Tony Mantor: Why Not Me ? - Elizabeth Kelley:Autism in the Legal System: A Defense Attorney's Perspective

Episode Date: April 4, 2025

Send us a text Criminal 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 disabilities Tell 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.com https://Facebook.com/tonymantor https://instagram.com/tonymantor https://twitter.com/tonymantor https://youtube.com/tonymantormusic intro/outro music bed written by T. Wild Why Not Me the World music published by Mantor Music (BMI) The content on Why Not Me: Embracing Autism amd Mental Health Worldwide, including discussions on mental health, autism, and related topics, is provided for informational and entertainment purposes only. The views and opinions expressed by guests are their own and do not reflect those of the podcast, its hosts, or affiliates.Why Not Me is not a medical or mental health professional and does not endorse or verify the accuracy, efficacy, safety of any treatments, programs, or advice discussed.Listeners should consult qualified healthcare professionals, such as licensed therapists, psychologists, or physicians, before making decisions about mental health or autism- related care.Reliance on this podcast's contents is at the listener's own risk. Why Not Me is not liable for any outcomes, financial or otherwise, resulting from actions taken based on the information provided. Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

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 your 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.

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 U.S. Supreme Court, has written several books, lectures across the U.S., 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 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 wearing 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 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, 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, 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. 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 step?

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 on to 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. Soan'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 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. Beyond that, forensic mental health experts are specifically trained in how to work with attorney, 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. 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 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? 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. 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 U.S. 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 veterans' 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 if you 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 that's 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 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. You may have someone who in one state is placed on a state. 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 competent. 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 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. 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. 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, in insanity is completely inappropriate. 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 it 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 Hinkley. After Mr. Hinkley 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, share the appropriate parts of that report with the prosecutor, and try to persuade them that, 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 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? I would say a few different things. First of all, take it seriously. If you are a 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 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 on LinkedIn. It's been my pleasure. Thanks again. Thanks for taking the time out of your busy schedule to listen to our show today. We hope that you enjoyed it as much as we enjoyed bringing it to you. If you know anyone that would like to tell us their story, send them to tonymentor.com. Contact, then they can give us their information so one day they may be a guest on our show. One more thing we ask, Tell 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.