550
1 UNITED STATES DISTRICT COURT
2 FOR THE WESTERN DISTRICT OF NORTH CAROLINA
3 CHARLOTTE DIVISION
4
5
UNITED STATES OF AMERICA )
6 )
)
7 vs. ) File No. 3:97CR23-P
) SENTENCING PHASE
8 AQUILIA MARCIVICCI BARNETTE, )
)
9 Defendant. )
)
10
11
12 Transcript of proceedings before the Honorable
13 ROBERT D. POTTER, Senior United States District Court Judge,
14 before Scott A. Huseby, Official Court Reporter and Notary
15 Public, on the 3rd day of February, 1998.
16 APPEARANCES:
17 For the United States:
18 ROBERT J. CONRAD, JR.
THOMAS G. WALKER
19 Assistant United States Attorneys
227 West Trade Street, Suite 1700
20 Charlotte, North Carolina 28204
21 On Behalf of the Defendant:
22 GEORGE V. LAUGHRUN, Esq.
Suite 602
23 301 South McDowell Street
Charlotte, North Carolina 28204
24
25
551
1 APPEARANCES: (Continued)
2 PAUL J. WILLIAMS, Esq.
Suite 801
3 301 South McDowell Street
Charlotte, North Carolina 28204
4
5 ---
6
7 THE COURT: I understand the defendant had something
8 they want to put on the record.
9 MR. LAUGHRUN: Judge, yesterday afternoon, I know we
10 talked about the expert situation, there was an objection made
11 by Mr. Conrad to Sheila Cooper's testimony about her -- had seen
12 a therapist or what effect that your mom's death had on you. We
13 had a bench conference, and Mr. Williams, correct me if I'm
14 wrong, you sustained that objection.
15 I think, Judge, for the record, we would like to put a
16 proffer on what she would have said.
17 THE COURT: All right, sir, let's do that next recess.
18 I'm not going to hold the jury up while we're doing that.
19 MR. LAUGHRUN: Okay.
20 THE COURT: While I'm thinking about it, the
21 government's side --
22 MR. WILLIAMS: Your Honor, I'm sorry to interrupt Your
23 Honor, but my client wanted to talk to us before we started
24 today. We just were informed of that.
25 THE COURT: Can't you do that earlier, Mr. Williams?
552
1 You know what time this jury is going to be here. They come a
2 long ways to be here on time.
3 MR. WILLIAMS: I understand.
4 THE COURT: Now, how long are you going to talk to him?
5 MR. WILLIAMS: He just asked me, I didn't --
6 THE COURT: Well, go ahead and let's get it over with.
7 (Attorney/client discussion.)
8 THE COURT: Pages 7 and 8 of your instructions, the
9 government's instructions, Page 8 is missing, Page 7 is sort of
10 halfway.
11 MR. WALKER: Okay, Your Honor, I will remedy that
12 situation.
13 THE COURT: I just wanted to make sure y'all had that
14 for us.
15 MR. WILLIAMS: Thank you, Your Honor, we are ready to
16 proceed.
17 THE COURT: Call the jury.
18 (The jury returned to the courtroom.)
19 THE COURT: Good morning, ladies and gentlemen. Well,
20 you didn't flooded out after all. I understand you might get
21 flooded out today, though.
22 All right, defense call its next witness.
23 MR. LAUGHRUN: Thank you, Judge Potter. Your Honor, we
24 would call Investigator Walt Bowling, if Your Honor please.
25 WALTER W. BOWLING,
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1 being first duly sworn, was examined and testified as follows:
2 DIRECT EXAMINATION
3 BY MR. LAUGHRUN:
4 Q. Investigator Bowling, would you state your name and
5 title for the members of the jury, please, sir?
6 A. Walter W. Bowling, investigator.
7 Q. An investigator with the Charlotte Police Department?
8 A. Yes, sir.
9 Q. Investigator Bowling, how long have you been so
10 employed, sir?
