A janitor Dunedin found guilty of beating his boss to death with a hammer wants his conviction annulled because his autism was not raised at trial.
Alexander James William Merritt (23) was sentenced to life imprisonment for the murder of 51-year-old Karin Ann Ross and Judge Nicholas Davidson imposed a minimum period of 12 years non-parole. He called it a "sudden, violent and insensitive" attack that occurred in the Spotless Cleaning Services parking lot on December 2, 2015.
It was revealed in the verdict that Merritt had Autism Spectrum Disorder (ASD) – an issue that was discovered before the trial, but was not raised with the jury that found him guilty.
Attorney Tony Ellis told the Court of Appeals this week that there had been a judicial error as a result.
The DSA questioned whether Merritt could have formed the "mens rea" (intent or knowledge of transgression) needed to be found guilty of the crime, he suggested.
While Ellis had no psychiatric report to confirm this, he provided references to numerous experts and legal authorities abroad about the disorder.
Counselor Anne Stevens, who represented Merritt at the trial, said she was not instructed to seek an autism-based defense by her client.
"Mr. Merritt's instructions were to defend the prosecution on the basis of insufficient evidence that he killed her," she wrote in a statement.
Stevens added that she had no worries about her intellectual ability.
"Alexander Merritt may seem indifferent and uninvolved, while I quickly discovered he was a deep thinker," she said.
Ross's father, Maurice Boyles, told the Otago Daily Times he was aware of the appeal but declined to use his details.
"It's a saga in progress," he said.
"It's bad because it keeps coming back all the time. I just want to finish and end," Boyles said.
Merritt was criticized by Justice Davidson for his "extraordinarily cold indifference" that arose in his behavior after Ross's death, particularly in an interview with police.
The defendant told Detective Graeme Smaill that he did not care about the woman's death and admitted that he had made several violent threats on her back.
"This no doubt goes to the rather obvious thought of the judge that Merritt maliciously killed the deceased – no doubt the jury also considered that he also had psychopathic traits, no explanation for autism was given to his behavior," said Ellis.
Out of the context of the ASD, he said, Merritt looked soulless and cold.
If there was information about his disorder at the beginning of the trial, instead of a sentence, "a guilty homicide verdict may have been possible," he told the court.
The appeal coincided with the inauguration of a new online resource for the legal community that provides assistance to vulnerable witnesses and accused.
"Benchmark" – a project centered at the Donald Beasley Institute in Dunedin – consulted people with intellectual disabilities and 40 judges about their experiences with the court.
Kate Diesfeld, a staff member and health law self-taught, said some of the interviewees' stories were "distressing."
"People with ASD are particularly vulnerable in my estimation. Their response in this [court] configuration can be seen as cold, indifferent, [and] lack of remorse, but this is not necessarily a precise portrayal of the emotions they experience, "she said.
So if one's disorder were disregarded through the judicial process, could this lead to unfair trials and unsafe verdicts?
"Maybe," said Professor Diesfeld.
The appeal court's decision is expected next month.
If the appeal failed, Ellis said an appeal against the length of Merritt's sentence would be likely.
The Merritt family declined to comment.