Tony Mantor: Why Not Me ? - Mark Mahoney: Fighting for Autism Justice

Starting point is 00:00:05 Welcome to Why Not Me The World Podcast, hosted by Tony Mayator. 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.

Starting point is 00:01:00 Joining us today is Mark Mahoney. Since the early 80s, Mark has been among a select group of top criminal trial lawyers in western New York. He is currently the only lawyer in North America and possibly, worldwide who dedicates his practice almost exclusively to represent individuals with autism spectrum disorder. He possesses a vast knowledge of information to share with us today. It's both an honor and a pleasure to have him here. Thanks for coming on. Yeah, it's an interesting project you've got there. I appreciate that. If you would, give us a little information about your practice. Where I am doing this almost exclusively about a decade ago, the thing that has always struck me,

Starting point is 00:01:43 I started getting calls from people all over the country. I was surprised there weren't any other lawyers doing what I'm doing, certainly not to the extent that I'm doing it. There's some who say that they handle these cases, but when you track it down, they're not really doing a lot of it. Or it's hard for you find people doing more than one case. And there's some who say that they have a practice involving this,

Starting point is 00:02:06 but I've reached out to some of these people and not really telling me anything about what they do, actually. Because I'd like to liaison with people. I'd like to know I could refer cases to people because I am just overwhelmed with this. You've been in this business for a long time. How did you become an advocate for autism and mental health within your practice? I had a basic criminal, somewhat normal criminal practice. I had some very large cases starting out early in my career.

Starting point is 00:02:34 I did a lot of homicides and I got involved in a serial killer case when I was only like four years out of law school. I've had cases where trial lasts six months. And then what happened is that back in 2007, I got a call from a very well-known lawyer in New York City asking for my help on a case involving somebody who was charged with child pornography in Rochester, New York, which is in our federal district. I actually had written a lot about scientific issues

Starting point is 00:02:59 and had a lot of cases that had scientific and mental health questions and things, a lot of syndromal behavior kind of issues. Battered spouse syndrome, battered child syndrome, Neonaticide, which is the dumpster baby kind of syndrome. So I actually done an unusual amount of cases that involved something that was basically called syndromal, which has a very special thinking that comes into play when you have something that reflects a known pattern of behavior because it gives you some very powerful tools in figure out how to handle those cases. Anyway, I didn't know anything about Asperger's syndrome really when I first got this.

Starting point is 00:03:35 because the lawyer said it was Asperger syndrome. But what happened is I started researching this, and there wasn't that much on this at the time. There were some articles in the research literature where clinicians were talking about raising this sort of question, those are a connection between autism and crime. And then they would recite some cases where somebody had autism. It might be an arson case or a threat case or a stalking case. And then they'd say, more research has to be done on whether there's a connection between autism and crime. And you got a lot of cases like that where people were.

Starting point is 00:04:05 putting their hats in the ring in touching on this and some people who are forensic. Psychiatists and psychologists offering ideas about how autism may relate to competence or criminal responsibility or insanity. But nobody really was saying, how do you defend these people? What's involved in defendants individuals? You find that rather dissatisfying. So the first paper I did to explain what a lawyer really needs to do, what kinds of things you need to do in these cases. One was published a book that Fred Volkmar edited and Fred was a head of the Yale Child Study Center. He edited this book called The Handbook of of Autism Spectrum Disorders and the Law and had several authors in this book. That was in 2021. There I really outlined in a way that any lawyer should be able to understand the kinds of

Starting point is 00:04:49 components there are to defending these cases. And I've been lecturing on this, but I'm still, I've got to say, I'm really quite surprised that I haven't found anybody that really wants to dig into this and make this something that they want to spend more time on. The whole problem is being so outrageous and the resistance that I would see by a lot of prosecutors and the ignorance about autism and disabilities in general, but especially autism in the entire system, from the police to prosecutors, to defense attorneys, to probation officers and judges, and the derelict way these individuals are treated in prison, there's absolutely nothing being done for them in federal prisons or state prisons, except there's a movement in Pennsylvania

Starting point is 00:05:31 where they've had a facility where they really tried to have it addressed people with disabilities. So I guess that's a long answer above how I got into it, but also why I can't get out of it, because this is a fascinating area. What do you think can be done to get the judges, the DAs, and the defense attorneys all on the same page? I've talked with judges, I've talked with lawyers, I've talked with therapists, I've talked with so many people within this business. They all have their ideas.

