NY: Justice for an autistic teenager?

NOTE: The following is from a mother who is fighting for the rights of her autistic son, who has been in jail for the past year. She claims that a confession from the 5 year old victim was coerced, that her son was encouraged to waive his right to an attorney by a school resource officer the child trusted, and that he was forced to admit to a crime he did not commit...and that they have videotaped proof of all of their assertions.

By Jeannette Hutchison

Daily Reporter

Thu Jun 04, 2009, 10:28 AM EDT

http://www.wellsvilledaily.com/opinions/x726827026/Justice-for-an-autistic-teenager

Currently most of the cases that go through criminal court in this country are pled out rather than going to trial. Most of us have gone to court for a traffic ticket and had an automatic option presented to plead to a lesser charge. Until today, I had never really thought about what it would mean to someone who is innocent of the charges, but in some way compromised by the court.   But today I saw our system for the cynical and hypocritical tool that it is.  

Where to begin?   Let me just say that my son,  an autistic and mentally challenged teenager, was charged with a very serious crime that he did not commit.  He was taken  from a respite house by the police, denied access to a lawyer, and deliberately separated from the counsel of his parents.  After my son was taken into custody, a police officer, a man he knew from school,  whose office was right next to his  special ed class, “the man with the gun,” told him that if he did not agree to the charges and sign off on them, he would never be let out of jail, and if he agreed to doing these things he could go home.  He then handed him over to an interrogator with a pre-written list of culpable actions.  Before the day was out, my son had signed off on all charges. 

Hopefully, he will recover from his terrible sense of betrayal when the school policeman, who he thought of as his protector, became his primary accuser, tricking him and lying to him.  He is afraid to trust anyone now.

At his arraignment later that afternoon, the judge asked him  if he needed a lawyer, and he said that, no, he did not need a lawyer because he was going home. If the accused person of a serious crime tells a judge he doesn't need a lawyer because he is going home, is it not a fair assumption that:

1. He does not understand how serious the charges are.
2. He is confused and under the false impression that he will be free to go home after the arraignment?
3.The judge should challenge the accused,because he obviously doesn't understand?

At the Huntley Hearing called to challenge the veracity of the confession, the interrogator and the State Trooper who arrested my son said that they didn’t notice anything unusual about him, a physically immature, autistic teenager with the mental development of a much younger child, and a markedly odd social presentation.  They said that he was cheerful and direct (my son, like most autistic people, rarely meets your eyes when he talks to you), and discussed the bizarre charges like a 'normal' 17 year old.   They also said that they were certain he understood the charges because he was reading them off the computer screen.  Despite being presented with school records, which clearly show that my son reads and comprehends what he reads at approximately third grade level, and therefore could not possibly have read the confession and understood what he read off a computer screen, the interrogator and the state trooper were unshakable in their  assertion.

The judge ruled that he would not challenge the integrity of the police.  We have a tape of the arresting officer questioning  my son during a preliminary investigation where he  repeatedly states that he didn't do anything.  They also have a tape of a three hour session, the third such session, with the five year old plaintiff, a social worker and the arresting officer, in which, after two and a half hours of coaxing and prompting, the alleged victim finally states that the accused has done something related to, but much less than, the contents of the confession. He then refuses to talk any more. Before the end of the session, he asks when he can see my son again.  According to a doctor, there is no physical evidence that anything whatsoever has occurred. However, we are looking at a trial in a small town court where the judge has made it clear that he stands behind the police who, we can see, are not stating the facts as they occurred, but have rather fabricated a story to make their beliefs about the case clear to the rest of us. We can’t put the defendant on the stand to refute their claims because he is autistic and mentally challenged, the proceedings have confused him, and if the prosecutor starts to badger him, it is unclear how he will respond, this could further damage his mental health  But, in any case, he doesn’t act ‘normal’.  He  has been in the county jail since July of 2008, mostly in solitary.  Up to now, there has been no consideration of his disability in the court proceedings, but in the jail, they have had to make some adjustments for him. He is on 72mg of concerta, 5mg of ritalin, 5mg of abilify, 30mg of temazepam, 500mg of depakote 2 X a day 400 mg of seraquel 2 X a day, .05 mg of synthroid, and 0.15mg of clonidine 2 X a day, which they denied him the first 4 days he was in jail.  He is naive and open, and easily confused by the attitudes of the other prisoners.   So, he spends his time alone in a cell with a pile of coloring books with mazes and word search and card games.

The prosecutor has asserted the most severe charges and punishment possible. They are talking about 25 years in the state prison.  This developmentally disabled, 110 lb, immature boy cannot survive 1 year in the state pen; worse yet, labeled as a pedophile.  What can we do?   Finally, the lawyers arrange for him to ‘plead’ to a lesser charge, and be placed in the care of the NYS Office of Mental Retardation and Developmental Disabilities.  He probably should be heading toward a residential program anyway.  The downside is we have to ask him to lie by telling him to say he did things he did not do.   And, even with the lesser charge, he will have to be registered as a “sex offender”. This is tough to swallow because he did not do anything, and it is clear, even to my son, that he should not have believed the State Police that told him he could go home if he signed the paper saying he did something that he didn't do. . Given the weakness of the evidence, it isn’t clear that anything happened at all. But it’s a big risk to go before a jury, up against a crying mother, lying police and a confession that states the most horrible crimes.