11 A. With the police department, almost ten years.
12 Q. And with homicide, how long have you been?
13 A. About five years.
14 Q. Back in June of 1996, you had some involvement in this
15 case, is that correct?
16 A. Yes.
17 Q. Investigator Bowling, I'd ask you if you, correct me if
18 I'm wrong, you talked to Investigator Mike Sanders about the
19 case?
20 A. Briefly, yes.
21 Q. And you were in contact with the Allen family down in
22 York, South Carolina, is that correct?
23 A. On that one day, I believe I went down and spoke with
24 them with Investigator Buening.
25 Q. What, if anything, did you tell them about what the
554
1 defendant asked either you or some member of the police
2 department to relate to the Allen family?
3 A. Would you say that again?
4 Q. I will ask you if you would relate to the members of the
5 jury what you told the Allen family that the defendant had asked
6 somebody from the department to speak to them about?
7 A. That he was sorry and that he went to church and prayed
8 for Donald.
9 Q. Okay. I believe you've indicated you passed that along,
10 is that correct?
11 A. Yes.
12 Q. Now, this morning, did I ask you to take a look at
13 Defendant's Exhibit 18, and let me approach with that.
14 MR. LAUGHRUN: Approach the witness, Your Honor?
15 THE COURT: Yes, sir.
16 BY MR. LAUGHRUN:
17 Q. I'm going to ask you what I've marked, Investigator
18 Bowling, as Defense Exhibit 18, and ask you if that appears to
19 be a list of calls for service at 3413 West Boulevard?
20 A. Yes.
21 Q. And I would ask you briefly if we could go through
22 those, you know, do you not, that the police department can
23 provide calls for service if an address is given, is that right?
24 A. Yes.
25 Q. Ask you to look at the first call, that appears to be
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1 complaint number 930110004000, is that correct?
2 A. Yes.
3 Q. And that shows -- we won't go through them all, but call
4 for service was January 10th, '93 at, what is that, 12:04 a.m.,
5 first call?
6 A. It's 12:40 a.m.
7 Q. And it says out there that there were three cars
8 assigned, is that right?
9 A. Yes.
10 Q. And back to the left, type call, 1091, and that would be
11 what, domestic dispute?
12 A. Some type of domestic dispute.
13 Q. The next call down the list, 1063, would be investigate
14 something?
15 A. Just investigate what is going on there. Usually there
16 is remarks on the calls that we receive.
17 Q. 10, next call was a 1093, which would be what,
18 disturbance?
19 A. A disturbance, some type of disturbance. Again, remarks
20 would be in the caller given by the dispatcher.
21 Q. 1082 would be the next call, what would that be?
22 A. Meet someone in reference to something, not necessarily
23 some type of criminal activity, just meet someone.
24 Q. Next call for service is a 1091, what would that be,
25 domestic dispute again?
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1 A. 1093 is next and then 1091, just a disturbance, and then
2 1091 is a domestic, some type of domestic, doesn't have to be
3 family members.
4 Q. Next call, 1060, what would that be?
5 A. Investigate suspicious vehicle.
6 Q. 1039 next call, what would that be?
7 A. It's a crime scene search call. It's usually where our
8 crime lab goes out and processes a scene, break-in or something,
9 for evidence.
10 Q. 1091 would be a domestic dispute again?
11 A. Yes.
12 Q. Next one, 1063, would be investigate?
13 A. Yes.
14 Q. 1039, again CSS which is crime scene search, is that
15 right?
16 A. Yes.
17 Q. 1091, domestic dispute?
18 A. Correct.
19 Q. 1086?
20 A. It's a larceny.
21 Q. 1092 would be?
22 A. It's an assault with a deadly weapon.
23 Q. 1063 would be investigate again, is that right?
24 A. Correct.
25 Q. And 1091 would be domestic dispute?
557
1 A. Yes.
2 Q. Okay. And 1085, the next call?
3 A. Damage to property, I think.
4 Q. 1086 would be another larceny?
5 A. Correct.
6 Q. 1092 would be ADW?
7 A. Correct.
8 Q. 1039, the next one, crime scene search, is that right?
9 A. Yes.
10 Q. 1096, the next call, would be what?
11 A. Broken down car.
12 Q. Okay. 1060, the next call, would be?
13 A. Investigate suspicious vehicle.
14 Q. And the next one, 1099, would be?
15 A. Serve a warrant on wanted person there.
16 Q. I'm sorry?
17 A. A wanted person or serving a warrant, you would use
18 that.
