Published in the Boston College Law Review, Issue 50:3 (May, 2009

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Palm Beach Post Staff Writer

Saturday, April 18, 2009

WEST PALM BEACH – Milagro Cunningham’s lawyer described him as autistic and argued before a jury last week that he was insane at the time he beat and raped an 8-year-old girl, then left her to die buried under concrete blocks in a Lake Worth trash bin.

The case may be among the first in Florida in which autism was termed a mental illness that formed the basis of an insanity defense.

Elsewhere, attorneys for diapered NASA astronaut Lisa Nowak, who was charged with attacking a romantic rival in February 2007, have said she suffers from a high-functioning form of autism called Asperger syndrome. They have preserved Nowak’s right to argue that she was insane at the time of the encounter because of Asperger syndrome and a host of mental afflictions.

Other autistic defendants claiming insanity or asking for relief based on their disability include a Massachusetts teenager who fatally stabbed a classmate, a Minnesota man who killed a young woman whom he had lured to his home via craigslist, and a New Jersey man convicted of sexually assaulting a child.

With autism’s rising profile and its skyrocketing rates of diagnosis comes the question: Is autism-made-me-do-it a new defense du jour?

Bruce Winick, a University of Miami professor of law, psychiatry and behavioral sciences, said it’s an extremely rare claim in an insanity case. And it is far less likely than other afflictions, such as schizophrenia, to be a successful defense under Florida law, he said.

Florida’s insanity law requires that a person have a mental infirmity, disease or defect and, because of that condition, not know what he was doing or its consequences, or not know what he was doing was wrong.

Most often, Winick said, insanity defenses involve some kind of psychosis or cognitive impairment.

“For example, ‘I thought I was squeezing a lemon, and it really was a throat,’ ” Winick said.

Autism could prevent a person from being able to distinguish right from wrong, “but in most cases it won’t,” Winick said.

Autism is a developmental disability and a neurological disorder that affects normal brain functioning, according to the Autism Society of America. It cripples social development and communication.

Dr. Jon Shaw, chief of child and adolescent psychiatry at the University of Miami’s medical school, said autism rates have soared in part because of better diagnostic tools. Twenty years ago, the rate was three or four per 10,000 people; today, some estimate it at one in 150, he said.

There is no scientific correlation between violence and autism. To equate autism with legal insanity is completely “fallacious,” Shaw said.

In Cunningham’s case, five doctors differed on whether he is autistic. Two said yes; three said no.

Cunningham, now 21, confessed to police that he was angry at not being invited to the movies by other teens in the house where he was staying when he attacked the girl in May 2005.

“Something in my mind told me to do something bad,” he told police. “I’m so sorry. I can’t control myself.”

Dr. Abbey Strauss, a psychiatrist, testified that Cunningham was autistic and, separately, insane at the time of the crime. He said many people with autism have brain abnormalities, documented in sophisticated medical imaging called PET scans, as in Cunningham’s case.

“You have to remember … people who have autism and bad PET scans are known to be impulsive, known to be aggressive and can’t control themselves,” Strauss testified.

Jurors rejected Cunningham’s autism-and-insanity claim and convicted him of attempted second-degree murder and other charges. He could face up to life in prison when sentenced next month.

For the girl’s mother, Machele Humose, the defense’s claims seemed invented.

She knew Cunningham before the attack and called it “crazy” and “ludicrous” that he was autistic.

“He’s a pedophile. That’s his problem,” Humose said.

Abstract:

People suffering from mental illness are being referred to the nation’s Domestic Violence Courts, which combine civil and criminal jurisdiction. However the typical diversion programs available, such as batterer’s intervention, anger management, counseling programs for drug abuse, etc.,  are inadequate for those with serious mental disorders

As a result, the Miami-Dade Domestic Violence Court has developed a new approach for dealing with domestic violence offenders whose violence is a product of their mental illness. Various mental health court techniques, such as judicial interpersonal skills, motivational interviewing, and behavioral contractng are used to facilitate mentally ill domestic violence offenders’ acceptance of treatment for their illness, i.e. being INMT.

Hon. Debora White-Labora pioneered this new judicial-therapeutic model, and if she is able to attend she will relate historical and forensic insights regarding the process and field questions from attendees

Two forensic psychiatry fellows at U.Miami Med.Schl.Dept.Psy.& Behav.Sciences, Drs.Cureton & Ohm, will elaborate on this new judicial/therapeutic model and follow with several case studies while commenting on surfacing clinical issues.

Bruce Winick, U. of Miami Prof. of both Law and of Psychiatry, who is co-founder of therapeutic jurisprudence and was General Counsel of the N.Y.City DMH,MR,and Alcoholism Services,   will situate this model within the context of other problem-solving courts, describe usual diversion methods, and discuss how this court uses principles and approaches of therapeutic jurisprudence to reach better results.

Anthony Castro, Asst.Prof.of Clinical Psychiatry, U. Miami will report the results of a retrospective and longitudinal  study of 20 cases from this court over a two year period, comparing them to a sample of non-mentally ill perpetrators processed by the court in the same period.

Event Brochure

Autism is not a defense against a violent crime, said Bruce J. Winick, a UM law professor. For the state to prosecute, Brinegar merely has to be competent to stand trial.

The real question is whether he knew right from wrong.

”If he knew he was doing wrong, even though he might not appreciate his feelings, it wouldn’t amount to an insanity defense under Florida law,” Winick said.

Abstract:
People suffering from mental illness are increasingly referred to the domestic violence court. Yet the typical diversion programs available, including batterer’s interventions programs, are inappropriate for those with serious mental illness. As a result, the Miami-Dade Domestic Violence Court has developed a new approach for dealing with this population that applies mental health court techniques in domestic violence court. This session will described and evaluate this pioneering model. A Miami-Dade County Domestic Violence Court Judge will describe the new therapeutic model that she pioneered. A Professor of Law and Professor of Psychiatry and Behavioral Sciences, an expert on therapeutic jurisprudence, will situate this model within the context of other problem-solving courts and discuss how the court uses principles and approaches of therapeutic jurisprudence. Next, a recent graduate of the Forensic Psychiatry Fellowship Program at the University of Miami, will report the results of a retrospective and longitudinal study of 20 cases in the Domestic Violence Mental Health Court followed over a two year period, comparing them to a sample of non-mentally ill perpetrators processed by the court in the same period.
Chair:
Bruce Winick
Discussants:
Debra White-Labora, State of Florida 11th Judicial Circuit the Miami-Dade County Court
Yanira M Olaya, University of Miami