robert perske and disability law

There is some justice in the fact (whether it is poetic justice or not I leave to others) that Robert Perske, one of the most significant advocates for the disabled in our day, was born the same year (1927) that Buck v. Bell, described in the previous essay, was handed down. Thus, 1927 functions not only as a nadir but also as a sort of zenith. I met Robert Perske last week in Minneapolis when I was at a conference on police/legal and other issues surrounding people with autism/Asperger's. I was charmed by his graciousness and impressed by the steadiness of his commitment for nearly fifty years to the cause of the mentally disabled. Robert Perske is the only non-lawyer to be awarded the Paul G. Hearne Award for Disability Rights given by American Bar Association's Commission on Mental and Physical Disability Law (2002). His genial and quiet manner, careful attention to detail, and gently moral language reminded me more of a Methodist minister (which he actually is) than a trial attorney (which he isn't). It seemed to me that his whole manner, which has been incredibly effective over time, arose out of long dealing with people of limited mental capacity. Maybe, indeed, that is why he has been so effective in dealing with those who us who claim to have "normal" mental abilities.

Robert Perske and The Legal System

Over the years Perske has been most concerned with the problem of what happens to mentally disabled people when they encounter the legal system. He wrote Unequal Justice: What Can Happen When Persons with Retardation or Other Developmental Disabilities Encounter the Criminal Justice System (1991) to explore this issue. The book gives practical pointers on how the "disabled" approach the legal system differently than you or I. Chapter 3 of his book goes through 15 "misunderstood responses" that a mentally disabled person might communicate to an investigator or police officer which might end up implicating the disabled person in a crime which he didn't commit. Let me provide that list here.

1. An Ordinate Desire To Please Authority Figures. This might lead to agreeing with police suggestions regarding culpability, rather than honestly answering questions.

2. The Inability to Abstract from Concrete Thought. One of the Miranda warnings which a defendant might give up ("waive") is the right to counsel. When asked, "Will you waive your right?" a person with a mental disability may actually wave his/her right hand.

3. Watching for Clues from Interrogators. In other words, a mentally-disabled person strives to understand what an interrogator suggests about a situation, and then mimics or completes the thoughts. Sometimes this is in the form of echolalia--or repeating the last words of the question posed by the interrogator.

4. The Longing for Friends. A mentally disabled person might interpret someone's desire to communicate with him as tantamount to wanting to be his friend. By all means, don't do anything to upset your new friend!

5. Relate Best with Children or the Elderly. The case of Hugh Blair of Borgue, discussed here, illustrates this. He most happily, at age 35, would play with children of three or four, doing whatever they asked him to do.

6. Bluffing Greater Competence than One Possesses. So many mentally disabled persons will want to "try hard" to "play along" with their interrogators. They want to "pass" as normal, and the interview gives them a chance to do this.

7. An All-Too-Pleasant Facade. People with mental disabilities often smile a lot, though their smiles are at inappropriate times and for inappropriate reasons. They see others smile, and they are anxious for approval and realize that they should try to be approved. Thus, they smile. Often this communicates a lack of remorse to a jury.

8. Abhorrence for the Term Mental Retardation. That is why I don't use that term here, though Perske said that when he wrote his book (1991), law regularly used that word. Such a term strikes a mentally impaired person with a singularly devastating force.

9. Real Memory Gaps. Many defendants have a "selective" memory when it comes to telling what happened, especially if it will not inure to their benefit. But mentally disabled people often cannot remember things clearly.

10. A Quickness to Take Blame. Thus, such a person might quickly accept responsibility for an action or crime he didn't commit, simply because he believes that since someone should be implicated in the crime, it should be him.

11. Impaired Judgment. Not only do they often laugh at inappropriate times, they can use words inappropriately. Perske gives the example of someone referring to women as "chicks" and walking as "boogying" because he had heard these activities/persons so described by others. He didn't know it was inappropriate to use these words before a jury.

12. An Inability to Understand Rights, Court Proceedings, or the Punishment. Perske gives examples of defendants whose inappropriate behavior or words showed that they didn't know what was going on in the courtroom.

13. Problems with Receptive and Expressive Language. A person with mental impairment may "freeze" when an authority figure demands information from him. This can lead to the officer's thinking the person is hiding something or being obstreperous.

14. Short Attention Span and Uncontrolled Impulses. This relates to 12 above.

15. An Unsteady Gait and Struggling Speech. You have seen the way that impaired people walk and try to speak.

16. Exhaustion and Surrender of All Defenses. As any parent of a mentally impaired person will tell you, living with that person is exhausting. It is also that way for the impaired person. Thus, the person may (probably will) not be at his best when confronted with stressful situations.

Conclusion

This provides an insight into Perske's careful, clear and thorough approach to his craft. So excited was he by the happenings at the first day of the conference, that he said he simply had to stay around for the second day. Not too many 79 year-olds would do that...

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