If you read Brandon Fleury a story when he was three, he’d recite it back to you word for word. His father Patrick, then a professional tennis coach, was both bemused and impressed by his physically awkward son. He would tell people about Brandon’s capacity for mimicry – eventually he found himself explaining it to a jury.
Brandon had a tough childhood. One night when he was five and lying in bed with his mother, she had a pulmonary embolism and died. Fleury became a full-time single dad to Brandon and his younger brother. Brandon had always needed extra attention, but after his wife died Fleury began to pick up on more unusual elements of his son’s behaviour. A girl from the neighbourhood would pull him around in a wagon “like he was a puppy”; Brandon seemed uneasy with it yet unable to articulate his discomfort. At their home in Santa Ana, California, he would repeat phrases and questions over and over again, or open and shut doors repeatedly. Sometimes he would flush the toilet 30 times in a row, giggling.
Doctors diagnosed Brandon with attention-deficit disorder, then attention-deficit-hyperactivity disorder. When he was seven, they added obsessive-compulsive disorder and Asperger’s syndrome to the list (Asperger’s is now classed as a form of autism).
Fleury tried to help Brandon regulate his behaviour but nothing the doctors suggested – therapy, medication, a teaching assistant – seemed to make a difference. He taught his son at home for a while, then sent him to high school, which turned out to be a disaster. Desperate to be accepted, Brandon became the plaything of a group of bullies he believed were his friends. They took his money and beat him up. “They would mess with him in every imaginable way; they’d make a fool of him,” Fleury says. “He didn’t know any better.” Brandon dropped out before his final year.
After that, the family seemed to find a rhythm. Brandon came across as several years younger than he was and would often lose himself in repetitive rituals, such as washing his hands. But he was self-reliant enough to walk to town and back, and cook himself meals in a microwave. At night, Fleury set the burglar alarm with a motion detector so that he’d know if his son started to wander off; Brandon seemed to like staying in his bedroom and didn’t mind being monitored.
“Please don’t hurt him,” Fleury shouted as his son was led away. “He’s got problems”
Brandon spent most of his days sitting on the couch at home, listening to music and surfing the internet. Fleury didn’t really know what his son was doing online but Brandon seemed to enjoy the escape from socialising in person and his father was happy for him to have that. Brandon never said thank you or hello, never told anyone that he loved them, but he appeared content. “Non-stop smiles,” Fleury recalls.
One morning in 2019, when Brandon was 21, Fleury woke up to flashing lights outside and loud banging on the front door. He ran to open it: FBI agents were on the other side. They immediately put him in handcuffs. Brandon wouldn’t come out of his room, so the FBI set off an explosive device and eventually extracted him. “Please don’t hurt him!” Fleury remembers shouting as they led him away. “He doesn’t understand.”
The FBI had been led to Brandon’s door by a trail of disturbing social-media messages. Brandon had created several Instagram accounts under different aliases. Most of these account names (“nikolas.the.murderer”) seemed to refer to Nikolas Cruz, a teenager who had shot dead 17 students and staff-members at a high school in Parkland, Florida, in early 2018. Later that year Brandon used these accounts to unleash a torrent of abuse at some of the friends and family members of those Cruz had murdered. “I killed your sister,” he wrote to the brother of one victim. “It was fun. She had her whole life ahead of her and I fucking stole it from her.” To Max Schachter, whose son Alex was killed, he wrote: “Little Alex Schachter will never play music again.” The messages poured out, sometimes several in a minute: “I killed your loved ones haha.” “Your grief is my joy.” “I gave them no mercy.” “I’m kidnapping you fool.”
Fleury had no knowledge of any of this when he opened the door to the FBI. He was shocked, nauseous, but assumed that whatever the problem was would be cleared up quickly. He knew Brandon would answer questions truthfully. He didn’t even contact a lawyer.
Autism-spectrum disorder, the clinical term for autism, is a complex brain condition affecting how people understand the world and interact with it. It can be detected from toddlerhood: one in 44 American eight-year-olds have a diagnosis, which means that in theory you’d find at least one autistic child in every two school classes.
Researchers still can’t say exactly what autism is. There’s no biological test or scan for it. It is not a purely genetic disorder like fragile-X syndrome. The diagnostic criteria are broad and vague, clustering around difficulties in social communication and interaction and repetitive behaviours. Behind these generalities lie a range of complex symptoms that vary significantly from person to person. Some conflict with each other – lack of fear and excessive fear, for instance, are both associated with the condition. So is depression. Other potential signs include an inability to understand others’ emotions and trouble interpreting facial expressions. Some autistic people lead fully independent, professionally successful lives; others never learn to talk.
