therapeutic jurisprudence. The study of the effects of law and the legal system on the behavior, emotions, and mental health of people: esp., a multidisciplinary examination of how law and mental health interact.

• ‘This discipline originated in the late 1980s as an academic approach to mental-health law.

Bryan A. Gardner, ed., Black’s Law Dictionary pg 933 (9th ed. 2009)

Posted on 25 September 2009

Florida Supreme Court Justice Barbara Pariente, center, shares a moment with University of Miami School of Law Dean Patricia D. White, left, and Bruce J. Winick, Silver-Rubenstein Distinguished Professor of Law and professor of psychiatry and behavioral sciences, during the dedication ceremony for the school’s new Therapeutic Jurisprudence Center. Pariente delivered the keynote address at the ceremony, which was held last Thursday at UM’s Lowe Art Museum and attended by several distinguished individuals, including President Donna E. Shalala and Board of Trustees Chair Phillip T. George.

The new center, which is directed by Winick, will study how courts can use therapeutic jurisprudence to help offenders solve the psychosocial problems that often are responsible for their repeated court involvement. The interdisciplinary center will conduct theoretical and empirical research; publish scholarly books, articles, and reports; and train judges and lawyers. It will also conduct community programs and host conferences, symposia, and other educational programs. In addition, the center will participate in existing and future clinical and skills training programs at the law school, helping to train students in the interpersonal skills needed for effective lawyering and counseling.

South Florida residents strike back at intruders

By Robert Nolin and C. Ron Allen

South Florida Sun Sentinel

September 11, 2009

With handguns and baseball bats, South Florida residents in recent days have been striking back at home invaders, beating and even killing those who violate the sanctity of their homes.

Two cases occurred in Palm Beach County. Thursday night, during a struggle, a Wellington homeowner shot and wounded one of two men who broke into his home. On Sept. 5, a group of men in a Lake Worth home turned the tables on a burglar, seizing his baseball bat and using it to break his arm.
And early Thursday in Miami, a man who jumped a fence and entered a home’s yard ended up dead after a confrontation with the father and son who lived there. His manner of death has not been released by police, who still are investigating.

Such instances are hardly a trend, experts say, but rather a fluke of circumstances. And they probably don’t represent an increase in frustrated homeowners fighting back.

“You have to look at each case individually,” said George L. Kirkham, a criminologist at Florida State University. “There’s a lot of tension right now in people’s lives generally because of the economy. I don’t know to what extent those kinds of factors may play into it.”

Use of deadly force against intruders is allowed under Florida law, but prosecutors and criminologists caution homeowners that there are limits to when they can harm an intruder.

Florida’s Castle Doctrine has long provided that homeowners can use deadly force against intruders, but the homeowner must have a reasonable belief that he or she is in danger of death or great bodily harm. When acting within the limits of the law, homeowners who kill or injure intruders typically are not charged.

“You can use reasonable force in self-defense or to protect your property,” said Bruce Winick, a professor of law and psychiatry at the University of Miami. However, he said, “I don’t think you can use this as a license to kill.”

For example, if an intruder surrenders or is incapacitated, a homeowner cannot use deadly force; to do so would risk criminal charges.

“We still have a bit of frontier mentality here in Florida, this idea of ‘Yes, you can shoot to kill,’ ” Winick said. “I wouldn’t advise people to kill people just because someone comes on your property.”

In 2005, the “Stand Your Ground” law went into effect. It expands the Castle Doctrine to say a person can respond to an attack with deadly force not only in the home but anywhere in public.

Winick fears the law can send the wrong message. “To the extent homeowners understand that law, it may give them a signal that they can do anything,” he said.

Brian Cavanagh, veteran homicide prosecutor with the Broward State Attorney’s Office, shares that view.

“The ‘Stand Your Ground’ law, I hate it, and I think I can speak for most prosecutors and law enforcement officers,” he said. “It’s a dangerous, dangerous law, especially if it’s misinterpreted by citizens who think it gives them the right to use unbridled force. It doesn’t give you or anybody a carte blanche right to use force. Anybody who thinks that way better read the law.”

Cavanagh, who makes decisions on whether to charge people in self-defense cases, said the threshold is whether people have a reasonable belief they are in immediate danger. If they don’t, they shouldn’t respond with deadly force, he said.

But in the heat of a confrontation with an invader, homeowners often don’t have the luxury of examining their emotions.

“People react in these situations,” said Jeff Marcus, chief of the felony division at the Broward State Attorney’s Office. “I doubt that they’re stopping to ponder the Castle Doctrine.”

Robert Nolin can be reached at rnolin@SunSentinel.com or 954-356-4525.

Copyright © 2009, South Florida Sun-Sentinel

Overcoming barriers

Posted By rcjones On June 5, 2009 @ 5:43 pm In Features, Priority: Slider Feature Item | Comments Disabled

During the No Barriers’ Science and Technology Symposium, Ninel Gregori (second from right), an assistant professor of clinical ophthalmology at Bascom Palmer Eye Institute, talks about a device called BrainPort that allows people with visual impairments to see. Participating on the panel with her are, from left, Stephen McCormack, CEO of Intelligent Medical Implants; Bruce J. Winick, UM professor of law and professor of psychiatry and behavioral sciences; and Anil Raj, a research scientist at the Florida Institute for Human and Machine Cognition.

No Barriers Festival shows off technology, highlights research that is helping the physically challenged

With his guide dog Bruno lying at his feet, University of Miami law professor Bruce Winick sat in the lobby of the Ritz-Carlton Coconut Grove hotel last Friday and removed his cell phone from his coat pocket. After placing the June 4 edition of The New York Times in his lap, Winick aimed the screen of his phone at the front page, took a photograph, then pressed a button and listened as a computerized voice read aloud an article on President Obama’s visit to Cairo.

“Rival messages as Obama lands in the Mideast,” the voice said in a clear tone, reading the headline of the paper’s lead story.

Over the past few years, such technology has helped the visually impaired Winick, diagnosed with retinitis pigmentosa when he was 32 years old, read and respond to his daily e-mails, prepare lectures for throngs of law school students, and write more than ten books and over 100 journal articles.

Innovation Village at Shake-A-Leg Miami featured demonstrations and products designed for the physically challenged.

Hundreds of people got a firsthand look at such high-tech innovations this past weekend at Miami’s first-ever No Barriers Festival, a four-day international gathering of physically challenged and visually impaired people, some of them soldiers who lost limbs in battle, and the researchers who are developing cutting-edge devices that could one day help them walk and see again.

