Miami-Dade County

‘Competency’ contested for autistic Miami man facing child-porn charges

Alberto ‘Tony’ Rodriguez
Alberto ‘Tony’ Rodriguez Family photo

The legal competency of an autistic Miami man with an IQ of 73 is still very much up in the air more than one year after his arrest on charges of downloading child pornography.

A federal judge has thrown out a magistrate’s decision that the competency of Alberto “Tony” Rodriguez — who had initially been deemed incompetent by a court-appointed Miami psychologist — was restored after he completed a legal course and testing by a psychologist with the U.S. Bureau of Prisons.

But U.S. District Judge Ursula Ungaro found the prison psychologist’s expertise in evaluating defendants with autism “quite limited” and ordered that a “neutral expert” with this specialty analyze Rodriguez, 24, in the coming year.

Expressing her frustration at a hearing Dec. 14, Ungaro declared: “I think that we have not advanced an inch and we need to move the ball ahead.”

The judge ordered Rodriguez’s defense team and the U.S. attorney’s office to recommend three psychological experts by Jan. 8. She will appoint one of them to evaluate the defendant — with the Justice Department footing the bill — starting the competency process all over again.

Ungaro overruled her colleague, Magistrate Judge Alicia Otazo-Reyes. In November, she found that Rodriguez’s competency was restored to stand trial after undergoing a psychological evaluation at a North Carolina federal prison to gauge his ability to assist in his own defense.

In her ruling, Otazo-Reyes found the “standard does not require that a defendant be able to assist in preparing the defense, but be able to consult with his lawyer and assist in his defense. ... Thus, notwithstanding Rodriguez’s established diagnosis of high-functioning autism spectrum disorder and borderline intellectual function, [I conclude] that he meets the legal standard of competency to stand trial.”

Rodriguez’s defense attorney, Joel Hirschhorn, challenged the prison psychologist’s conclusion with the testimony of two South Florida psychologists who found that his client is a high-functioning autistic, emotionally immature and incapable of reasoning.

Rodriguez’s defense team, which is working pro bono on his case, appealed the magistrate’s decision to the district court judge, Ungaro.

Rodriguez, who was granted a $50,000 bond and is living with his parents, faces up to 20 years in prison on Internet-related child-porn charges.

In the digital age, federal prosecutions of defendants accused of downloading, possessing and sharing Internet images of minors having sex with adults are common across the country. But Rodriguez’s case is highly unusual because of his unique personal profile.

For starters, Rodriguez surrendered to authorities last December after the federal raid at his parents’ home in September 2014. Because of his mental deficiencies, he was granted bail in January under the supervision of his mother with strict conditions, including no access to the Internet.

In March, Otazo-Reyes ruled Rodriguez was “incompetent,” based on a court-appointed evaluation by Miami psychologist Bruce Frumkin. But as the U.S. attorney’s office pressed forward with a six-count indictment, Rodriguez had to undergo psychological evaluations while incarcerated at a federal prison for four months to determine whether his competency could be “restored” for trial.

Rodriguez was placed in the custody of North Carolina federal prison officials from April to July to take classes on basic legal concepts, assisting in his own defense and trial procedures as part of his psychological tests.

The outcome: “He achieved a score that is consistent with someone with no mental retardation and competency to stand trial,” Carlton Pyant, a prison psychologist, testified at a Miami federal court hearing in October. “He answered the questions correctly, consistently and precisely.”

But Ungaro called into question the prison psychologist’s expertise with autistic defendants.

“The doctor’s experience in dealing with autistic individuals seemed to be quite, quite limited to me,” Ungaro said at another hearing this month. “He was only able to give an example of somebody who obviously was extremely impaired — someone who uncontrollably banged their head against the wall. ... [He] wasn’t really able to articulate a sufficient experience with a range of people with autistic conditions.”

“So what he had to say about competency restoration was very unpersuasive to me, both with respect to what it consists of and why it would have been effective with this particular individual.”

Ungaro said that for her to find Rodriguez competent to stand trial, he must understand the charges against him, must be able to convey the facts of the case to his lawyer, and must have the ability to decide whether to testify, go to trial or enter a plea agreement.

The judge noted, for example, that when Rodriguez was asked at the hearing in October what he did wrong, he responded: “Underage porn.” But when asked the same question at another point in the hearing, he said: “I don’t know.”

“So the responses in the [court] reports are inconsistent as to whether or not he knows what the charges are against him.”