Autism wasn’t identified as a specific disorder until 1943. Even after that, children diagnosed with the condition tended to be shunted away into institutions rather than helped to live in the community. They were seen as a burden. In “Far from the Tree”, a book on how parents raise children who differ from the norm, Andrew Solomon cites a number of cases from as recently as the early 2000s in which parents who killed their autistic children were given light sentences or no prison time at all. “The habit of the courts”, Solomon writes, “has been to treat filicide as an understandable, if unfortunate, result of the strains of raising an autistic child.”
In recent years autism has lost some of its stigma, and is more frequently spotted and treated. The prevalence of diagnosed autism among American children has more than trebled since 2000, according to estimates from the Centres for Disease Control (in part because a wider range of disorders are now included in the definition). Many affected children still take years to be diagnosed, especially girls, but awareness of the condition has come a long way.
Increasingly, people who are at the high-functioning end of the autism spectrum demand that society accepts and embraces the ways in which they are differently wired. Rather than expect autistic people to endure the hubbub of office noise, autism campaigners say that employers should offer them greater privacy or headphones. The word “neurodiversity” has entered the lexicon, which refers in a literal sense to the range of ways in which people’s brains work, but which has also become a rallying cry for those who want society to be more inclusive of the outliers on this spectrum. Some companies, especially in Silicon Valley, have begun to actively recruit autistic people to improve their workplace neurodiversity. This may be virtue-signalling in some cases, but firms also recognise that autistic people often have exceptional skills and an unusual perspective that can benefit an organisation.
As Brandon’s family discovered, however, one institution that has struggled to embrace neurodiversity is the criminal-justice system. Neither Britain nor America routinely measures the rate of autism in prisons, but the limited evidence available suggests that it is slightly higher than among the general population. A small study of nearly 500 male prisoners in America in 2012 estimated that 4.4% of them met the criteria for a diagnosis of autism-spectrum disorder, compared with 3.6% in the wider male population. An even smaller survey of male prisoners in Scotland in 2018 found that 9% exhibited autistic traits.
A psychiatrist asked if the messages were meant to cause anguish? “What’s anguish? It’s not something I know what it is”
There is no evidence of a “criminal” tendency associated with autism – if anything, autistic people tend to be scrupulous about following rules. But a condition that makes it hard to read social cues puts people at risk of committing (or being accused of committing) some specific crimes, and makes it harder for them to navigate interactions with police and prosecutors when that happens. Some autism experts say they’re seeing a growing number of people with the condition caught up in online crimes (both as victims and accused). The social norms of the internet are hard to parse, even for those who are neurotypical.
The problem with trying to make the system fairer, says Elizabeth Nevins-Saunders, an expert in mental health and criminal law, is that autistic people “don’t always fit neatly into the categories that the law wants people to fit into”. Little about autism is clear-cut.
The concept of criminal justice rests on the fundamental principle that we are responsible for our own behaviour. Any exceptions to this are narrowly defined. In England and Wales, as well as in most American states, the threshold for a successful defence based on a defendant’s mental state – the insanity defence – is still largely shaped by a 19th-century English murder trial in which a judge told the jury that the defendant could be acquitted if he suffered from “a defect of reason”. That is not helpful to autistic defendants, who typically don’t lack basic intellectual capacity.
Even if a defence lawyer did convince a jury that their autistic client met this criterion, the outcome wouldn’t necessarily be desirable. Darius McCollum, an autistic man who was fascinated by New York City’s transit systems, was arrested on multiple occasions over a 30-year period for impersonating transit staff and driving their bus or subway routes (and doing the job fairly well, as it happened). In 2015 he was charged with stealing a Greyhound bus. The judge accepted his plea of not guilty by reason of insanity, based on his autism, but sent him indefinitely to a mental institution.
A diagnosis of autism may affect questions about criminal intent (mens rea, in legal jargon). If a lawyer can show that the defendant didn’t appreciate the consequences of what they were doing, it can contribute to an acquittal. This was a central issue in Brandon’s case. The charges he faced – cyber-stalking, with threats to injure or kidnap people – required proof that the messages he sent caused, attempted to cause or “would reasonably be expected to cause” a rational fear of death or injury as well as “substantial emotional distress”. Is this what Brandon intended when he sent the messages?