Co-sponsored by the University of Miami, the festival included symposiums, clinics, and a regatta at various locations in Miami-Dade County. At Shake-A-Leg Miami, an aquatic center offering programs for children with disabilities, an Innovation Village featured demonstrations and the supervised use of the newest adaptive products.

UM’s participation in the festival is a result of the school’s involvement with the Clinton Global Initiative. As part of that association, UM took on a Commitment to Action, part of which was to work with Shake-A-Leg to help host and plan the No Barriers Festival, at which several UM students volunteered.

UM also had a strong presence at the festival’s Science and Technology Symposium, with several of the institution’s Miller School of Medicine researchers speaking at sessions on Friday and Saturday.

SEEING THROUGH THE TONGUE

Among the high-tech innovations showcased: BrainPort, which enables people with visual impairments to see. Developed by a University of Wisconsin-Madison scientist, the device works by converting images from a video camera to electrical impulses that are transmitted via the tongue to the brain of a blind person and turned into black-and-white images that the user can see.

Wounded warriors learned how to scuba dive at Innovation Village on the campus of Shake-A-Leg Miami, the primary location of the No Barriers Festival.

With more than three million visually impaired or blind people in the United States, “any device that can help [restore even limited vision] is essential,” said Ninel Gregori, an assistant professor of clinical ophthalmology at UM’s Bascom Palmer Eye Institute, who spoke at a No Barriers symposium session on technologies for the visually impaired.

Bascom Palmer, she said, will soon submit grants to evaluate the effectiveness and safety of BrainPort, testing the instrument in the lab and eventually allowing patients to take the device home.

But Star Wars-like technology such as BrainPort won’t be enough to help the blind and other physically limited people overcome all obstacles. Psychological and social barriers must also be conquered, said Winick, who is also a professor of psychiatry and behavioral sciences and was one of the presenters at the session.

Those obstacles, he said, some of which are imposed by people who unfairly label those who are physically challenged, can impede the social, educational, and occupational opportunities of people with disabilities.

“We need to break down those barriers and stigmas and show role models of physically challenged people with highly successful abilities,” Winick said.

Now in his 35th year at UM, Winick is an example of such a role model. At 64 years old he still travels the world, taking his guide dog to conferences in France, Germany, and Switzerland, and using a pedestrian GPS system that maps out routes and allows him walk city streets.

Winick’s acceptance of his condition was not always the case. For a long time he told no one about his degenerative eye disease, afraid that it would discredit him among his peers.

“I faked it for many years,” he said, “and a lot of people just didn’t know.” But he “came out of the closet and felt much more comfortable,” he said. “We need to be who we are. It’s lonely in the closet.”

OTHER SESSIONS

A Friday session on spinal cord injury included Damien Pearse, a researcher at The Miami Project to Cure Paralysis; Edelle Field-Fote, a professor of neurological surgery and director of the Neuromotor Rehabilitation Research Laboratory at The Miami Project; and Mark Nash, a professor of rehabilitation medicine and physical therapy. Barth Green, cofounder of The Miami Project and Shake-A-Leg, moderated the session.

Thomas J. Balkany, Hotchkiss Professor and chair of the Department of Otolaryngology, participated in a Saturday session on neural prostheses that was moderated by Bart Chernow, vice provost of technology advancement and a professor of medicine and anesthesiology.

“What we’re trying to do is advance technology to a stage that it can actually help human beings,” said Chernow, who co-chaired the festival’s Science and Technology Symposium. “It’s nice to do things in a concept phase, but unless you really realize the full potential of the technology, you never quite get to cross the goal line.”

Miller School of Medicine Dean Pascal Goldschmidt also addressed attendees during opening remarks on Friday, telling an audience that the United States is “extraordinary” because it supports individuals who are physically limited. “You can’t go to another place in the world where support for such individuals is greater,” he said.

Goldschmidt also outlined several Miller School initiatives that are assisting such individuals, noting its work in stem cell research, spinal cord injury repair, and its trauma center that helps train Army medics who treat wounded warriors from the battlefield.

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Copyright © 2009 e-Veritas. All rights reserved.

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

Download the full article in PDF format

MR. JONES: Good morning, Professor Winick. My name is Rick Jones from New York and I’m one of the members of the National Association of Criminal Defense Lawyers Problem-Solving Court Task Force. We are delighted to have you here this morning.

We are happy to be here in Miami and we are very pleased and grateful to the Carlton Fields law firm for allowing us this fantastic space and we’re excited to take your testimony.

We have, as you know, received your written submissions and have read them, I certainly have, and am excited to hear what you have to say and to engage in a conversation with you this morning.

As you can imagine when we decided to undertake this project about six months ago coming out of our Cincinnati meetings, we had no idea the sort of ground swell of interest that there was in this topic.

And as we have begun to think about traveling around the country on sort of a listening tour to give folks like yourself and other stakeholders in the specialty court world the opportunity to tell us what’s been going on for the last decade or two really, we have really sort of been overwhelmed by the responses.

And so we have a very full agenda today and I’ve been tasked with the responsibility of keeping us

Page 4

on track, and so we’ve got an hour to spend with you, and so what I would like to do to begin is to just — for purposes of the record, I’m going to read your very short biography into the record, and then we’re going to ask you for no more than 10 or 15 minutes of introductory remarks so that we have a wealth of questions that we’d like to engage in with you.

And so once you give us your opening remarks — and, really, if you could hold it to 10 to 15 minutes, that would be wonderful — we’re going to then just have a free-form discussion, okay.

Let me read into the record real quickly: Professor Bruce J. Winick is a professor of law and a professor of psychiatry in behavioral sciences at the University of Miami in Coral Gables, Florida where he has taught since 1974.

He’s the co-founder of the School of Therapeutic Jurisprudence. Professor Winick has authored numerous books the latest of which are Civil Commitment, a Therapeutic Jurisprudence Model, Judging and a Therapeutic Key, Therapeutic Jurisprudence in the Courts, Protecting Society From Sexually Dangerous Offenders, Law, Justice and Therapy, and Practicing Therapeutic Jurisprudence Law as a Helping Profession.

He has also authored more than 100

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articles and law reviews and interdisciplinary journals.

Professor Winick is co-editor of the American Psychological Association books and book series, Law and Public Policy, Psychology and the Social Sciences.

He’s a legal advisor and member of the Board of Editors of Psychology, Public Policy and Law, and serves on the editorial board of Law and Human Behavior.