Starting point is 00:06:00 is how can we get everyone to put their heads together to make this a better system for everyone? Perchable, a lot of the cases that I deal with involves online sex offenses. Okay. This is all about the Internet. Right. In almost every area where we see people with autism charge with crimes, people say that it's common for people with autism to be charged with arson. I've never had one of those cases. But we know there's inappropriate touching that can.

Starting point is 00:06:30 happen or stalking that can happen. We have this whole situation where there's this whole internet experience that these individuals are exposing them to all these influences or temptations or things of interest, but they approach it without any social judgment. And again, I should say, we don't say that everybody with autism is going to be a crime. We don't say that everybody who has autism doesn't understand these things, but there's a significant percentage of individuals on the spectrum who, because of a very particular aspect that is very common to every, everybody with autism, which is this problem with what's called social visual engagement. This is this problem that actually you really don't see too many people really understanding

Starting point is 00:07:10 when they start talking about crimes and certainly this forensic psychiatrists and psychologists don't seem to really understand this research. But typically develop people learn about the social world and its rules and its boundaries and its taboos is through social interaction, starting in infancy, where we learn to understand other people. by looking at their faces and their eyes and their expressions and body language. And we learn not just about things they say, but the hidden meaning behind words. The things that people say that they don't, the things they mean when they don't say it. That's the way typically to all people learn, but they don't understand that's how they learned it. People think that they know right and wrong

Starting point is 00:07:49 because somehow it's hardwired in our brain where they're really learning it in culture and they're learning it in social interaction. And so you've got a whole group of cohort of individuals who are on the autism spectrum, who have their brain directing their attention away from the eyes and faces and the social elements of the world who don't learn these rules that everybody knows. So the problem with autism is that it's counterintuitive for typically developed people. They can't imagine why somebody who might be bright, or maybe they've gone to high school or college, have a graduate degree, or they can drive a car, or they were able to maintain a job. How is it possible that they don't understand these rules and boundaries that everybody knows. Simon Baron Cohen, who is a very

Starting point is 00:08:34 well-known world expert who wrote the book Mindblindness, early on, back in the late 90s, I think, in early 2000s, edited three volumes of essays under the global title of understanding other minds. You bring up the word global. I speak with people all over the world on my podcast. Everyone has the same issues no matter where they are in the world. It's a very big problem. Autism globally. We have this tension between, is there a medical model, is there a social model? How do we talk about autism? And we have obviously autism self-advocates and questions of what language we use, person first, identity first, and so on. Common denominator for me, whatever kind of construct you have, what I'm concerned about is the hundreds of people with autism are in prison or convicted of crimes

Starting point is 00:09:22 because there are boundaries out there that they just don't understand intuitively and nobody has told them. That's the beginning of the answer to your question about what do we do? We need to get people to really understand that this population can have somebody can look normal. They can talk like a professor. They can have skills that are terrific. Yet they may appear to lack empathy. It's often a very misunderstood question. They're not lacking in empathy as far as caring, but there's something called cognitive empathy, which is perceiving, looking at somebody and understanding their mental state. Or as Uda Frith, the very famous German autism expert would say cognitive empathy is, you laugh, so I laugh. But that doesn't mean understand really what's going on in your state of mind. What do you think is needed? We need to have people learn that this is a brain difference, that people with autism may do things that appear to be deviant, but without the deviant mindset that Congress or legislators expect on the part of people doing these crimes. They assume that everybody knows these rules, so they don't make it a requirement in, say, sex offenses,

Starting point is 00:10:28 that somebody know it's wrong. How do we change this mindset so that it gets better for everyone? There's a lot of education that needs to happen. Now, interestingly, the Department of Justice back in 2016 and 2017, the Civil Rights Division, under Vinita Gupta, who is a head of the Civil Rights Division, issued a number of policy directives saying to prosecutors, look, you have an obligation to take disabilities into account.

