Asperger's and criminal responsibility - Commonwealth v. Odgren

"He lost touch with the real world. He did not understand what he was doing and he could not control himself."

-- Jonathan Shapiro, defense attorney

Trial started today in Woburn, Massachusetts, in the case against John Odgren, a teenager who is accused of murdering 15 year old James Alenson three years ago. According to news reports of today's opening statements, Odgren's attorney is arguing an "insanity" defense based on Odgren's having Asperger's Disorder, a form of autism. Unlike some other defendants who have raised a defense based on Asperger's, Odgren had a diagnosis at the time the killing occurred and was a special education student.

Under Massachusetts law, a criminal defendant can be found not criminally responsible by reason of mental illness or mental defect if, at the time of the criminal conduct, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Commonwealth v. McHoul, 226 N.E.2d 556, 557-58 (1967).

This is exactly what Odgren's attorney is arguing when he says that Odgren didn't understand what he was doing and couldn't control himself.

From today's Boston Globe article:

In his opening statement at Odgren's first degree murder trial, attorney Jonathan Shapiro said Odgren's mind was broken when he stabbed 15-year-old James F. Alenson inside Lincoln Sudbury Regional High School without provocation.

"He began to think that something cataclysmic was going to happen to him,'' Shapiro said of Odgren, who was then 16 years old. "He lost touch with the real world. He did not understand what he was doing and he could not control himself.''

Another account reports that Odgren's attorney described him as "consumed with his delusion" and living in a fantasy world of violent video games and Stephen King novels.

What do people with Asperger's think about using the diagnosis to support an "insanity" defense? Some don't like it. Ari Ne'eman of the Autistic Self-Advocacy Network, one of President Obama's appointees to the National Council on Disabilities, is against it. In a post on the Neurodiversity.com Blog in 2006, Ne'eman wrote:

Returning to the real world, the last few years have seen an unfortunate tendency whereby Asperger’s has been claimed as a legal defense for everything from parole violations to vandalism and assault. Making that argument is not only legally and medically iffy, but also highly damaging to the advocacy of neurological diversity in general. To be recognized as equal to the neurotypical population we must shoulder the same responsibilities. If Asperger’s is a justifiable excuse for criminal action, what right do we have to demand an equal place in a society of law-abiding human beings?

Writing about the Odgren case, blogger Autistic Bitch From Hell characterizes the "Asperger Defense" as a bigoted stereotype, and blogger Harry Williams of The New Republic says, "lock him up and throw away the key." [EDIT: Harry Williams, in a comment below, explains that this is not really his opinion.]

There is a legitimate concern that the use of the "Asperger Defense" creates a false impression that people with autistic spectrum disorders tend to be violent criminals. But this doesn't mean that a defendant's autistic spectrum condition could never absolve him of criminal responsibility. The case of William Cottrell is a good example. Cottrell was involved with a group of so-called eco-terrorists who burned up a bunch of SUV's at car dealerships. He was convicted of arson and conspiracy to commit arson. A federal appeals court overturned his arson conviction because the trial judge excluded evidence that Cottrell had Asperger's. Because the arson conviction could have been based on a theory of aiding and abetting, a specific intent crime, the Ninth Circuit held that the exclusion of the evidence was error. "To the extent that the Asperger’s evidence was aimed at defeating an inference of Cottrell’s intent from the circumstances, it was relevant and could have assisted the jury’s determination of whether Cottrell had the specific intent required for aiding and abetting. The exclusion of that evidence was thus an abuse of discretion." United States v. Cottrell, No. 05-50307 (9th Cir. Sept. 8, 2009).

Because of the same issue of inferring intent from conduct, the Supreme Court of New Jersey overturned the conviction of piano teacher Franklin "Jack" Burr for child molestation. In that case, the prosecution argued that when Burr allowed students to sit on his lap, it was the "grooming" behavior of a sexual predator. The trial court excluded evidence that Burr had Asperger's. The New Jersey Supreme Court reversed the conviction because the excluded evidence could have explained "how defendant’s actions in allowing children to sit on his lap might have been innocent of a nefarious purpose, and to show that defendant might not have understood that his conduct could have been perceived as socially unacceptable." Furthermore, "the evidence would have educated the jury about oddities in behavior that defendant might exhibit in court, and it might have persuaded defendant to testify, knowing that the jury would not be inexplicably alienated by his odd behaviors." State v. Burr, 195 N.J. 119, 948 A.2d 627 (2008).

Evidence of a defendant's autistic spectrum condition in a criminal case can be relevant and doesn't always involve an all-or-nothing consideration of whether autism should be equated with violence or criminality. When you're asking a jury to draw a conclusion that when a person does this, he intends that, it's unfair not to tell the jury if the person's neurology might make that inference a faulty one.

In Odgren's case, I think he would have a hard time persuading the jury that, when he stabbed James Allenson in the heart, he lacked the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law simply because he has Asperger's. However, Odgren also expects to show that he has ADHD, depression, anxiety and possibly bipolar disorder. Could there be a combination of his cognitive functioning and circumstances that would result in his not understanding what he was doing, or his being unable to control his actions?