The lawyer says it is best to plead.  My son will, hopefully, end up in a safe place where they have resources to make his life pretty good.   So, here we are in court to go through the formalities of the plea.  He sits at the defense table, a slight youth in an orange suit, his hands shackled to his feet, surrounded by grown ups.  From the standpoint of the court, he  is a normal grownup too, but it is difficult to justify when you see him sitting there, confused and uncomfortable.  The judge first asks the lawyers, the prosecutor and the defense lawyer, to explain their understanding of the deal so as to be sure everyone is on the same page. It appears they are ready to proceed. The judge then asks my son if he understands what he needs to be doing.  When he doesn’t respond, the judge suggests he talk with his lawyer and get clarification. The lawyer talks to him in a low voice for several minutes.  He is basically giving him the script and reassuring him that it will be alright.

Finally, they look up and the lawyer indicates to the judge that they are ready to proceed.  So, the judge tells my son he doesn’t have to come to the witness box, that he will swear him in right where he sits.  He then proceeds to state in a loud and dramatic voice “Do you swear to tell the truth, the whole truth, and . . .  Do you understand the charge . . .?” Do you understand that by pleading to this charge you are giving up your right to a Jury trial and all future rights to deny the charge . . .?”   So the defense lawyer reads out an action, the minimum action necessary to validate the charge to which they are here to plead.  Did you do this. . .”  My son  doesn’t reply.  There is an eerie silence.  He is deadlocked, frozen in the headlights.  

Truth on the right, necessity on the left.  He just swore to tell the the truth, the whole truth etc.   Everyone is waiting for him to tell a lie.

So the judge says, “I thought you understood what you need to do here. Would you like to talk to your lawyer again?”   A slight nod.  So now the lawyer is once again whispering away in his ear.   And finally, they indicate that they are ready.  The lawyer, again, states that minimal action necessary to substantiate the plea.   After a tense pause, he  responds with a hesitant “yes”.  The prosecutor stands up and stalks across the room  and indignantly cries “That isn’t what we agreed.  I need him to say more!”  The defense lawyer asserts that the statement does substantiate the charge as he rises from his seat and follows her to the bench. There is more busy whispering.  Later we will hear that the judge sided with the prosecutor.  He said that if my son  didn’t plead to a more serious version of the offense, then he would substitute the original confession (to far more serious crimes) for whatever my son  says. Finally, they return to their places.   The defense lawyer is again whispering to him ,  After a time he stops and asks, “Ok. Are you ready?”   There is no response, so he returns to his whispered explanations and instructions.   Finally, they look up.  He reads again from his paper.  This time the action he states is a little more ugly and personal.   He asks my son  if this is what happened.  Again, there is a breathless silence followed by a faint “yes”.   Further, he asks if it happened twice.  Another low, almost inaudible, “yes”.   The judge then asks my son  to repeat what the lawyer has just said.   He doesn’t respond.  The judge asks again, and the lawyer whispers encouragement.   Finally, he haltingly repeats the statement of guilt.  “Where did these events occur?”   asks the judge.   A long silence.   “Where did you do this?”   Another pause, then “In the house?”  It’s a question.  “In what house?”  The judge isn’t satisfied.   Another pause.   Finally, “His and mine?is that ok?” It’s still a question.  Is this what you want to hear.  But mercifully, the judge and prosecutor are satisfied.

This is a mockery of justice.  If he is lucky, this innocent victim of a witch hunt will find himself in another institution where they at least are competent to deal with his disability, but with a very dark cloud of suspicion hanging over his head.  He will need time to recover from the trauma of having to recite self-incriminating lies to save his life.   He twitches and his hands tremble when he raises them to gesture.  He will need time to recover from a year of mostly solitary confinement.   He has lost 30lbs.,  he has trouble sleeping, and tends to fall into a paranoid mindset regarding the people around him.  He occasionally wonders how he can hide  when he ‘gets out’ so that the school cop, his primary accuser, won’t find him and kill him.  It is going to take time, but hopefully, he will be able to move into a residential program, perhaps somewhere in the country where it won’t be an issue that he is registered as a sexual predator.   And hopefully, he won’t lose the residential program that buys his freedom to cost cutting measures or some such, and find himself back in the courtroom under mortal threat. If he isn't lucky, well . . .  he won't survive. Where is the justice here?  I thought this was the United States of America,  where you are innocent until proven guilty.   Aren't we all guaranteed certain constitutional rights, like a fair and speedy trial?  How is it that the very people who are supposed to protect you lie and threaten to cause you  harm.  I think there should be laws to protect the disabled so there can be no more injustices to  autistic and mentally challenged  persons.
(The writer lives in Angelica)