When Fleury first heard about the messages, he couldn’t square them with the “happy-go-lucky” son he knew. It made a bit more sense when he heard Brandon’s account of what happened – his son admitted to almost everything straight away. Brandon told a federal investigator that he’d been inspired by an internet troll who went by the name of Lynn Ann. “Lynn Ann” was obsessed with one of the Columbine High School shooters, and achieved a small amount of fame online by posting messages on social media about how “ugly” the shooter’s victims had been. Brandon’s messages to the Parkland victims’ families had been “pure bullshit trolling” like Lynn Ann’s, he told the investigator. Brandon said he had become interested in internet trolls because they were “popular”.
Fleury knew how much his son yearned to be popular, or at least socially accepted. He also knew about his tendency to repeat phrases from something he was immersed in. After seeing “Daredevil”, a superhero movie, he kept saying, “hey orphan, let’s play!”, a taunt used by one of the characters. It was the same with “Shark Tale”. It made sense to Fleury that Brandon would mimic the language and behaviour of internet trolls without really understanding them. An expert on autism hired by the defence gave a similar assessment to the court.
The prosecution pointed out that Brandon’s messages didn’t simply copy Lynn Ann’s phrases, but were crafted with specific information about the victims and made ongoing threats. Brandon maintained that he didn’t intend to hurt or scare people but to “annoy” them. When a psychiatrist hired by the prosecution asked if he was trying to cause the victims anguish, Brandon responded, “What’s anguish? It’s not something I know what it is.”
The law leaves plenty of scope for a jury to ignore a defendant’s understanding of their actions, and Brandon’s lawyers ultimately failed to convince them that his case should hinge on this. The trial took place just down the road from hearings about Nikolas Cruz, the Parkland shooter, and the trauma of the killings that Brandon’s messages celebrated was still fresh. Even the judge in Brandon’s case suggested that his cyber-stalking trial was an opportunity for the Parkland families to find “closure”.
Prosecutors painted Brandon as someone who might well have gone on to commit mass murder himself if he hadn’t been caught. They went over his messages in detail to demonstrate the distress he had caused. They brought people like Fred Guttenberg to the stand, a man whose daughter had been killed at Parkland and whose son had received messages from Brandon. Guttenberg spoke about the terror his family felt.
“Have you also contemplated that it could have been a punk teenager who just wanted to annoy you?” a defence lawyer asked.
“My ability to contemplate a punk teenager utilising social media in this way and not acting on it ended on February 14th,” Guttenberg said.
The judge gave short shrift to the idea that Brandon “didn’t understand” and sentenced him to five and a half years behind bars
Prosecutors emphasised Brandon’s apparent sexual interest in mass murderers, perhaps to make Brandon appear dangerous by association. He had told the FBI that he had fantasies about Cruz, the Parkland shooter. One of his Instagram aliases referred to Ted Bundy, a notorious serial killer from the 1970s. One prosecutor used the term “serial killer” six times in his closing argument, and “Ted Bundy” 12 times.
The jury found Brandon guilty on all counts.
For autistic people, prison is a special kind of punishment. Bright lights, noise and the relentless presence of other people are overwhelming for many of them. Because they are often eager to be accepted and have difficulties with unspoken rules and codes, they are especially vulnerable to being bullied and taken advantage of.
A defendant’s autism is most likely to be brought up at sentencing. In America, judges aren’t obliged to offer a more lenient punishment to autistic people, but can use their own discretion to do so. In October a man who’d taken part in the January 6th Capitol riot was put on probation, rather than being sent to prison: the federal judge said that his autism significantly affected “the blameworthiness of your conduct”.
Not all judges understand autism well. In 2016 Colleen Berryessa, a criminology professor, asked 21 judges to assess a fictional case in which the defendant had autism. Nine said that knowing about the condition made them more sympathetic to the defendant. Three saw it the other way: the defendant’s autism meant that he probably couldn’t control himself, increasing his danger to the public.
Many autistic people are themselves wary of the condition being used to defend a crime, because they fear that such arguments fuel the misconception that autism makes people dangerous. Dylann Roof, who killed nine black church-goers in Charleston, South Carolina, in 2015, invoked his autism when appealing against his death sentence last year: when he did so, two autism-campaign groups filed a brief opposing Roof’s claim. “Associating autism with violence harms our community,” they wrote.