Professor Winick has received numerous awards, including the University of Miami’s Provost Award for outstanding scholarship, the Thurgood Marshall Award of the Association of the Bar of the City of New York, and The Human Rights Award of the American Immigration Lawyers Association.

Professor Winick previously served as New York City’s director of Court Mental Health Services and is general counsel of its Department of Mental Health.

And let me just say before I turn the floor over to you, Professor, that I neglected at the outset to introduce my colleagues to you, and maybe better than me going around the table and telling you who they are, I will let them tell you themselves who they are.

MR. SCHECHTER: Marvin Schechter. I’m an attorney in New Jersey.

MR. CLARK: Good morning, professor. I’m Jay Clark. I’m an attorney from Cincinnati, Ohio.

Page 6

MS. SHIFMAN: Good morning. Gail Shifman from San Francisco.

MS. YOUNG: Good morning. Vicki Young from San Francisco.

MS. KELLY: I’m Elizabeth Kelly from Cleveland.

MR. JONES: So, professor, if you would give us the benefit of your opening thoughts.

PROFESSOR WINICK: Let me at the outset just say how delighted I am to be here before the NACDL. I have represented you in numerous amicus briefs and court appearances, including the U.S. Supreme Court. My heart is with you.

I practiced on the defense side from time to time although I’m largely a professor. I do teach advanced and constitutional law. I was once the general counsel of the ACLU of Florida here. When I was a young lawyer growing up in New York I argued the case that declared the New York death penalty unconstitutional.

And so my perspective in thinking about these courts is certainly that they should be consistent –fully consistent with the defendant’s rights and with constitutional values and I wanted to make that point at the outset.

Now, this movement, problem-solving courts, in many ways originated here in Miami. I mean, I

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suppose we could go back and look at the Juvenile Court that started in Cook County in Chicago in 1899 as a forerunner of these courts, but their modern iteration started here in Miami in about 1989 when Janet Reno and others started the nation’s first drug treatment court.

That court, as I think you know, was a response to the abysmal failures of the criminal justice system to deal effectively with the increasing problems certainly at that point of drug addiction. People would be convicted, sent to prison, get out and go right back to their habit. We had very high recidivism rates. There was a great deal of frustration.

The court found itself inundated. Too many people were being dealt with. So this was a response that tried to sort of steer it in a different direction and the idea is and was that people would be given an option to enter into what really is a diversion program.

There, of course, have been many diversion programs and this is, I think, best understood within that context, given an option to accept diversion in which they would agree that they have a drug problem, agree that they wanted to deal with it, and they would enter into literally a behavioral contract with the court agreeing to stay off drugs, to submit to a periodic urinalysis, to report to court every two weeks or so.

Page 8

And the judge would function in a very different way. This wasn’t judge/adjudicator. This is judge as a coach as part of a interdisciplinary team trying to help the defendant in accordance with his goal to get off and stay off drugs and they’ve been very successful, though I have my own concerns about the research methodology underlying the studies.

But I think we can do a better job of testing these things but it’s always hard for us to adequately fund and execute research studies of what we do in the courts, but I think certainly anecdotal evidence and the empirical evidence, although not perfect, certainly suggests great success that a lot of people go through this program and do well, graduate two years later. Their charges are dismissed. It gives them a new lease on life and many of them have not recidivated or recidivated to a much lesser extent than criminals that have not gone through them.

There are now probably 2,000 or so problem-solving courts in America, many hundreds in other countries, especially in Australia, New Zealand, to some extent England, Scotland, big time in Canada, and we’ve seen a variety of spinoffs including domestic violence court. We have one of the large domestic violence court programs here in Miami.

Page 9

Mental health court was started in Broward County by Judge Wren who is here and will address you today and there’s more than 100, probably several hundred domestic violence courts.

And we see various hybrid courts. We see juvenile drug treatment courts, dependency courts, drug treatment courts. We see reentry courts, sort of a back-end drug treatment court for people getting out of prison who enter into, again voluntarily, a form of judicially supervised parole that helps them get off their drugs. And so we’ve seen a proliferation of this model.

Again it’s not judges in the way we’re accustomed to. It’s not judges making decisions about disputed issues of fact for which we certainly want fair and impartial judges.

But I think the recognition, the reality is that judges do a lot more than simply decide disputed issues of fact. Often people are not pleading not guilty. They are guilty and in these programs they’re expressing a willingness and interest in dealing with a problem that they have, and the judge’s role is primarily to help them with that problem in ways that have been proven succesful. These programs are designed to avoid the revolving door that we too frequently see in our justice system.

Now, I might say at the outset in a

Page 10

certain sense that if we were designing this system would we want judges to play this role? I don’t think so. Judges aren’t clinicians. Judges aren’t really by temperament always suited to play this role, and yet I think it’s a pragmatic solution to a problem that’s created by sort of there being a vacuum in the community.

We don’t legislatively allocate funds to the kinds of programs that we need in our communities to prevent problems like drug addiction, spousal violence, child abuse and neglect, untreated mental illness. These are all very difficult psycho/social problems and we know how to deal with them. We have programs that are good for dealing with all of these kinds of issues but the legislature hasn’t adequately funded them.

I think we should have treatment on demand for these kind of problems in our communities. I think we should have preventative services so that people getting into these kinds of difficulties can opt for treatment, and I think we would avoid many of the problems including much of the criminality that often occurs when people’s problems remain untreated.

That’s how I think we should go. We don’t do that and as a result this is sort of, as I said, a pragmatic solution where the courts have stepped into that vacuum. Society doesn’t deal effectively with these

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problems with the result that they get dumped at the doorstep of the courthouse, and here the court has stepped up to the plate and has offered what I think is a very exciting program that has actually helped people.

We have to be very, very concerned about whether the people deciding to opt for these programs are doing so voluntarily and I’m fully in accord with that notion.

I think we’re thinking of, just as in plea bargaining, a voluntarily relinquishment of a known right or privilege. We want people to know what they’re getting into, to do it with eyes opened, to make voluntary choices and not coerced choices.

Now, of course, this is within the context of the criminal justice system, but that doesn’t mean that legal coercion any more than plea bargaining is legal coercion. this is

this is  The court basically said it’s okay to plea bargain in cases like Bordenkirscher versus Hayes.

The fact that the prosecutor is going to perhaps bring harsher charges if the defendant doesn’t plead is not itself coercion, the court had said.

And so again this, of course,  this is a different context but it is not legal coercion but I think it’s essential for a variety of reasons both constitutional and therapeutic for us to understand the strong value of having clients,

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defendants, make decisions with eyes open and voluntarily.

