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15 Jul 2021, 8:18 am

Why autistic people are less likely to get a fair trial

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Autism advocate Haley Moss is many things: an author, a pop artist, a social justice advocate. She is also, notably, the first openly autistic female attorney in Florida history, which means that she is in a position to advocate on behalf of other people who are neurodivergent. ("Neurodivergent" is a neologism means that your neurological makeup is not typical, and is an antonym of the neologism "neurotypical.") In speaking with her, it is clear that she views her career successes as a responsibility, one to which she devotes a large portion of her substantial intelligence.

And she knows that if she were not a lawyer, she would struggle to be heard.

"I think that a lot of the reason that I do get to educate attorneys and judges is because I'm also an attorney," Moss told Salon. "I think the fact that I am seen or perceived as an equal educationally is a huge privilege. And I think sometimes it's the only reason that I might get to take up space in that conversation. I don't know if judges would give it the same weight or attorneys would give it the same weight benefit."

Research has shown that being autistic is akin to speaking a different language. Those on the spectrum are more likely to commit faux pas, to not properly read a social situation or figure out how to effectively interact with it, or in general be uncomfortable because of external stimuli. Even though we would like to imagine that our court system is impartial and focused on facts, the reality is that cases are decided as much by unwritten social rules as everything else in our lives. This means that neurodivergent individuals are here, as elsewhere, more likely to run into bad situations.

And indeed, our purportedly impartial justice system is often biased against the neurodivergent.

"Stereotypes about neurodiversity that are grounded in the old 'deficit' view of the brain work against the individual," Thomas M. O'Toole, Ph.D., the president of and consultant at Sound Jury Consulting, LLC, told Salon by email. "We live in a post-truth world where our beliefs and experiences serve as powerful filters for what we accept as true, and unfortunately, this means those stereotypes could work against a neurodiverse party in a lawsuit if the stereotypes give jurors a shortcut to doing the hard work of sorting through the case details."

"Judges and attorneys are everyday people with everyday biases as well, so I think the challenges remain the same with all three audiences," he added.

Elizabeth Kelley, a criminal defense lawyer who specializes in representing people with mental disabilities, described the challenges facing neurodivergent people in our legal system as "a tremendously involved question largely based on the type of neurodiversity" at play. You have criminal defense lawyers who will need to factor a client's mental disability or illness into account when determining what advice to give on taking the stand, impressing the jurors and interacting with the judge. If a client laughs at inappropriate times, or doesn't show emotion during upsetting testimony because of a flat affect, or takes a medication that makes them feel tired, or reacts poorly to being overwhelmed with the stimuli present during a trial, they could wind up making a bad impression on the judge and jurors.

Another part of the problem, as Dr. Michael Kiener of Maryville University wrote to Salon, is that ordinary people are often ignorant about the spectrum of disabilities.

Moss elaborated on the challenges facing neurodivergent individuals when they interact with our legal system.

"Think about how your average person or reasonable person hears narratives about neurodiversity," Moss explained. "They see what they see in the media and how media sometimes gets it wrong. They might hear somebody testify and they think that this person isn't acting in the way that they should." Whether they don't get their words straight, they fidget and get nervous, they swim (engage in self-stimulating behaviors) on the stand or have a flat affect, "a juror might think, 'I think they're lying,' even though they're just trying to regulate their attention."

O'Toole said there are a number of things that can be done to fix this situation. For one thing, attorneys with neurodiverse clients should directly and immediately address the issue in their opening statements if they believe it could become an issue. Simply raising awareness to the judge, jury and other lawyers can make a difference.

O'Toole also suggested that lawyers explore potential anti-neurodiversity biases in the jury pool.


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Professionally Identified and joined WP August 26, 2013
DSM 5: Autism Spectrum Disorder, DSM IV: Aspergers Moderate Severity.

“My autism is not a superpower. It also isn’t some kind of god-forsaken, endless fountain of suffering inflicted on my family. It’s just part of who I am as a person”. - Sara Luterman