When the sentencing hearing for Brandon began, Fleury brought in a new lawyer, Sabrina Puglisi, to replace his public defender. She argued that Brandon was a fundamentally law-abiding person, pointing out that when the court ordered him not to use social media as a condition of bail he took it so seriously he wouldn’t even touch a computer. She called Lynda Geller, a clinical psychologist and expert on autism, to assess Brandon’s suitability for going into a rehabilitation programme rather than prison. Geller recommended rehab. She, too, believed he was a compliant person who lacked the skills to interpret how he saw people behaving online.
A sincere statement of remorse from a defendant can sway a judge to give a lighter sentence, yet autistic people are at a disadvantage in this regard, too, as they often struggle to communicate emotions. Puglisi assured the judge that Brandon had expressed remorse after hearing the testimony of his victims. But when she played a video for the judge of him apologising to them, even Puglisi admitted that it was a little “flat”.
Set against this was the passion of Guttenberg, the Parkland father who had testified at Brandon’s trial. He also spoke at the sentencing. “It’s not because of autism disorder that he did what he did to my family and the other families,” said Guttenberg. “It’s because of sociopathic behaviour.”
The judge, Rodolfo Ruiz, gave short shrift to the idea that Brandon “didn’t understand”. He sentenced him to five and a half years behind bars, well below the maximum 20 but more than the median federal sentence for manslaughter or drug-trafficking.
A few weeks before Brandon was sentenced, another federal case involving an autistic defendant was wrapping up in Chicago. This too had begun with a raid by the FBI: agents were after a man they thought was behind a huge market-manipulation scheme that briefly wiped about $1trn off American stockmarkets in 2010. What they found in the London suburb of Hounslow was a hoodie-wearing video-game addict who lived with his parents, had a bedroom full of stuffed animals and paid for his meals at McDonald’s with coupons. When Navinder Sarao was extradited to America, on the plane journey he excitedly questioned the FBI agent accompanying him about his cool job.
The charges against Sarao were serious: he was accused of a giant fraud. There was no lack of evidence – he had even recorded some of his own trading activity, providing an ample record for prosecutors. Yet his story had a drastically different outcome to Brandon’s.
Roger Burlingame, Sarao’s lawyer, said it was obvious on their first meeting in jail that Sarao was “different”. “Clients all want to know the same thing: what’s going to happen? How will you fix this?” he recalled. Prosecutors were talking about a 200-year prison sentence and Sarao was asking his lawyer “things like what New York is like and how many hours a week I work”. Burlingame called in Simon Baron-Cohen, one of Britain’s foremost psychologists, who assessed Sarao and spoke to those closest to him.
To Sarao’s family he was just Nav, a quirky, solitary maths whiz who had aced his degree. So what if he played video games for so long that he became one of the highest scorers on FIFA Football, or forgot to take off his bike helmet before he sat down at his desk to work? They’d never thought that might be part of a medical condition.
When Sarao was extradited, on the plane journey he excitedly questioned the FBI agent accompanying him about his cool job
It was clear to Baron-Cohen, however, that Sarao’s behaviour went beyond quirkiness. He was sensitive to light to the point that he hung blankets over his bedroom window. He still loved his stuffed-toy tiger. He could be astonishingly blunt, telling his sister-in-law that her baby looked like a Garbage Pail Kid then pulling out his collection of Garbage Pail Kid cards to reinforce the point. Baron-Cohen diagnosed Sarao with autism, and said this was central to understanding his actions.
Sarao had an unusual eye for numbers and patterns. When he started the scheme that led to his arrest he was working in one of London’s trading arcades – shared facilities used by self-employed traders for a fee. As competitive about stocks as he was about video games, Sarao became obsessed with the markets; sometimes he’d work for two days straight without sleep.
As he traded, Sarao became increasingly frustrated by high-speed algorithms, tools that could crunch data and execute trades in milliseconds. Sometimes these algorithms seemed aimed purely at moving the value of a stock or commodity up or down so that someone could profit from advance knowledge of the movement. One way algorithms can move prices is through a dubious practice known as “spoofing”: placing lots of orders to mimic a surge in buying or selling, and then cancelling them at the last minute. In 2009 Sarao began complaining about spoofing to officials at the Chicago Mercantile Exchange, on which he did most of his trades. Staff there weren’t interested in his allegations of fraud, and eventually started to hang up on him when he called.
Sarao decided to commission someone to write a computer program that could beat the spoofing algorithms at their own game. It was a wild success: between 2009 and 2014 he made $70m. He didn’t seem to know what to do with the money – he rarely spent any of it, apart from losing tens of millions to unsophisticated fraud schemes. And he lacked the finesse of other traders operating at the boundaries of legality. When someone from the Chicago Mercantile Exchange contacted him in 2010 and warned him against placing bogus orders, he told them: “Kiss my ass.”