We need to do that because people are waiving rights. People are subjecting themselves to greater risk if they fail and, let’s say, their probation is revoked. Defense lawyers have an obligation to fully explain to their clients those options just as they do in plea bargain.

And I think that we need to do this on a voluntary basis for therapeutic reasons. People who enter into a rehabilitative or treatment program because they feel coerced into doing so are going to go through the motions maybe but not gain a hell of a whole lot out of it.

The ultimate objective is for them to, in accordance with their stated views, solve their problems, learn how to live a life without drugs, let us say, learn how to avoid domestic violence, let us say, if they’re people with untreated mental illness, learn the value of feeling better on the medication that, although not perfect, certainly decreases their most bizarre symptomatology and allows them to live more safely and effectively in the community.

These are good and important lessons. We shouldn’t ram them down people’s throats. We should not do it with paternalistic attitude. My fear is that judges in these courts are sometimes more paternalistic than I would

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like to see.

I think paternalism does not work. It’s better to give people choices and to allow them to make these choices, give them all the time they need to make these choices in a voluntary way and treatment will be better.

Now, as you know, I am the co-founder of a movement called Therapeutic Jurisprudence and there’s a relationship between that movement and these courts.

Therapeutic Jurisprudence is essentially a scholarly approach, an interdisciplinary approach to legal scholarship and reform that says let’s understand that law itself and how it’s implemented, how it’s applied. It’s a therapeutic solution that is going to have an impact on people’s emotional well-being.

Just as the folks in law and economics have shown us that law has economic impact, we should be concerned with laws and efficiency.

Our take is let’s be concerned with law’s therapeutic impact. Often law is anti-therapeutic. Let’s see if we can study that with the tools of behavioral sciences, understand law and how it functions a lot better, and let’s see if we can reshape law when consistent with justice values, when consistent with due process in ways that can make it less antitherapeutic and more of a

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healing force. In that sense, I see these courts as playing the therapeutic jurisprudence role. They are designed to help people when needed and desired.

Again I’ve been a long critic of paternalism. Therapeutic jurisprudence is not paternalistic. Paternalism is anti-therapeutic. But the idea is to understand law as a richer level, to see law’s impact on people’s emotional lives in this way, and so I Add here:

problem solving courts and…”

would see these courts as practicing therapeutic jurisprudence. I would see the relationship between problem solving courts and therapeutic jurisprudence as symbiotic.

I don’t approve of everything that these courts do. I certainly have concerns about the voluntary issues that I mentioned. I certainly have concerns about these courts being used to widen the social net and sweep into it people that would not otherwise have been charged with crimes. I’m a critic of that.

There’s a concern about are we making resources available on a selective basis only to people who go to these courts. I’m concerned with that. We should make resources available across the board to everyone in the community who needs them.

But with those caveats, I think these courts are doing a good job, are allowing us to understand a new potential of the courts to help people. I think

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that’s a good thing.

I think defense lawyers need to be on guard to fully advise their clients and to help them through the process, but I think on the whole, even if we wouldn’t have thought of this system, thought of having judges in this role, they’re doing good.

We’re trying increasingly to teach judges some of the skills they need to have to perform these functions, sort of psychological insight social work approaches and the like.

When I give these lectures to groups of judges there’s always a judge in the back row that says, “Professor Winick, I’m not a social worker” and I say yes, you are. When you’re playing these kinds of roles, when you’re dealing with problems of social pathology, of drug addiction, of juvenile delinquency sometimes, of spousal abuse, of child abuse and neglect, in effect you are functioning as a social worker. The court is functioning as a psycho/social agency and, in a way, consistent with due process. You can either be a good social worker or a lousy one so learn some of the stuff and get with the program.

Anyway, maybe I should conclude these introductory remarks so as to give you all an opportunity to ask me whatever you’d like to.

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MR. JONES: Thank you very much, professor. You made my job real easy and we appreciate those comments. We’re going to start our questioning with Mr. Schechter.

MR. SCHECHTER: Professor, I read with great interest the dialogue between you and Susan Stefan. It reminded me of the old Saturday Night Live stick, Point Counterpoint.

PROFESSOR WINICK: Susan just left. It wasn’t at all at that level. It was friendly.

MR. SCHECHTER: It was a friendly and profound discussion on some of the problems.

PROFESSOR WINICK: Exactly.

MR. SCHECHTER: But I was struck by her stark criticisms and so were you, I think. She said that mental health courts are nothing more than a way of segregating a segment of the population into one area much like what was done to Black Americans during the Civil Rights pre-era.

She also said that a lot of what you are talking about depends on a lot of ifs: If the judges are trained. If the defense attorneys understand it. If the police get greater sensitivity training.

I had the opportunity yesterday to spend a couple of hours in Judge Rosinek’s court, and I was struck by two things and I want to ask you. The first one

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is about choice and then I have a follow-up question.

Let’s talk about the choice issue. A number of the defendants who came in were newly arrested, had bails already set of $12,500 and up for minor purchases of cocaine on the street, were facing statutory sentences, as the judge informed them, of six, 15, and even in one case of 20 years.

The judge turns to the individual and says, “Now, would you like to go into a program? If you do, I’ll release you on your own recognizance and you start in the county program tomorrow.”

One, is that a choice? And, two, what does that say about the motivation of the defendant to really take care of their drug problem?

PROFESSOR WINICK: I think you put your finger on a very serious problem here. I would ask a few questions, kind of background so we can put that into perspective. Are these charges that every criminal defendant would receive in this context or are these special charges that are trumped up or made higher to sweep opposed the latter. people into drug treatment court? I certainly would be opposed to the latter.

But if we assume that this is the general charging pattern occurring here in Miami, the general bail pattern, then that’s the reality.

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Just as in plea bargaining, you know, we know the if defendant pleads not guilty he’s going to get sentenced to a certain period by the judge. If he pleads guilty he’s going to get a lesser term or maybe even probation. In the same sense as plea bargaining can be said to be coercive — and I see the coercive impact –this can be said to be coercive.

Now, is it really coercion? What is coercion? Again coercion in this context is not when someone comes up to you and puts a gun to your head. It’s a coercive offer. When someone is making an offer, the law does not treat it as coercion unless it’s unlawful or improper or immoral. And if you look at different areas across the board, contract law, plea bargaining, the like, informed consent in medical areas, I think you’ll see that people have to be able to make choices even though they’re often difficult choices. You know, the individual facing the choice to have triple bypass heart surgery or maybe you’ll die in a few months if you don’t, maybe you’ll die if you do. That’s a tough choice. But, of course, we’re going to say that as long as that individual has the information that’s needed, the time to make the decision, we’re going to

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consider it really a voluntary choice.

