Friday, March 20, 2015

Autistic Virginians are Being Labeled Violent Sex Offenders for Life with No Consideration of Their Mental Diagnosis, Their IQ or Their Social Age Compared to Their Chronological Age

In the last 7 years of advocating I have been contacted by at least 12 other parents of Autistic children who are listed on the VSP Registry as Violent Offenders. Below is the latest notice I’ve received from a parent of a 25 year old Virginia male who has Asperger’s Syndrome. 

I’ve posted about RSO’s with autism in the past.
Citizens who have been diagnosed with Autism have representation/advocates at the annual Virginia General Assembly every year for therapies, schooling, insurance and new resources but NO ONE EVER discusses what happens when Autistic Virginians are swept up by our criminal or judicial system. No one is concerned about them surviving incarceration, abiding by the rules of VADOC Probation or what a lifetime on the VSP Registry as a Violent Sex Offender really means to them or their family members who look after them.

If anyone has “fallen through the cracks” ( a favorite phrase by many Virginia Legislators and crime victims) in our State it is citizens with Autism who are interrogated, charged, convicted and incarcerated while EVERYONE involved turns a blind eye to their disability and mental capabilities treating them as if they had criminal intent when they did not. 

When our elected officials are raising the punishments, lowering the burden of proof or refusing to add an age gap allowance to proposed bills they need to know that their “rewrites” of Virginia Code is actually sweeping up low IQ, mentally incapable and Autistic citizens who pose no threat to society as Lifetime Violent Sex Offenders in the Commonwealth.  

Mary Devoy

We have a 25yr old (RSO since 2011) son who is intellectually disabled (Autism: Asperger’s Syndrome) since birth who is registered as a Violent Sex Offender (no violence ever took place).  Our nightmare is below:

Background on our son:  Our son was born on ______ 1990, there was difficulty during birth, the umbilical cord was wrapped around his neck and cut of oxygen to the brain.  Age six, he was diagnosed as "Developmentally Delayed" while attending school.  Age eight, diagnosis changed to "Autistic" by the Autism Expert employed by the Loudoun County School.  He received Special Education services for his entire time in the school system.  He received a high school diploma but, we have recently discovered that he did not achieve the state requirements for a regular high school diploma but was given one anyway.  He has an extremely low IQ (75-81), margin of error +/- 9.  Additionally, his Psychological evaluation at age 18 indicated "he was not ready for the adult world."  I think it is safe to assume his mental age was not at his chronological age. 

Our son was arrested in Loudoun County, VA on 26 Mar 10, for Aggravated Sexual Battery.  Within 30 seconds of applying the handcuffs, I told the arresting officer he was Autistic, he had a lawyer, and do not ask him any questions.  We are his advocates and we were not allowed to be involved any where in the process that followed. 

They took him in and contacted the investigator working on the case involving him.  They read him his Miranda rights which he said he understood, signed that he understood, without reading by the way.  It was clear to us and several others who have viewed the interrogation tape, he did not understand the "meaningful value" of these rights (Intelligently waived?).  Best example I can give you is that when asked if he wanted a lawyer, his response was "I can have one later, right?"  The investigator responded that he could, and he said okay.   No accommodations were made for him to ensure he understood his rights and the legal problems he faced. 

On the tape, you can see clearly the arresting officer writing something on a pad and slide it to the Investigator. She reads it and shortly after that, she asks our son "if he has anything wrong with him that would prevent him from answering her questions." His answer was no. Why didn't she ask him if he was autistic?  While deception is legal for police officers during interrogation, I find it very concerning for use against the mentally ill.  It would have been most appropriate to ask him if he was autistic and documenting that on the video.  One real important issue here during the interrogation, at the very end of the tape, the LCSO Investigator told my son not to discuss this case with his parents.  To date, he hasn't discussed much of it to us, and not much to his lawyer.  We believe there is a link to her statements and the outcome of the case and this might be illegal as well.  He was denied bond two twice and was confined for approximately 30 days with neither us or any other advocates having access to him other than the monitored phones we were able to speak to him through the 1 inch glass partition. 

There was a competency evaluation done on him about six months into this case.  The evaluation said he was competent. (We did some research later and contested the evaluation at a later date.)  There was no competency hearing conducted as required by SCOTUS decisions.  I know, that is maybe a lawyer thing here but, we also believe we had inefficient counsel as well. I told him everything abut our son and his psychological issues and he ignored them and did not provide us any counsel concerning this issue.  Additionally, he told us the Loudoun County Commonwealth's Attorney's Office said that "Asperger Syndrome" was "bull shit".  I find that remark highly OFFENSIVE and DISCRIMINATORY. 

While out on bond, our son was selected for jury duty.  It was in August - September 2010. I sent a notice back to the Loudoun County Circuit Court that he was mentally disabled (faxed his psychological records) and could/should not be considered for jury duty.  I received a phone call back from the Jury Management Office and they said the judge excused him based on his disabilities.  Of interest here, how can he be mentally impaired for jury duty but competent to stand trial (with no competency hearing)?  We tried to bring this back-up during one the hearings we had (post sentencing) but, the Judge would not hear it.  The issue I have with this is you can't have it both ways. 

