Michael is an autistic young man some 21 years of age. He lives in a suburban community, in a small group home. He’s relatively high on the spectrum and generally fully functional in society. He tends to get nervous when people yell at him or raise their voices, generally.

While shopping at a local convenience store that had recently been purchased from the owners who knew Michael, the new owners saw Michael shopping, but acting very strangely. He stopped and read every label and looked at numerous items, putting most back. In his arms he had only a few items he intended to purchase.

Spotted and presumed to be shoplifting, the new owner yelled at Michael to get out of the store. Trying to obey and not cause any problems, he ran out, still carrying the few items in his arms. The police were called, and the store’s video used to prosecute Michael.
ASD and Criminal Intent

The question for the defense counsel is how to teach the judge and prosecutor that Michael, being autistic, takes every command literally, and thus in leaving the store, as ordered by the owner, while still carrying the items Michael had no intent to steal anything from the store, and had not gone there with any criminal purpose.

The prosecutor, unfamiliar with the behavior of autistic persons, saw only a young man who was accused of shoplifting and in whose residence the stolen items were found. To him, this was a cut and dried case. But is it?

While the law provides for an insanity defense, there is no provision in law to specifically accommodate persons with Autism Spectrum Disorder (ASD). The law fails such persons by a presumption of guilt because of their ASD, in essence the juxtaposition of the presumption of innocence for non-ASD citizens, and effectively a violation of their civil rights and liberties, the equal protection clause and not to mention their rights provided in the Americans with Disabilities Act. The law has, by virtue of its ignorance of autism, established the autistic as second class citizens in the criminal justice system.

Obviously, the prosecutor is trying to obtain a conviction, and believes that with the store’s video showing Michael’s unusual behavior (relative to non-ASD persons), as well as him walking out carrying several items in his arms, there’s sufficient proof for any jury to show his intent and actions.

The defense must show that the only reason Michael left without paying was that the store owner, unfamiliar with him, raised his voice and ordered Michael from the store. Being very literal, Michael did not consider putting the items down, nor offering to pay for them. He simply reacted to what he was ordered to do – leaving the store immediately, whilst still carrying the items.

Compounding the defense’s difficulty is the fact that when nervous, Michael quickly becomes non-verbal, thus in an unusual setting, such as the attorney’s office, it is impossible to get Michael to explain what happened. This also impacted Michael’s interaction with the police when he was arrested. Frightened, he became silent, refusing to provide his name, or speak in any way. Because the counselor at the residence where he lived was not immediate family, police elected to ignore his statements about Michael’s condition. For them, his silence was almost an act of confession.

When communicative with his attorney, Michael always steered the conversation to his particular field of interest, butterflies. Whenever counsel tried to ask a pertinent question, Michael effectively shut the topic, which was painful if it dealt with his arrest or being yelled at, turning to the field of butterflies. Michael was singleminded about his narrow-focused subject, so getting any response necessary for his defense was extremely difficult.

Educating a judge and jury is no simple task in a criminal defense case. Justice, blindfolded to Michael’s condition offered no consideration, and it was clear the ability to examine Michael on the stand was near impossible. No amount of coaching would help. The prosecutor was going to be aggressive in his pursuit so the defense had to be inventive, creative and informative.

The question that the jury had to focus upon was whether Michael had intended to steal the items in his arms or, mindlessly left the store with the items when ordered to go? Was there criminality in Michael’s action, or a simple mistake by the new store owner, in failing to know his clientele?

Defense counsel has to rely on other evidence and witness testimony, including experts such as psychiatrists. The key witnesses however, will be the former store owner and the current one. Ultimately, proving Michael’s shopping behavior in the store prior to the new ownership will be important, and what the new owner did that day will also prove critical. The testimony of competent psychiatrists will show there to be no pattern or forethought of stealing in Michael’s psychological makeup.

The other concern that both attorneys must consider is how Michael may be questioned and what his behavior will be. Questioned rapidly, he will be unable to process the queries and prepare any reply, resulting in shutting down – or silence. If he does go on the stand and replies, keeping him on focus will be challenging. Further, if the prosecutor does elicit a reply, it is potentially untrue, though Michael isn’t intentionally lying. Rather, he may answer a question in a way that he believes will please the prosecutor.

The question we’re putting forth is, how this case will resolve? Please comment and express your opinions.