Starting point is 00:10:55 And that diversion from the criminal process and keeping, avoiding unnecessary incarceration of individuals who are disabled is something that would be an appropriate accommodation under the Americans with Disabilities Act and the Rehabilitation Act. A year and a half ago, Merrick Garland hosted a conference in Washington where Brian Stevenson, a famous civil rights lawyer and death penalty lawyer, spoke about the need to avoid criminalization of disabilities. So we have this top level recognition, at least on the civil side of the Department of Justice, which says, look, disabilities are different. We have to treat them differently. And in fact, by treating them the same as other people, that's really discrimination. Having done now close to 200 cases of people of autism, charged with crimes in state and federal court, I have never seen a prosecutor who is aware of these pronouncements. There's no trickle down of this. On the other hand, we have this very hydraulically pressured. system in state and federal court, they'll call anybody it looks at child pornography, a child predator. Prosecutors will campaign on, they'll have press releases every time some person is arrested with child pornography and they'll talk about child predators. We put them on the sex offender registry, which is complete annihilation of that individual. It's the civil death penalty. And it has very

Starting point is 00:12:13 little benefit in terms of preventing any kind of offenses, especially say child pornography offenses. What good does it do to have somebody on the registry? How does that prevent them from looking at images on their computer. So there are these things that made people feel good, punishments, putting people in jail for a long period of time, shaming them on the registry, driving them out of apartment complexes, that sort of thing makes people feel good, but what good does it do? How do we get past the feel good part of it and into the doing something about it part? There really should be legislation which provides an exception from prison, from minimum sentences, from sex offender registration for people whose conduct is directly related to their disability.

Starting point is 00:12:57 So the way the statutes are written, on one level, I deal with how they're enforced. I go to prosecutors and I sit down with them and I say, look, this is crazy. Here's what autism really is. And it's basically what I've just said. And here's why these individuals are vulnerable to doing things that you think are terrible, but without understanding that it's terrible because they haven't lived the social experience that you have lived and they don't understand they didn't learn in the locker room, what typically develop people learn. We've been very successful. In our cases, online,

Starting point is 00:13:27 sex offense cases, for example, 40% of the time, we're keeping people off of the registry and out of jail, which if you talk to any attorney who's done any of this work, they would be shocked. That's because, and this is the positive side is there are prosecutors, federal prosecutors, and state prosecutors who, when they hear this, they can be real human beings. They hear this, And they say, wait a minute, I never really knew this. This wasn't familiar to me. And it's hard for prosecutors because they tend to put all mental health conditions in a single box. I don't deal with that.

Starting point is 00:13:58 That would be competency or maybe insanity. But I don't understand this stuff. And I don't trust myself to distinguish who are the ones who are, dangerous and ones who are. And my point is to say, why is autism so different from other conditions? What would you give them for a definition why autism is different? Quick answer to that is it's the only condition in the DSM, which is a double. diagnostic criteria recognizes the lack of understanding of social norms. So we've had prosecutors who listen to this, and sometimes after two meetings, sometimes after three meetings, they say,

Starting point is 00:14:29 you know what, we'll do this. And so the person might plead to something that doesn't make them go on the sex offender registry. But half of those 40% of the cases were dismissals or diversions or non-prosecutions. That must be a tough situation for the prosecutor. They're trying to get the when, yet the people that work around them and the general public just do not know or understand autism. And for a lot of these prosecutors, that's a tough call to make because I've had one prosecutor in Texas who was afraid to do this because he thought his entire staff was going to resign, because everybody is totally anti this. And we ended up not completely avoiding the registry, but diminishing the period on the registry, and the young man did not go to jail. And they're

Starting point is 00:15:10 afraid of, will they get elected again, that some hothead assistant in their office might go to would campaign on this person because he put a child predator back on the street. When it was an autistic individual who has a social competence, the level of a toddler, who despite having graduated from high school or college, their social level, social skills, and social understanding is very diminished. They have no clue they're doing anything wrong. They don't have an interest in sex with children. They don't present any risk of reoffending.

