney, like his \u201cstrong focus and determination to learn as much as possible about a subject (a very useful skill in law, and particularly litigation), [his] loyalty, and [his ability] to approach topics from different angles and add diversity of thought to discussions.\u201d[53] Shain Neumeir, a solo practitioner from Massachusetts, shares that skilled memorization, another common trait among those with ASD, has been a tremendous asset in their practice: \u201cI have memorized and know how to apply information that other people apparently don\u2019t give enough attention to.\u201d[54] In the courtroom, Neumeir applied their memorization skills to studying facial expressions and \u201chow they should be interpreted,\u201d which gives them a \u201cpretty good sense of how someone will react to a question before asking it in court.\u201d[55] To support autistic students and prospective students, \u201cadministrators should hire and retain more faculty who have had marginalized experiences, including individuals who are openly disabled,\u201d[56] and celebrate and encourage the diversity of experience and knowledge of autistic people.<\/p>\n <\/p>\n Stock Photograph of Fingers Tapping on a Table<\/em>, in People<\/em>, Envato.com (last accessed Nov. 18, 2024) https:\/\/elements.envato.com\/hand-nervously-tapping-on-table-and-pointing-with–EBJSVD2<\/p>\n [1] Maurice Chammah, Robert Roberson\u2019s Death Penalty Case Shows How Justice System Fails People With Autism<\/em>, Marshall Project (Sept. 18, 2024), https:\/\/www.themarshallproject.org\/2024\/09\/18\/texas-autism-death-penalty-roberson<\/p>\n [2] Id<\/em>.<\/p>\n [3] Id<\/em>.<\/p>\n [4] Id<\/em>.<\/p>\n [5] Id<\/em>.<\/p>\n [6] The medical understanding of ASD has changed dramatically in the seventy years since it made its diagnostic appearance Sobh Chahboun, Frode Stenseng, and Alexander G. Page, The Changing Faces of Autism: The Fluctuating International Diagnostic Criteria and the Resulting Inclusion and Exclusion\u2014A Norwegian Perspective<\/em>, 13 Frontiers in Psychiatry, July 2022, at 1, https:\/\/pmc.ncbi.nlm.nih.gov\/articles\/PMC9365987\/pdf\/fpsyt-13-787893.pdf<\/a>. It was not until 2013 that the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), reclassified ASD as \u201ca spectrum varying in severity and functioning\u201d that could no longer be assessed on a purely categorical scale. Id<\/em>.<\/p>\n [7] Sobh Chahboun, Frode Stenseng, and Alexander G. Page, The Changing Faces of Autism: The Fluctuating International Diagnostic Criteria and the Resulting Inclusion and Exclusion\u2014A Norwegian Perspective<\/em>, 13 Frontiers in Psychiatry, July 2022, at 1, https:\/\/pmc.ncbi.nlm.nih.gov\/articles\/PMC9365987\/pdf\/fpsyt-13-787893.pdf<\/a><\/p>\n [8] Dylan S. Cooper, et. al., Policy Gaps and Opportunities: A Systematic Review of Autism Spectrum Disorder and Criminal Justice Intersections<\/em>, Autism, Vol. 26(5), 1014-1031 (2022).<\/p>\n [9] Id<\/em>.<\/p>\n [10] Id<\/em>.<\/p>\n [11] Terry v. Ohio, 392 U.S. 1, 30 (1968)<\/p>\n [12] Id<\/em>.<\/p>\n [13] Illinois v. Wardlow, 528 U.S. 119 (2000)<\/p>\n [14] State v. Ford, 445 S.W.3d 113 (E.D. Mo. App. 2014)<\/p>\n [15] State v. Nguyen, 878 P.2d 1183, 1187 (Utah App. 1994)<\/p>\n [16] Terry v. Ohio, supra <\/em>at 30.<\/p>\n [17] Id<\/em>.<\/p>\n [18] Sobh Chahboun, Frode Stenseng, and Alexander G. Page, The Changing Faces of Autism: The Fluctuating International Diagnostic Criteria and the Resulting Inclusion and Exclusion\u2014A Norwegian Perspective<\/em>, 13 Frontiers in Psychiatry, July 2022, at 1, https:\/\/pmc.ncbi.nlm.nih.gov\/articles\/PMC9365987\/pdf\/fpsyt-13-787893.pdf<\/a><\/p>\n [19] Alisha C. Salerno-Ferraro & Regina A. Schuller, Perspectives from the ASD Community on Police Interactions: Challenges & Recommendations<\/em>, 105 Research in Developmental Disabilities, October 2020 at 1, 4https:\/\/www.sciencedirect.com\/science\/article\/pii\/S0891422220301621<\/a><\/p>\n [20] Id<\/em>.<\/p>\n [21] Id<\/em>.<\/p>\n [22] Leibel v. City of Buckeye<\/em>, 556 F.Supp.3d 1042 (D. Ariz. 2021).<\/p>\n [23] Id.<\/em><\/p>\n [24] Id<\/em>.<\/p>\n [25] Id<\/em>.<\/p>\n [26] Id<\/em>.<\/p>\n [27] Id<\/em>.<\/p>\n [28] Julianna Rava, et. al., The Prevalence and Correlates of Involvement in the Criminal Justice System Among Youth on the Autism Spectrum<\/em>, J. Autism Dev. Disord., Vol. 47, 340-346 (2017).<\/p>\n [29] Alice S. North, et. al., High Functioning Autism Spectrum Disorders: An Investigation of [30] Dylan S. Cooper, et. al., supra<\/em>.<\/p>\n [31] Id<\/em>.<\/p>\n [32] Id<\/em>.<\/p>\n [33] Alice S. North, et. al., supra<\/em>, at 330.<\/p>\n [34] Rachel Slavny-Cross, et. al., Autism and the Criminal Justice System: An Analysis of 93 Cases<\/em>, Autism Rsch., Vol. 15, 904-914 (2022).<\/p>\n [35] Id<\/em>.<\/p>\n [36] Id<\/em>.