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Virginia Bans Mental Health Evidence in Trials. Lawmakers Could Soon Change This

Proposed legislation would allow people accused of crimes to tell juries if they had a mental illness, autism spectrum disorder, or an intellectual or developmental disability at the time of a crime. The bill could have helped individuals like Matthew Rushin.

Matthew Rushin
Photo illustration by Kat Wawrykow

Virginia Bans Mental Health Evidence in Trials. Lawmakers Could Soon Change This

Proposed legislation would allow people accused of crimes to tell juries if they had a mental illness, autism spectrum disorder, or an intellectual or developmental disability at the time of a crime. The bill could have helped individuals like Matthew Rushin.


On Jan. 4, 2019, Matthew Rushin, then a 19-year-old college student, drove to a Panera Bread in Virginia Beach, Virginia. In the parking lot, his car and another clipped each other, according to the Washington Post. Panicked and overwhelmed, he initially drove away, he told the police, but after doing breathing exercises he headed back to the accident. 

On his way, Rushin lost consciousness, likely from a seizure, according to his mother, Lavern Rushin. He drove into oncoming traffic and crashed into two cars. When Rushin regained consciousness and exited his car, two men restrained him. Another man said he yelled at Rushin something like, “What the ‘f’ are you doing? You could have killed somebody.” 

Rushin’s statements at the scene have been a point of controversy. Rushin, the man later testified, replied something to the effect of, “I wish I were dead. I should be dead.” At the time, Rushin, he said, was “a little in hysterics.” The man’s wife reported hearing someone crying, saying, “I want to die. I want to die.” Prosecutors claimed five officers heard Rushin say he was trying to kill himself.

Prosecutors argued that Rushin, who was never taken to the hospital, intentionally caused the crash in a failed suicide attempt—an accusation Rushin denies—and charged him with second-degree attempted murder. Four people were injured, one of whom suffered a severe brain injury. Facing decades in prison, he pleaded guilty to malicious wounding and hit-and-run. He was sentenced to 50 years in prison with 40 years suspended. 

Lavern Rushin has launched a national campaign to fight what she believes is her son’s wrongful conviction. When he said he wanted to die, Lavern said, he was exhibiting echolalia—the repetition of a phrase said to him—which is common among autistic people. Rushin was diagnosed with autism spectrum disorder, along with attention deficit hyperactivity disorder, when he was a child. In a video of his interrogation, Rushin can be seen alone pacing, barefoot, and talking to himself. “You’re telling me that I want to kill myself?” he said. “Someone said ‘kill’ twice.”

On Friday, Lavern testified before a House of Delegates subcommittee in support of Senate Bill 1315. The bill, introduced by Senator Jennifer McClellan, permits people accused of crimes to submit evidence at trial of a mental illness, autism spectrum disorder, or intellectual or developmental disability to show their mental state at the time of a crime. 

“This bill would have actually helped Matthew because his developmental disability and mental health disability would have been part of his defense,” Lavern told The Appeal. “I believe this bill would have been a significant turnaround for Matthew.”

People accused of crimes in Virginia are prohibited from submitting this type of evidence during trial because of a 1985 Virginia Supreme Court decision that ruled a person’s mental state was irrelevant unless a plea of not guilty by reason of insanity is entered. 

“If you’ve got somebody that has an underlying condition that means they could not have possibly had the intent they would need to commit a crime, a jury and a judge should know that,” McClellan, who is also running for governor this year, told The Appeal. 

But after passing the Senate this month, the bill has faced resistance in the House of Delegates, primarily from Republicans. The opposition prompted the removal of mental illness. Members of both chambers will now reconcile the differing versions, and then bring it back for a floor vote, possibly this week, according to the bill’s supporters.

About 37 percent of prisoners nationally have been diagnosed with a mental illness, according to the 2011-12 National Inmate Survey published by the Bureau of Justice Statistics.  

Brian Kelmar, a co-founder of Legal Reform for the Intellectually & Developmentally Disabled, also testified in support of McClellan’s legislation. In 2010, his autistic son, then 19, was accused of a sexual offense. Kelmar asked The Appeal not to publish his son’s name to protect his privacy.

Like many parents in his situation, he said he assumed the authorities would understand that his son “didn’t have a clue what was going on or understand the situation.” But he learned that if they went to trial, evidence of his son’s diagnosis would not be considered. 

“Some people don’t perceive the world the same way that others do,” said Brad Haywood, the executive director of Justice Forward Virginia, an advocacy organization that supports SB 1315. “To not allow them to explain how their brain works when you’re talking about something that is fundamentally all about mental state is just really unfair.”

Like Rushin, Kelmar’s son was facing prison time. In 2011, instead of going to trial where he wouldn’t be able to present information about his diagnosis, his son pleaded no contest and received five years’ probation and a 10-year suspended sentence. As part of his plea deal, he has to register as a sex offender. His photo and home address are publicly accessible on the Virginia Sex Offender and Crimes Against Minors Registry. He hasn’t been able to find employment or a home to rent, said Kelmar. 

“Had we not had the means,” he said, “he would be in the street.”

About three years ago, Kelmar submitted a clemency petition to the governor’s office but a decision has not yet been made, said Kelmar, and the office did not respond to The Appeal’s request for comment.

In Rushin’s case, Governor Ralph Northam granted him a conditional pardon in November, but he is not scheduled to be released until March. Last month, he was diagnosed with COVID-19, which he is recovering from, his mother said. 

Lavern last saw her son in person on Dec. 6, 2019, in the Virginia Beach Circuit Court. That day, officers told her and other family members that if anyone spoke to Rushin, they would be held in contempt. 

“I was literally an arm’s length away from him,” said Lavern. “I couldn’t even whisper, ‘I love you.’”

Update: A quote from Lavern Rushin about Matthew Rushin’s conditions has been updated.