During the court proceedings, there were no accommodations made for him as required by the ADA.  My son continuously went along with everything not knowing anything and no one present to be his advocate, except counsel.  Our lawyer at the time was not a mental health lawyer.  Good example(s) during his plea hearing, the judge stated, on the record, there was a competency evaluation done, but he hasn't read it.  During the colloquy: The judge asked him to speak up when answering and our lawyer told the judge that our son has Aspergers Syndrome, The judge replied, "that doesn't affect his speaking does it."  Additionally, the judge asked him about why he was pleading guilty, after a long pause and his lawyer leaning over to whisper to him, he said, "'I'm guilty, I guess."  Pretty good indicators his mental state wasn't where it needed to be and no accommodations were made even after the judge was told he had Aspergers Syndrome (a mental impairment). 

During sentencing, the judge sentenced him outside of the "guidelines."  I know, he doesn't have to.  My son was sentenced to six years in prison, 5yrs supervised probation, 15yrs unsupervised probation.  The VA sentencing guidelines stated he should have received somewhere between if 1.2 yrs - 4.8yrs.  My question is why would a 1st time in front of the VA Criminal Justice system, a youthful offender, and mentally disabled receive such harsh sentence? Additionally, the judge ordered him not to reside in the neighborhood.  With that order, he sent a mentally impaired person out on the streets with no accomodations. I personally know of a same age, Aspergers Syndrome, Caucasian male a couple of counties over was charged with the same offense and received a plea deal of reduced conviction, Contributing to the Delinquency of a Minor. 

We had his sentencing order held open because we were conducting research and other information was just starting to flow to us which was counter to the evidence presented by the prosecution.  (The alleged victim provided false statements to the police and our son never gave us any details of what actually happened (until recently)).  We went back into to court (Loudoun) several times to have the conviction overturned, probation changed (the judge ordered him to not live in our neighborhood), competency evaluation challenged (no hearing was conducted and it was easily shot full of holes).  No luck on any of it.  Recently, 23 Jul 13, the VA Court of Appeals affirmed the lower court's decision. (Note:  We let him take an unwritten Plea Deal due to not knowing any of "______'s facts" in the case.  And the reason was our lawyer said he faced "life + 20" if he didn't.  We only recently found out otherwise.  This is all due to ________ not being able to properly assist his lawyer in his own defense. A problem inherent to people with mental impairments)

No request for accommodation was filed.  However, we told our lawyer in our first email to him 26 Mar 10, all about ________'s mental disorders (there are more than just Autism).  He did nothing with that and told us this is a criminal case and all that mattered was _____ actions.  (We told him it did matter concerning his mental impairments and those are required to be considered by Federal Law (ADA).  It wasn't until approximately 5 months later, our lawyer received a phone call from the Pre-trial Services Officer asking what was wrong with _____, "he knows nothing about his case".  We assured her we have told him everything about what was going on but due to his mental impairments, he is unable to understand and convey that to her.  Our lawyer then asked for a Competency Evaluation.  Additionally, I spoke to this same Pre-Trial Services Officer on the morning of 29 Mar 10, as she called to speak with me concerning _____ getting bonded out of jail.  I told her he was mentally disabled and was protected by the ADA.  She said to me, "What's that?" 

During his six months in jail, our son was transferred to Middle River Corrections Facility (approximately 120 miles away).  I don't know why he was transferred but this caused much distress for him.  He spent over a month there and we were only able to visit him once while he was there.  Additionally, we were told he was placed in maximum security. He spent 23 hours a day in his cell and was allowed to make one phone and take a shower during the one hour he was released from his cell.  We asked why and was told it was for his protection due to his charges. It sounds more like isolationism rather than protectionism.

Since our son was released from jail and placed on probation, I have repeatedly asked to go back and be with him during his meetings with his probation officer (PO).  I have been repeatedly denied this action.  His PO is aware our son has Autism and I have said to him that the ADA requires him to make accommodations for him. Additionally, due to his mental impairments, we have full Power of Attorney over him and his affairs.  The PO has a copy of this document.   To this date, our son is still being denied any accommodations by the VA Department of Corrections. 

They LCSO were informed from the moment they arrested him, and each step of the way in this process that he had a mental disability.  According to our lawyer at the time, the Commonwealth Attorney responded to him stating Aspergers Syndrome was, I quote "Bull Shit".  The LCSO erred by not making any accommodations after being told ______ was "Autistic, had a lawyer, do not ask him any questions" and ensuring he understood the charges against him and more importantly his Miranda Rights.  The Loudoun Circuit Court erred by not acknowledging his disability and making accommodations to ensure he understood the proceedings against him. 

I know, everyone is going to say, "he had counsel".  Well, we told him the ADA needed to be enforced in this case.  He ignored us and this is what my son got.  We believe our son had ineffective counsel due to he himself did not firmly understand the mental impairments ______ had, and the effects that it had on this case.  We (my wife & I) did a lot of research and provided him that research (case precedents, mental health laws, etc).  He did not use that at all.  One thing to note, in the sentencing statement (probably not the best time to discuss mental impairments) he prepared for the court, the majority of the information in it dealt with _______'s mental impairments, all of which we provided him.  It is the only place he spoke of his mental impairments.  The judge appeared to just dismiss his mental impairments

I am interested in assisting anyone in changing these laws and being an advocate for change. Additionally, it would be great to team up with other advocates, who can also be advocates for us as well.
Thank you