Let’s understand that the alternative would be to take choice away from people, and I don’t think we want to take choice away from people. We’re committed to autonomy within our constitutional vision. We want people to make choices.

So I would say this is a constrained choice. It’s not a totally free choice but very few choices in life are totally free. You know, is the decision to go to law school a totally free choice or is it shaped by a variety of social and family and economic pressures.

MR. SCHECHTER: Depends on your mother.

PROFESSOR WINICK: It depends on your mother, exactly. So, in a way, let’s put it in that perspective.

Now, I would not want to see the judge kind of milk that discrepancy. I would rather see the judge kind of allow the defendant to come to his own conclusions free of the potential pressures, let me put it that way, that those choices give you.

And I say that again because I do believe in voluntary choice and I do understand that we have to sometimes make hard choices as part of the plea bargaining.

But I would say that the defense lawyer has a very important role here, to mitigate, to take his

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client aside to explain the options.

The options might be better for the defendant if he goes for the program but, you know what, if he’s going to go for the program just to get out of perhaps a stiffer bail, a stiffer penalty or to get released on his own recognizance, it might not work.

If he doesn’t really want to do this –you know, “They’re going to drug test you every week or so. The judge is going to know if your urine is clean or dirty. If you don’t really want to get off drugs, if you don’t think you’re ready for that, don’t do this,” is what the defense lawyer should be telling the client and what the judge should be telling the individual.

If the individual does it with the wrong expectation and the wrong reasons and fails, that’s not good for the individual. He’s going to face stiffer time, and so I would say that we should make the choice very clear to the individual, “There’s some benefits here but only if you’re really ready to deal with the problems.”

You know, we call these problem solving courts as though the judge can waive the magic wand and solve someone’s problems. In reality the individual has to want to solve his or her own problems. The judge can assist but only assist. And so the real question is, “Are you ready to deal with that?” Maybe not, maybe yes.

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Maybe we shouldn’t have criminal offenses for certain types of possession of drugs. I’d probably buy that. But in reality we do criminalize a lot of drug offenses and so people who are caught with drugs are in that difficult situation. It’s a tough choice and I would say within the context of that tough choice, yes, we can say this is a voluntary choice even if constrained just as we would often in the plea bargaining context. And so the next question is how can the judge make the individual experience this choice as more voluntary and less coercive because, if he experiences it as coerced, it’s not going to work. It’s going to lead to psychological reactants. You know, I can make my kids wash the dishes but they’re going to do a lousy job. I’m going to have to wash them again. How can I figure out a way to spark their intrinsic motivation and get them into it? Maybe by giving them a reward, upping their allowance, whatever. How can we induce rather than coerce? And I guess persuasion works better than pressure and I think that’s the direction we have to go here both for reasons of respecting the defendant’s rights and for reasons of treatment efficacy.

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MR. SCHECHTER: Let me ask you a second question. The debate between you and Ms. Stefan seems to be very black and white. Hers is this doesn’t belong in the criminal justice system, period. If society wants to deal with mental illness and people in the community who commit crimes because of mental illness, the answer is to pour resources into mental health problems and alternatives. Your answer is that’s a great idea but it’s not a reality.

And so while you have genuine concerns about the court becoming involved in these matters, as a practical matter you want the courts to continue to be involved in this and to get all kinds of great and wonderful training.

Here’s my question. Why does it have to be black and white? Why couldn’t there be a middle ground which neither of you really seem to discuss in the debate that I read.

For example, in New York we have a system where retired judges become hearing judges and take motions to suppress and main — all kinds of other things away from the main judge. They deal with it in a separate courtroom and then, to make sure that it’s done right it’s subject to the approval of a sitting judge.

Why couldn’t we have some kind of

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administrative court system which has the of enforcement but is off to the side, would have all of the community resources? We wouldn’t have to indulge in this fiction that the defense attorneys are really doing defense work when they’re not? The prosecutor is really doing prosecution work in the drug court when they’re not? The judge is really a social worker and not a judge because that’s what he’s really doing? Why wouldn’t that kind of a system be a lot better and would you support that kind of alternative model? PROFESSOR WINICK: I think I might. I’d want to know a little more about it. You know, one of the reasons for success in these programs, I think, and the literature talks about it in terms of there’s magic in those black judicial robes, you know, the judge is a tremendous authority figure and many of the individuals in these judicial programs have never been exposed to an authority figure in the past that has cared about them, that cares about their well-being. This is a revolution and right there I think is an important part of the effectiveness. The judge is concerned. The judge cares. The judge is reinforcing their appropriate behavior, “Gee, I’m so delighted to see that you’re urine is clean,” let us say. “I’m so happy you’re doing so well. Look at you, you’re doing

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great. Let’s all give him a round of applause” and everyone in the courtroom does that. That sort of behavioral shaping, let’s call it that, in psychological terms is very effective.

If the judge wears that black robe and has the mantle of judicial authority and looks the part and does the same thing, I think that would work. I wouldn’t have objections to that.

MR. SCHECHTER: Okay. Thank you.

MS. SHIFMAN: Professor, I wanted to ask a follow-up question that you described that may or may not be present in a drug court situation, but when you step into a mental health problem solving court you now have a defendant who may not possess the ability to actually have free choice or to truly understand what is being said to them, and so I’m having trouble with your response in the context of a mental health court and how do you address that?

PROFESSOR WINICK: Representing people with mental illness is a real challenge for a defense lawyer. In all aspects of our criminal process we see increasing numbers of percentages of people in the criminal justice system who have mental illness, again showing the failure of our community mental health system which is not putting the money in. We don’t have the programs and so people are

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getting into tough difficulties, often getting arrested often for minor offenses. They’re urinating on someone’s lawn. Their trespassing into stores. They’re speaking belligerently. Their real problem is mental illness. In the criminal process generally, even though a lot of people have mental illness, we would ask the question: Are they competent to stand trial? And that’s a very low threshold of ability. Or is their mental illness so significant that it interferes with their ability to understand the nature of the proceedings and assist counsel in making their defense? Does it have those kind of cognitive impairments, communicative impairments that really should in a way disqualify the defendant from going forward with facing charges, with pleading, with having a trial? And that’s a small little category and it should be a small little category. And so certainly we should have competency assessments if the individual in mental health court appears to be so bizarrely psychotic that he’s not competent. That person can’t make a known and informed choice. But if he passes that threshold and if he is competent, then maybe we need more competence assessments in that context. Then just as in the criminal process generally, that individual will have choices within

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the context of the attorney/client relationship in criminal practice.