Starting point is 00:15:38 I have zero percent reoffending in all the clients that I've represented, which now close to 200 people. How do we get the politics out of it? You just mentioned the DA running for office. The people that are running against him will be saying that he's not tough enough on crime, etc. So what's the answer to get the people that are in this political arena to put their heads together and understand that not all people are the same? Sometimes they will have some autistic people in front of them that just need a little empathy.

Starting point is 00:16:10 So there we come into the problem. What about the autism organizations? So autism speaks has only vaguely ever, and they're the ones that have the money, very obliquely referred to this problem. The Autism Society only recently came around to instituting a criminal justice sort of project within the Autism Society of the United States, but they just let go the director that they had pointed for that. The ARC, which is a national disability rights organization, has done a little bit of this. A lot of these organizations are doing training for police and so on, but they don't train them. They train them on how to accommodate them. They don't train them in the fact, wait a minute, this person, be ready for the fact this person

Starting point is 00:16:54 may have absolutely no clue that what they did was wrong. And these cases ought to be diverted, if possible. It was very little organized. The Ark of New Jersey has been very active in direct involvement in cases. Trying to get local chapters of the Ark or Autism Society is hit and miss. Years ago, I put together, assisted in some of the best known experts in the country to write a policy paper talking about principles for prosecutors who are considering bringing charges in these cases. And basically saying, look, on the first arrest for somebody that's something like this, they shouldn't

Starting point is 00:17:29 be prosecuted. They just need to somebody tell them what the rules are. The normal sex offender we think of is somebody who's learned behaviors. They've learned to justify treating children sexually and excusing it in their own minds and rationalizing. it and then maybe antisocial, virtually all of my clients that I've had. The problem is not that they've tried to get around these rules or rationalized, violating them. They just weren't aware of them. So these organizations, though, are afraid to come out openly and vigorously against these prosecution policies because they're afraid that people will stigmatize people with autism

Starting point is 00:18:09 saying, oh, you're saying that people with autism are criminals. They're worried about that, worried about how their donations might be affected by this. But prosecutors on the politics, they need to believe that part of their constituency is the disability community. And when you look at the level of people with disability in prisons, which is way out of proportion of presence in the population, there's every reason for these disability organizations to be on board with saying, look, we're totally out of whack here with what is going on. And Natalie, are we criminalizing people with disabilities. We're putting them in institutions that are very deleterious to them. And, of course, it's torture for these individuals in prison. All my clients, virtually all my clients were bullied throughout their childhood and school

Starting point is 00:18:54 years because they are different. Children, little children, even in preschool, are great diagnosticians. They know the ones that aren't, that don't get it socially. I've had cases of real bullying in the preschool level of kids with autism. So they're driven out of the social world, which makes it even harder for them to develop these social skills and intuitions. And a lot of them end up being homeschooled because the schools aren't protecting their children or don't provide services that they should. A lot, of course, are delayed in their diagnosis. And so parents really have no clue why this is happening.

Starting point is 00:19:25 It's always being beaten up because he's fat or because he doesn't talk as well as others because he walks funny. It's all wrapped up into the neurological differences. That's so true. I've heard so many stories on how children have been bullied at school, they almost always will try to mask it. They try so hard to fit in, yet they still have that very, very tough time that really affects them. What can we do to get everyone involved so we can make that change that is so drastically needed? Getting the autism community on board with setting out policies which clearly alert these prosecutors and train the police, There are exceptions. There's a district attorney in Pennsylvania who has a committee to screen cases where the individuals may have disabilities and screen them out of the criminal justice system.

Starting point is 00:20:15 There's a statute in Virginia that was adopted to allow judges, even without the consent of the prosecutor, to divert cases. It hasn't worked out perfectly, but there are things like that, but they're piecemeal. We really need top-level down understanding. Another thing that is really, I think, a big problem is there is no certification, board certification. within the APA American Psychological Association for psychologists dealing with people with disabilities. I've encountered a very low understanding that the little talk I gave earlier about the relationship between eye gaze

Starting point is 00:20:47 and learning social norms and so on. I would say that 99% of clinicians are not familiar with that research. They understand looking at somebody now in a Snapchat way, the diagnostic criteria, but understanding exactly, and so they could say this is how people with autism are and that this client is acting consistent with people who have autism.