Finance experts remain divided on whether Sarao caused the “flash crash” of May 2010, which saw the Dow Jones index lose almost 9% of its value. Sarao had been extraordinarily active that day, making almost $900,000. But though the indictment accused him of contributing to the crash, a federal judge later said that she didn’t hold him responsible.
Sarao was defended by some of the most sought-after lawyers in the business. Burlingame was an expert in white-collar crime and convinced that if prosecutors could get to know his client, they would see him as someone who was confused about rules and boundaries rather than a greedy fraudster. He secured an agreement in which Sarao would help prosecutors with their inquiries in exchange for the possibility of a reduced sentence. Federal lawyers and agents came to spend a lot of time with Sarao as a result.
By the time Sarao was sentenced in 2020, he’d met prosecutors ten times to explain spoofing and served as a witness in another case involving it. Prosecutors had noticed Sarao’s inability to maintain eye contact and his tendency to “obsess” over certain issues. They’d also benefited from his extraordinarily detailed presentations on spoofing. In a highly unusual move, they requested that the judge give him no prison time.
Sarao was lucky. The judge in the case, Virginia Kendall, said she was “very, very familiar with autism”, and referred to it when she sentenced him: “Someone with Asperger’s or autism does not have the same judgment level that someone who has the mens rea to manipulate would.” Noting how hard autistic people find living in prison, she sentenced Sarao to one year of home confinement.
The lenient sentence aroused no public outcry. Many commentators felt that Sarao had exposed an unacknowledged truth about the financial system: it treats rules as a game to be worked around. There was something refreshing about the guilelessness with which he did what others were trying to do with greater cunning. “He’s not some kind of exception to the standard operating procedure in finance,” wrote Michael Lewis, author of several books on Wall Street culture. “He’s a parody of it.”
At the moment it’s pure luck whether or not an autistic person is tried and sentenced by people who understand the condition. Revising the concept of legal responsibility to accommodate autistic people is a philosophically daunting task, but educating officials about their condition is an immediate practical step that could help create fairer outcomes.
Advocacy groups say that both judges and juries should undergo mandatory training so that they can understand, for example, that an autistic person may not show emotion, which can have a real bearing on the course of a trial. “Sometimes…our tone of voice might not seem to be empathetic or remorseful enough,” says Haley Moss, a lawyer based in Florida who is autistic. “The system we have definitely is not very understanding.”
For autistic people, the bright lights, noise and relentless presence of other people in prison are often overwhelming
Campaign groups also suggest that autistic defendants should be given help communicating in court, via computer programs that convert typed text to speech, for example. Courts could also insist that a supporter is present at proceedings, to flag when they think an autistic person isn’t understanding something.
The prison system could be more accommodating, too. A recent report commissioned by Robert Buckland, then head of Britain’s ministry of justice (who happens to have an autistic daughter), recommended instituting proper screening in courts and jails so that autism and other conditions are reliably picked up. He also suggested prison officials should be trained to better respond to these inmates’ needs.
Until these kinds of reforms are instituted, autistic people accused of crimes face a cruel lottery. Since his sentencing, Sarao has faded back into happy isolation, returning to a quiet life with his parents in Hounslow. Barred from trading, he spends much of his time gaming and playing with his nephews.
Brandon Fleury is in prison in Connecticut, thousands of miles from his family. He’s small, around 120 pounds (54kg), and wears braces. He has been assaulted in jail, both verbally and physically. He has been conned out of money and sent to fetch other inmates’ food or clean up their mess. His lawyer, Ashley Litwin, filed an appeal last year, based in large part on how Brandon’s autism informed his intent. The appeal was denied.
His father says Brandon is a changed person. When Fleury suggests doing push-ups so he can defend himself better, or pursuing a high-school diploma to make something productive from these years, Brandon gives little response. “He’s regressed in that respect. He just doesn’t understand why he’s still in prison,” Fleury says.
Brandon recently started writing letters to the prison warden and to Judge Ruiz, asking to be let out. “Brandon, that’s just not going to work,” Fleury tells him. But he has to keep explaining it. These days they have the same conversations, over and over, round and round, and get nowhere: Brandon just doesn’t understand. ■
Stephanie Clifford is a journalist and novelist in New York. Her new novel, “The Farewell Tour”, is out in March 2023
ILLUSTRATIONS:MARK SMITH
from Hacker News https://ift.tt/35OQlHm
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.