Generally defendants are making choices: Do I waive jury trial? Do I take the stand? Do I plead guilty? These are tough choices and the choices are made with the attorney guiding him as counsel, and I suspect that would occur here as well.

We have a model of, you know, the fully competent, voluntary person making choices. In reality, a lot of people with mental illness don’t meet that model, but a lot of people not mentally ill do not meet that model through reasons of literacy, language difficulties, or intelligence deficits or simply social deficits.

A lot of clients in the criminal process don’t understand the complex terminology, don’t understand their rights, are making decisions without full awareness.

But you know what it’s like in a medical practice. People go to the doctor and the doctor gives them the options and the alternatives and the costs and the benefits, and this and that, and they often say, “I don’t get this stuff, doc. Whatever you think.”

And I think we have that in the criminal justice process often too, defendants saying to the defense lawyers, “What do you think?” “I don’t know.” And I think that is the reality of the practice in our criminal justice

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system with people with mental illness even apart from mental health court.

So I would say, yes, it isn’t perfect in that sense but we’re doing the best we can. We should eliminate those who are so blatantly incompetent that they can’t make decisions, but if they past that threshold should we bar them from making a decision that might really be in their best interest because they have mental illness? Boy, I’m concerned that that would be discriminating against them because of their mental illness. Certainly Susan Stefan would join me in that concern.

MS. SHIFMAN: In the context of a mental health court, though, where, as Marvin described it in the drug court he was in yesterday, the defendant walks in. There’s this instantaneous offer and possible choice that needs to be made right at that moment in the door, and the defense lawyer is then asked with their client probably — or they have very brief contact with the client to make a sort of mental health assessment on their own about whether or not the individual has the capability of making the important choice to perhaps go into the diversion program — mental health diversion program, perhaps plead guilty, you know, a post-plea diversion sort of situation without really understanding the full context of that individual.

Isn’t that a lot different than the

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setting where you’ve got a more serious criminal case and the defense lawyer has the ability over time to make cogent assessments about –

­PROFESSOR WINICK: Let me fully agree with you. I don’t think we should rush — I don’t think we should pressure the defendant to make an instantaneous decision. To the extent that’s happening, I’m against it.

I think we should slow it down. I think we should assess the defendant so that we adequately understand what his abilities are. I think we should spend the time with the defendant to explain his options, and only then should we honor choices that allow him to make those decisions.

In reality we need more resources in the criminal justice system maybe to do that. We need to do that in the non-mentally ill criminal justice system as well. We need more Public Defenders if we’re truly going to honor the right of effective assistance of counsel. I fully, fully, fully agree.

MS. SHIFMAN: Are those assessments happening in the mental health courts on the front side or are they happening post diversion?

PROFESSOR WINICK: You mean, competency assessments? MS. SHIFMAN: Competency or just straight out

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psychological assessments.

PROFESSOR WINICK: You know, we have Judge Wren with us so maybe we will hear more from her about the realities in her court. I don’t know the answer to that. I would hope they are. I would like to see that occur. I think that the criminal defense lawyers should insist on it if they’re uncertain about, you know, what to do in the circumstances. Achy versus Oklahoma, a Supreme Court case, that allows an indigent defendant to have had the court appoint a forensic evaluator to assist in determining what defense to make. Should I make an insanity defense? Is my client incompetent, etcetera, etcetera.

I do think we need to slow it down both with respect to the defendant’s rights and to make sure that the decisions are being made in ways that will more likely produce an effective rehabilitative response if the defendant decides to go in that direction, so I would say yes, we should do that.

MS. YOUNG: I have a question. Vicki Young.

When you’re talking about addressing a problem and the need for an authority figure, that that’s the role that the judges play in these courts, and you say, well, judges, when you make this presentation, someone is always in the back raising their hand saying, “Well, I’m not a social worker” and you’re saying, “Well, you are.”

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PROFESSOR WINICK: You’re functioning as one, right.

MR. YOUNG: How do you view the role then of the prosecutor and the defense attorney in that setting because what you’re — if you’re going into a treatment or restore the justice mode, aren’t the main players the judge and, let’s say, a probation officer, not that the person has been convicted yet, but what roles do the attorneys have in that system?

PROFESSOR WINICK: They’re more minor roles I think and I think we all need to think through a lot more than we have what the role of the prosecutor and the defense attorney through these processes should be.

To some extent there’s talk about relaxing the advocacy role, the defendant being part of the advocacy team. That gives me some concerns. I understand it. I understand that if you’re representing a client who has said, “Gee, I do want to deal with my drug addiction. I do want to take my psychotropic meds. I do realize I do feel better and do better when I’m on them. Help me do that,” that once the individual has signed onto that program, hopefully in a very voluntary, understanding way, maybe part of the lawyer’s role is to help him to succeed but also to protect his legal rights and interest if, let us say, he’s violating the terms of the program. His urine

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is dirty or whatever.

If there’s a factual dispute about that I would certainly expect the defense attorney to advocate for his client that, “No, that’s a mistake, judge.” But if it’s not a mistake and the defendant in advance has agreed to this program and it seems like the defendant wants to get off his drugs, then I guess the defense is put in a very strange position for defense lawyers because they’re kind of standing by watching this process, trying to I think assist the process in the goal of rehabilitation.

I do think, though, they should always be mindful of protecting their clients’ liberty and rights in that process. It might be a somewhat relaxed advocacy role because it’s not an advocacy context often, unless maybe there is some allegation  that the defendant hasn’t complied, in which case I think it shifts immediately to an advocacy role and the lawyer needs to follow that.

If not, and the defendant is reporting and doing well, I mean what’s the defense lawyer and the prosecutor’s role? They clap with the others. They encourage their client. Again it’s a strange role and I know we’re all on the defense side wondering about that role, but it’s also a strange role for the judges.

And yet here is a pragmatic program that’s helped a lot of people and yet we don’t seem to have

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the societal commitment and resources to do the community programs, the preventative programs that we need to do, the assisted community treatment programs, the treatment vans that we should fund in our community for people.

There’s a lot of things we should be doing. I think we as lawyers who know about these problems need to be better advocates in our legislative processes but in reality it’s not happening and, as I said, this is a pragmatic solution and I think it’s better than the alternatives.