<\/p>\n [37] The State of Texas is scheduled to execute Robert Robertson on October 17, 2024. Maurice Chammah, Robert Roberson\u2019s Death Penalty Case Shows How Justice System Fails People With Autism<\/em>, Marshall Project (Sept. 18, 2024), https:\/\/www.themarshallproject.org\/2024\/09\/18\/texas-autism-death-penalty-roberson<\/p>\n [38] Rachel Slavny-Cross, supra<\/em>, at 908.<\/p>\n [39] Thomas v. Commonwealth, 905 S.E.2d 495 (Va. App. 2024)<\/p>\n [40] Id<\/em>.<\/p>\n [41] IAudrey Thurm, et. al., State of the Field: Differentiating Intellectual Disability From Autism Spectrum Disorder<\/em>, Front. Psychiatry (July 30, 2019) https:\/\/pmc.ncbi.nlm.nih.gov\/articles\/PMC6683759\/<\/p>\n [42] See State v. Provost<\/em>, 490 N.W.2d 93, 103 (Minn. 1992)<\/p>\n [43] See Thomas v. Commonwealth<\/em>, 905 S.E.2d 495, 514 (Va. App. 2024) (en banc) (\u201cThe defense responded that it was not offering [evidence that Thomas was \u201cdevelopmentally delayed\u201d] to negate mens rea but to explain Thomas’s susceptibility to falsely confessing. Based on the proffer, the trial court initially ruled that the evidence was \u201ctoo speculative\u201d…the trial court here [] did not abuse its discretion\u2026\u201d); see also <\/em>State v. Anderson<\/em>, 789 N.W.2d 227, 235 (Minn. 2010)<\/p>\n [44] Ruben Kesherim, How Much Does an Autism Evaluation Cost<\/em>, Total Care ABA (July 4, 2024) https:\/\/www.totalcareaba.com\/autism\/how-much-does-an-autism-evaluation-cost<\/p>\n [45] Rachel Slavny-Cross, et. al., Autism and the Criminal Justice System: An Analysis of 93 Cases<\/em>, Autism Rsch., Vol. 15, 904-914 (2022).<\/p>\n [46] See Thomas v. Commonwealth<\/em>, 905 S.E.2d 495 (Va. App. 2024)<\/p>\n [47] Rachel Slavny-Cross, et. al., Autism and the Criminal Justice System: An Analysis of 93 Cases<\/em>, Autism Rsch., Vol. 15, 904-914 (2022).<\/p>\n [48] Id<\/em>.<\/p>\n [49] Id<\/em>.<\/p>\n [50] Mark W. Bennett, Eight Traits of Great Trial Lawyers: A Federal Judge\u2019s View on How to Shed the Moniker ‘I Am a Litigator’<\/em>, 33 Rev. Litigation 1-43 (Sept. 6 2014) https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=2491035<\/p>\n [51] Id<\/em>.<\/p>\n [54] Stephanie Francis Ward, For Lawyers with Autism, the Work Often Pairs up with Things They Do Well<\/em>, American Bar Association Journal Web First Blog (Apr. 22, 2019 6:30AM) https:\/\/www.abajournal.com\/web\/article\/for-lawyers-with-autism-the-work-often-pairs-up-with-things-they-do-well#google_vignette<\/p>\n [53] Jonathan Andrews, I\u2019m a City Lawyer with Autism: Here\u2019s How I Made the Job Work<\/em>, Disabled Lawyers Network (Mar. 25, 2024) https:\/\/lawyerswithdisabilities.com\/read-im-a-city-lawyer-with-autism-heres-how-i-made-the-job-work-jonathan-andrews\/<\/p>\n [54] Stephanie Francis Ward, For Lawyers with Autism, the Work Often Pairs up with Things They Do Well<\/em>, American Bar Association Journal Web First Blog (Apr. 22, 2019 6:30AM) https:\/\/www.abajournal.com\/web\/article\/for-lawyers-with-autism-the-work-often-pairs-up-with-things-they-do-well#google_vignette<\/p>\n [55] Id<\/em>.<\/p>\n [56] Id<\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":" Written by Paige Hathaway, L’26 On September 17, 2024, Robert Robertson petitioned the Texas Governor and the Texas Board of Pardons and Paroles for commutation of his death sentence.[1] While the basis for the petition was grounded in the growing discreditation of Shaken Baby Syndrome, the originally-diagnosed cause of his daughter\u2019s death, Robertson\u2019s lawyers assert that his conviction was wrongful for an additional reason: Robert … Continue reading Stimming Isn\u2019t Suspicious: How the Criminal Justice System Endangers and Prejudices Autistic Individuals, Defendants, and Lawyers and Why We Have to Talk About It<\/span><\/a><\/p>\n","protected":false},"author":6422,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[51366,67126],"tags":[],"class_list":["post-2092","post","type-post","status-publish","format-standard","hentry","category-blog-post","category-recent-posts"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/posts\/2092","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/users\/6422"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/comments?post=2092"}],"version-history":[{"count":2,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/posts\/2092\/revisions"}],"predecessor-version":[{"id":2095,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/posts\/2092\/revisions\/2095"}],"wp:attachment":[{"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/media?parent=2092"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/categories?post=2092"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.richmond.edu\/pilr\/wp-json\/wp\/v2\/tags?post=2092"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\nPsychological Vulnerabilities During Interrogative Interview<\/em>, 19 J. Forensic Psychiatry & Psychology 323 (2008)<\/p>\n