Starting point is 00:21:07 But you ask them, why are they that way? They're really not able to explain that. What I have found is when you explain to prosecutors and judges why somebody with autism, despite appearing normal and intelligent and so on, why they don't get these things that everybody thinks, everybody knows. When you explain why that happens, that's been the key to my ability to get prosecutors to recognize this is true and understanding that the intuition, that they bring to this as law enforcement people are really not very useful in understanding

Starting point is 00:21:40 autism. Dr. Tommy Klan, who did some seminal research at Yale, he's now runs the Marcus Autism Center at Emory University. He made this comment. If you really want to do this work with people of autism, you have to leave your common sense at home, because the way these individuals behave does not go along with common sense. If you want to understand them and do right by them, you have to leave your common sense home and try to look at the world from their point of you. Yes, absolutely. What are some of the other things that you think are very important for the listeners to hear to help keep them away from the legal system? The other big issue is prevention. Many of my cases, we learn sexuality through social interaction. We learn these rules that way.

Starting point is 00:22:22 So the clinics and programs that are in the school or autism service organizations are not doing the sexuality teaching. Sometimes they think these kids aren't interested in sex, but they very very much are, and they're not going into the nuts and bolts of sexuality and teaching these rules. What we know about autism is that because of lack of intuitive sense of how the world works, they will grasp at rules and be rule-bound. They're not being told these rules. And that's the big tragedy. So the first thing for parents are, do not think that you don't need to talk to your children about sex and all the rules that you have learned automatically about sex and sexual boundaries, age difference, age of consent, that sort of thing. But going forward,

Starting point is 00:23:03 with parents, it's a very difficult thing. They are in a nightmare that they never could have imagined. They've worked for decades maybe to give their son or in several cases I've had daughters a normal life, but usually it's academic success. It might be occupational, but they've missed this social piece and they're told or they think because he's smart. He'll grow out of it. He'll learn the social thing. He'll learn how to make friends. No, it's not going to happen. So that's the prevented side. I'm doing my best to try to train lawyers. I just gave a lecture in New York City. Last week, I gave a lecture in Toronto. I gave a lecture in Fort Worth. This allowed them

Starting point is 00:23:45 the last two months to hundreds of lawyers. And I publish stuff. I give away material free to lawyers and families. In closing, what would you like to tell the listeners that you feel is very important for them to hear concerning the legal system and what they need to know if they ever find themselves in need of a lawyer. They need to have a lawyer who, number one, says, if you sit down with a lawyer and they don't, within 30 minutes, after hearing about your son's history and your view of your son, if they aren't horrified and feel that this is, the whole thing is totally unjust, and just say, the system is the way it is and we'll see what the DA will give us, then you've got to leave that lawyer. Or if they say, look, here's this paper you can find online that Mark Mahoney gave

Starting point is 00:24:32 to lawyers in Texas a couple years ago, read it, what do you think? If the lawyer's initial reaction is, that's very interesting, but we don't do things that way here, or our judges won't do this, our prosecutors won't do this. If they don't immediately say, look, we've got to get a furrow evaluation and have some, find an expert that can explain the connection between autism and this, walk away. And they've got to be very careful too, because there are a lot of lawyers who will look at this and they'll have two things going on their head. And one, the parents are scared to death for their child. Number two, they really don't know anything about autism.

Starting point is 00:25:05 They will tell the family set of flat fee, very often. Flat fees are very common for criminal lawyers and parts of the country, not so much in New York where they're very much in disfavor. I say, okay, give me $75,000, but they know this is a big problem case. If they work hard, they can do things that to them are the kind of things that lawyers need to do to be, quote, aggressive in defending somebody. Maybe they'll make a motion to suppress some state made to the police or hire forensic people to look at the computers and cell phones.