MS. YOUNG: But the way — as Marvin described, it seems to me that the validity of the court depends a lot, as you say, that they’ve voluntarily chosen to participate, it’s as knowing as it’s going to be a knowing decision to go into the mental health court or go into the drug court, and that it’s the role of defense counsel to make certain that the defendant understands what they’re getting into.

But if that decision is really being made in the 15 minutes after they come out of the holding tank and the next day after they are arrested before you see all the police reports, the attorney doesn’t have the information to help someone make a knowing decision but that’s when the main decision is made. And once they decide to go into the courts, at this point it’s sort of –

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PROFESSOR WINICK: I agree.

MS. YOUNG: I’m not sure what the role is after that point.

PROFESSOR WINICK: If I was on an NACDL Task Force I would make that recommendation. I would say you should not rush these things so quickly, and you should have adequate time and resources and opportunity for the kind of counseling that we all know should occur between attorney and client, and if that means hiring more defense lawyers, we sure should do it.

MS. KELLEY: Elizabeth Kelly from Cleveland.

Maybe I’m looking for a problem where one doesn’t exist but I see many of these various problem-solving courts’ success being predicated on the judge who presides over them, and I see a potential for these courts basically developing into a cult of personalities, and although that might not happen in a major metropolitan area, I can see a greater potential in the smaller communities.

And I’m also wondering about the success of a given court after a judge retires, a judge who may have a very good commitment to that particular issue. Could you address those concerns?

PROFESSOR WINICK: Yes, I think you make very valid points. I would agree with them. To some extent,

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you know, the success of the program might turn on the idiosyncratic nature of the judge. Some judges are great at this. Some judges have natural clinical, social worker skills. They know how to talk to people. They know how to respect their dignity and to make them feel valued and to pump up their feelings of self efficacy, which is so, so important. A lot of these folks have such a low opinion of themselves, such a low sense of self effectiveness that they’re just failing at whatever they do.

Some judges are so good at this, others aren’t, and I do think you’re right, we do need to do more training, more standardization of the role of these judges. I would love to see us teach these skills in a more effective way and more personal way to judges who play these roles.

I think we have a responsibility –judges have a responsibility to do this, to learn some insight from psychology and social work and so forth, and I think this is a training challenge that we should try to deal with.

Also I do think that you’re right, that there is a potential here for judges playing this role to abuse their authority, to act too paternalistic. And, again, whenever I give these lectures to judges I tell them, “Don’t be paternalistic. It doesn’t work. It’s

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offensive. None of us like paternalism. You’re much better off giving people choices.”

Are some judges overly paternalistic? Yes. Do some judges abuse these roles? Yes. And I think we need to be concerned about that and I would hope that would be part of the report to warn us, to warn the system about judges who might go off the deep end in that regard.

You also make a point, which I agree with, what happens when some charismatic judge has done a good role in these courts retires and some other judge gets sent in who might not have the ability. Well, you’re right, and the program might not work.

We have to be very careful in who we select to play these roles. We probably need to give some thought to rotating them in and out. There may be some burn-out in this area as there is in any area of judicial work.

But I think these are the kind of problems we see all the time on the judiciary. We need to be on guard about them. We do give judges a lot of power. Some of them abuse that power. It’s the role of defense lawyers to police that. It’s the role of our appellate courts to police that. We should be concerned about it. I’m concerned about it. I agree with you.

MS. KELLEY: You said we need to be doing a

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better job of training. Who is the “we” in your

sentence –

PROFESSOR WINICK: Good question.

MS. KELLEY: — and would you be in favor of a type of sort certification or other type of credential.

PROFESSOR WINICK: You know, I haven’t thought about the certification but it might be a good idea. We certainly have judicial training in general for judges who become new judges. To some extent, I think judges who are appointed to playing these roles do need to have some judicial training not only about the rules of evidence and how to conduct the courtroom, but also in some insights from psychology and social work.

You’re dealing with — you know, in drug court you need to understand substance abuse issues, how the drugs work. You need to understand the idea that recovery isn’t a straight line. People fall off the wagon. Instead of coming down heavy on them you need to encourage them to get back on the wagon. It’s a process and so we need to teach that to these judges.

Certainly judges playing the role that Judge Wren plays needs to understand psychopathology and how the medications work and some clinical issues and clinical jargon and ditto for domestic violence court. So we do need some specialized training of judges in these

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areas.

There’s a lot of tricky issues with patients with dual diagnosis, have substance abuse and mental health problems, and I think the National Judicial College in Reno periodically offers a course in that. Do all judges who play these roles take those courses? I doubt it. I think it probably varies.

Who is the we? I guess the judicial process. All of us have to be concerned that judges receive appropriate training. I’m not sure who the “we” is but I certainly do think it would be appropriate for a task force making recommendations in this area recommend that judges have appropriate training or retraining. I don’t know about certification. I’d want to think about that.

MR. JONES: We’re going to hear from Jay and Marvin and then I have one final wrap-up question for you.

MR. CLARK: Professor Winick, you at some point in your comments gave us three topics that we should be concerned with: The voluntariness of the choice issue; the widening of the net and charge others who may not be charged; and then what I’ve got, the case of the improper allocation of resources to the detriment of others.

We spent a lot of time talking about the choice issue. Could you talk about the last two, the

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widening of the net and how you would maybe remedy that, and the improper allocation of the resources.

PROFESSOR WINICK: I would not want to see people charged with these kinds of offenses just to sweep them into drug court or mental health court who would not prior to these kinds of judicial models have been charged. So I guess what that means is that we have to have a good understanding of what the baseline is, what prosecutorial charging patterns seem to be, what police arrest practices seem to be.

And maybe that’s not an easy question but I suspect that defense lawyers in the communities have a fairly good understanding of this, and I do think it’s very important that we not, as I said, sort of widen the social net.

I think these programs are good and help people. As I see it, they’re the lesser of evils in a certain sense and so I wouldn’t want to see us sweeping more people into these programs just to give them this door out. That would validate much of Susan Stefan’s criticisms and to that extent I would agree with her.

Susan and I were colleagues on the faculty and we’re both scholars in the area of mental health law, and we actually agree on a lot of things, although we disagree on some things, and we aired our

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differences in the pages of that forum in a way that we thought would be a very good way of probing our differences and discussing the issues.

MR. CLARK: Professor Winick, on the charges that would not otherwise be charged, who do you define that, as people who are not guilty but are being charged in a sweep? I want to make sure I know what you mean by that.

