I think the courtroom conversation became somewhat confusing because the defense was talking about autism and courtroom demeanor as well as behaviors that can be attributed to his autism, but might be viewed by the jury in a negative way i.e. that he's trying to hide a crime. And the judge picked out one part of that, the speed at which crime occurred, and the conversation suddenly veered toward that.
In the State's Reply to Defendant's Response to State's MIL RE: Neuropsychological and Psychiatric Evidence, the state said (bolded by me):
Defendant argues he “has a developmental coordination disorder” that means it was “not possible for him” to commit these crimes because he lacked the necessary “speed and coordination.” (Mot. at 7-8.) But that is not what his neuropsychological evaluation found. The expert who conducted the evaluation, Dr. Orr, listed “Developmental Coordination Disorder” under the title “Diagnoses for which Bryan Met Criteria in the Past.” (Ex. D7-B, p.16 (emphasis added).) Dr. Orr clearly explains that “motor problems have not impacted his functioning significantly in many years.” Id. at 19 (emphasis added).1 To the extent Defendant currently has any motor impairment, even according to his own expert, it affects only his “fine motor dexterity and vulnerabilities in visual-motor functions.” Id. The examples she uses for “fine motor dexterity” include when he had “poor handwriting” and “trouble tying his shoes” in the past. Id.at 4. She asserts he continues to have difficulty with “manipulation of tools even as an adult” but only “per parent report.” Id. She also points to her observations during the examination that Defendant “moved his whole arm and repositioned his upper body slightly to manipulate the items effectively.” Id. at 7. No reasonable juror could infer from those observations and a diagnosis that applied to Defendant “in the [p]ast” that it was “not possible” for Defendant to commit the crimes with which he is charged.
Most tellingly, neither of Defendant’s experts drew that or any similar inference. Neither expert offers any opinion on whether any of his conditions made it more or less likely that he was physically capable of committing the crimes charged. Thus, the expert opinions themselves are inadmissible during the guilt phase because they are not relevant to guilt See I.R.E. 401;I.R.E. 402. And Defendant’s attempt to stretch his experts’ opinions beyond what they say is barred by Rule 403 as unfairly prejudicial, misleading to the jury, and a waste of time.
During the hearing, the defense starts at about 6:56:20 and at some point EM says:
"As for issues that relate to state of mind, it does depend on what the state offers. We agree with the state on that aspect. If they stay away from the issues regarding cleanliness, and a missing shower curtain, and speed in which the crime occurred, and wearing gloves with some sort of negative attribute that he is doing that to hide DNA as opposed to what's going on with his autism, it's our position that that opens up the door to the opinions that the experts have expressed. As it relates to--"
And the judge interrupts her here, to focus on that statement about speed in which the crime occurred and now the conversation has turned away from the autism diagnosis to what the state says has not been supported by the experts.
Judge: "I didn't understand--and the reference to speed at which the crime occurred."
EM: "Well, there's the state, there's a disclosure by the state of one of their detectives--"
Judge: "I understand the detective's statements and you have in the report a reference that he has a historic fine motor skill issue. And you have no expert testimony that he would have been incapable of doing this."
EM: "I don't know that we would seek to offer an opinion that took it that far into the jury province about no capability to do this, but in terms of his fine motor dexterity issues--"
Judge: "All that's disclosed is historic issue with some fine motor disabilities like not being great at tying his shoes."
EM: "Well, I disagree that that's all the experts said. The expert indicates he has problems with dyspraxia and went into great detail about the issues that what she saw with fine motor dexterity as it presents to this day. He did absolutely have those issues that are present child and there are still things that are present in him, you know to the extent that that's an issue, the best person to explain that to you is not me, but perhaps more of an offer for proof beyond this outside the presence of the jury, so what you would know, the testimony would be that we would offer on that issue. Or giving us direction to specifically go get information about that issue that we might try to elicit, but I don't want my representation to you as a non-expert as a lawyer making this argument. I'm not qualified to tell you what's going on with his exact dexterity issues. He has fine motor skill issues. He presents odd physically. And it is a different presentation with what he's got than someone who might be sitting in a courtroom perhaps with missing a hand for example. Another significant issue that's impacted by his Autism Spectrum Disorder is his decision and ability to testify..."
And she goes on with that and then the prosecution comes back around 7:09:50
BT: "In response to Your Honor's question about, or observation that there's no evidence from an expert here that the defendant is incapable of committing these crimes, the response from the defendant was well, yeah, that's right, which is exactly our concern because the defendant in his filings took what little was in the expert disclosures and stretched it out to this conclusion that the defendant is incapable of committing the crimes when the experts don't say that. I mean, they are essentially creating an opinion that doesn't exist. So, Your Honor, our request stands. Certainly the evidence that's being proffered about his demeanor's not relevant, it shouldn't be admitted, and if there's an issue that comes up about the defendant on the stand and his appearance there I think we can address that as it comes up. Likewise if the state opens the door to questions about the defendant's behaviors, which we are not intending to do, we can address the issue at that time. So we'd ask the court defer any kind of ruling on those hypothetical situations."
JMO
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