Starting point is 00:25:31 I should say, not all my cases are sex offenses because I got a lot of other cases that don't involve sex at all. So families can go to a lawyer who takes basically all their money and I've had families who sold their house or gotten another mortgage or something to pay these retainers. And then later on, they realized a lawyer, first of all, was not telling them what was going on with the case. So I can't tell you about, I can't share this discovery with you because you're the parent. You're not the client. He's my client when he may have, let me, this, I'll give you a scary data here. The average age of my client is 25. The average IQ is 106.

Starting point is 00:26:04 And now we're talking about well over 100 people, okay? Their average age level in terms of their interpersonal social skills, empirically measured with the Vineland Adaptive Behavior Scales, a very common, very widely used measure of social adaptation ability. Their age equivalent in the interpersonal social skills, which, again, those skills are the ones that relate to social competence, is three years and three months. So this is an unbelievable figure.

Starting point is 00:26:32 Even experienced clinical psychologists, when I've talked to them about this, they say, I can't be right. And I show them. I've got dozens and dozens of these reports. This is what you're dealing with. But lawyers, they'll say, oh, he knows what's going on. I talk to him and explain it to him. Any parent will tell you, yes, my son or my daughter is going to be not in their head

Starting point is 00:26:51 and they'll parrot back what somebody said, but they do not understand it. They meet with the lawyer and then they come back and all of all these questions to the parent. and you cannot convince the lawyers that they don't understand this. They don't know who to hire as an expert. They'll go to their buddy who helped them in their murder case, and the judge, the prosecutors respect this person, and they really don't know anything about autism. They'll recite the diagnostic criteria for autism and so on,

Starting point is 00:27:15 but they're not going to be able to explain to a prosecutor why this person is not really morally culpable and why they're not dangerous, why they're not going to do it again, and be able to sell that. Picking the right lawyer and be very careful, careful because they're going to be afraid. And sometimes, too, what happens, they might call me. They may call somebody else who has a better handle than most on it, and they're afraid to get

Starting point is 00:27:38 rid of the lawyer that doesn't know what they're doing. You get very much afraid that's going to hurt them. The first thing I have parents do is prepare their own narrative of their son or daughter's developmental history. It's a very challenging thing for them. These things run 30, 40 pages, and it's very difficult for parents to go back over that. But they need to have a lawyer who makes them part of the defense team. And it's really listening to them and not brushing aside their concerns when they say he's very naive. He doesn't understand this. They understand this case. He didn't understand he's doing something wrong. For a lot of lawyers, it's like prosecutors don't want to hear excuses. We do, some lawyers have done good work in these cases. What I do is I consult with lawyers and I give them

Starting point is 00:28:17 advice and I sometimes appear in cases all over the country. Honestly, I'm overwhelmed with these cases. That's just great information. With all this information, that you've given, it gives the listeners a chance to learn. Hopefully, they'll never have to use it, but it does give them ammunition to advocate for more change across the country. We have to. It's just an awful situation right now. We've had great successes. I'm very proud of some of the cases we've had where somebody doesn't go to prison, doesn't get a conviction, and they don't have a stain for life, but there are others where we actually have life sentences. Sometimes judges are angry. I have one judge who said it's an insult to people with autism to try and raise this in your defense at a trial.

Starting point is 00:29:02 There was a terrible case in Canada of a young man charged with a domestic terrorism kind of offense. And the lawyer raised the question of his autism and the autism was deciding in Canada, railed against this lawyer and said, this isn't autism and it should never be used in a defense. And so they're throwing their own people under the bus and covering over the fact. People with autism may be not to this degree and maybe not in this area, but they all experience the problem of not understanding aspects of our social world and complain about the fact that we expect them to understand this. Justifiably, like I said, for me, the common denominator is where they cross a boundary. They don't know, but is enforced very heavily, and they end up in prison. It's cruel.

Starting point is 00:29:44 To me, it's a human rights violation, and it's a challenge to our morality. If we criminalize people don't understand that they're doing something wrong. Exactly. I really appreciate you coming on. Great conversation, great information. That was 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.

Starting point is 00:30:23 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.

Tony Mantor: Why Not Me ? - Mark Mahoney: Fighting for Autism Justice

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