PROFESSOR WINICK: Police officers arrest practices and prosecutorial charging practices. If we see a difference once a court of this kind grows up that all of a sudden they’re arresting more people or charging more people just to give them the, quote, benefits of the court, that’s what I mean. That would be of concern.

As I say, we have to understand what the baseline is and that might not be easy but as defense lawyers, public defenders offices would have a good idea of this. Again I do think we need to develop alternatives to these programs. For example, in mental health court, let’s train the police not to arrest these people. They don’t belong in the criminal justice system. We could have those roving, assertive treatment vans that could help them, induce them to take treatment, take them to their treatment clinics and the like that would be

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preferable.

And if we can teach our police officers to understand mental illness, to understand community resources, and to themselves divert people to those programs rather than take them into the criminal justice system, to the jails, that would be better. This is the Memphis model and I’m fully, fully, fully in favor of that.

And I do think we should have more preventative resources in the community, as I said in my opening statement, and so this is a pragmatic solution. But until and unless we achieve that millennium — and I would hope we would try to do that — I think these programs are doing more good than bad and are in effect helping people and, therefore, they’re a welcome edition to the criminal justice system.

And, you know, given the numbers, it’s an edition that has been accepted by the judiciary and by the public. I think in the early days there was a lot of controversy, “What? That’s a judge. A judge doesn’t do that.” I think they’re more respected now by fellow judges and a more accepted part of the system and so we need to think about, okay, how do we prevent the type of abuses we’ve have been talking about.

MR. SCHECHTER: Professor, I’m Marvin Schechter.

Yesterday there was a very telling moment

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in Judge Rosinek’s court. A client of the Public Defender came before the court who had disappeared from his program since August and nobody knew where he was, and all of a sudden he came out of the audience and he stood up at the podium, and much to the surprise of the attorneys and everybody in the courtroom he said, “I’m here.” And Judge Rosinek said, “Where have you been?” He said, “I’ve had a lot of problems. I can’t afford to pay the program so I dropped out for a while but here I am.” And the judge said, “Well, you can’t do that” and the judge was clearly upset. It was the one jarring moment I think in the several hours that I had seen him operate.

And he then turned to what — I call them my client and I was just participating from the audience. I was an observer. And he turned to the client and he said, “Are you dirty right now?”

PROFESSOR WINICK: “You’re dirty” meaning “Are you on drugs”?

PROFESSOR WINICK: Yes. And the client said, “Yes.” And the judge followed up with the question, “What are you using?” And he said, “Cocaine.” And the judge said, “When?” And he said, “Yesterday.” Now, you can imagine for a criminal defense attorney sitting in a courtroom hearing that exchange what that does to you. You know better probably

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than most that we are deeply bound under the code of ethics to protect even to the point of going to jail the attorney/client privilege.

So here’s my question. Maybe what’s needed is an end to the charade that the defense attorney sitting there as a lawyer in this context of violating what clearly is one of the disciplinary rules that swear us –swear us to protect the confidences of the client and have a new ethics code inserted into the canons to protect the defense attorneys and/or the prosecutors in the context of these specialty courts so that we no longer hear — and this is what I want you to address — so we no longer hear from NACDL members around the country this refrain, “I love the drug court. I want it to work. It’s good for my client. It’s better than jail but I cannot continue to work in that court and be true to the canons of ethics and to the client/attorney privilege.”

What should we do about that? Would you support a new canon like that and have you worked on one or in your experience ever talked to a judge or a lawyer about that?

PROFESSOR WINICK: Let me just try to understand a little better. Was it the defendant who admitted he used cocaine –

MR. SCHECHTER: In open court.

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PROFESSOR WINICK: — or his lawyer?

MR. SCHECHTER: No, in open court.

The client admitted. The attorney was seated at the table maybe five feet, never said a word and it went into the record.

PROFESSOR WINICK: Here is what I think of the circumstance. This is a treatment program and in general — and the judge is part of the treatment program. In general when people enter into treatment programs, a variety — especially drug treatment programs, a variety of federal law provisions protect confidentiality. We may need to clarify the reach of those provisions in this context.

It seems to me that a defendant who in the context of a program admits that he has used cocaine should not have that statement used in evidence against him, kind of almost as an adjunct of a medical — of a doctor/patient, therapist/patient communication.

I would like to see us explore the confidentiality of the statements made there. Now, I think in practice that guy is not going to be arrested. Prosecutors don’t seem to charge in those circumstances. They’re not subpoenaing people at the programs to find out if they’re urine is dirty and then slamming them. I think that’s right. If it’s not right I would be very concerned.

But I think if that is right, maybe the

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practice reflects the fact that we understand that this is a treatment program and we can cloak it with a certain agree of confidentiality.

So my first reaction is let’s think that through. Secondly, is there a need for us to rethink professional ethics in this context? Yes, I think there is. Is there a need for us to reconsider professional ethics? Yes, I think there is and maybe because this is a different ball game, maybe because judges have a potential for abuse that we need to think about. Judges should not be paternalistic and this brings forth their paternalism.

I do think we need to creatively think about the roles of defense lawyers, prosecutors and judges in these courts, and to think about whether we need to vary ethical standards somewhat and I’m not sure exactly where.

Have I myself thought or written about this? Not a whole lot actually, but I do think it’s a very important and interesting challenge and I would certainly welcome the NADCL to make a contribution in that area. And I think I have suggested this to judges groups, that they developed again ethical guidelines and the like that are more particularized to this role so I think those are very good ideas.

MR. SCHECHTER: Thank you.

MR. JONES: Thank you, professor. This has been

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a very fascinating and incredibly useful conversation. We could not have asked for better opening act as we start our listening tour in our public hearings around the country. We greatly appreciate you being here and I know that we have our next set of speakers so thank you very much. I’ve been asked to give us a five-minute bathroom break and we will do that and we’ll reconvene in five minutes.

PROFESSOR WINICK: Thank you. My pleasure. (Time noted: 9:26 a.m. to 9:33 a.m.)

MR. JONES: All right. We’re going to start. We’re once again honored to have Judge Ginger Lerner-Wren with us this morning to talk about the work that that she does in Broward County running that mental health board. Once again for the record — and I think before we actually get into the substance of Judge Wren’s comments, if we could just — I know there are a number of people in the back and I know you all know who we are. Tell us very briefly who you are. That would be wonderful.

MR. HOOKER: I’m Bob Hooker. I’m a public defender in Puma County, Arizona. I’m a member of the NACDL court.

MR. JONES: Thank you for being here.

MR. DE MARIA: I’m Eric De Maria, assistant

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.