19 Q. Let's go across and look at 1099. Was that
20 April -- May 2nd of 1996 when that call for service went out?
21 A. That's kind of hard for me to follow. Can I take this
22 out?
23 Q. Sure. Called in as -- 1099, I'm sorry?
24 A. May 2nd.
25 Q. Is that right, May 2nd at 3:10?
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1 A. 3:10 p.m.
2 Q. And it looks like there were three cars that went out
3 there?
4 A. Correct.
5 Q. And then the next call for service would be a 1038, that
6 would be a 911 hangup?
7 A. 1063 next.
8 Q. Again, investigate at?
9 A. Right.
10 Q. And the next one, 1038, 911 hangup?
11 A. Yes.
12 Q. 1046 would be what, some sort of alarm, I think we
13 discussed, is that right?
14 A. Yes.
15 Q. And 1047 would be what, a burglar alarm?
16 A. It's an alarm type call. We don't use it very much.
17 Q. And the next one, 1060, suspicious vehicle?
18 A. Yes.
19 Q. Next one, 1038, 911 hangup, is that right?
20 A. Correct.
21 Q. Investigator Bowling, as part of your duties as an
22 investigator, you do what they call paper cases, do you not,
23 with the DA's office?
24 A. Yes.
25 Q. What does papering mean, briefly?
559
1 A. Just preparing the case for their review.
2 Q. And that would include witness statements, lab reports,
3 anything you have, is that correct?
4 A. Yes.
5 Q. And when a DA rejects a case, what does that mean?
6 A. Means that they are not going to prosecute the case.
7 Q. And based on a variety of factors, I take it?
8 A. It could be any reason.
9 Q. Okay.
10 MR. LAUGHRUN: Thank you, Judge Potter, that's all.
11 THE COURT: Cross?
12 MR. WALKER: Briefly, Your Honor.
13 CROSS-EXAMINATION
14 BY MR. WALKER:
15 Q. Investigator Bowling, you had never met the defendant,
16 had you, before you became involved in this case?
17 A. No, I had not.
18 Q. Had you ever even heard of him?
19 A. No.
20 Q. Did -- wen you went down there to McConnells to relay
21 that message, why did you do that?
22 A. I was asked to do that by my supervisor, Sergeant Rick
23 Sanders.
24 Q. So you didn't necessarily go because you believed what
25 the defendant had told the investigators, did you?
560
1 A. That's correct.
2 Q. The district attorney here in Charlotte will refuse to
3 prosecute a case for several reasons, I believe you said?
4 A. Yes.
5 Q. One of those reasons would be insufficient evidence, is
6 that right?
7 A. Yes.
8 Q. Another reason would be because of limited manpower and
9 resources and the ability to prosecute the case in the State
10 Court system, is that right?
11 A. Yes.
12 Q. And that happens routinely as has been your experience
13 with the DA's office here in Charlotte, is that right?
14 A. It's happened a number of times over the last five
15 years.
16 Q. And just because the DA doesn't prosecute a case in
17 State Court, in your experience that doesn't necessarily mean
18 the defendant didn't do the acts that he was originally charged
19 with, does it?
20 A. That's true.
21 MR. WALKER: I don't have any other questions, Your
22 Honor.
23 THE COURT: Redirect?
24 BY MR. LAUGHRUN:
25 REDIRECT EXAMINATION
561
1 BY MR. LAUGHRUN:
2 Q. But the standard over there, is it not, Investigator
3 Bowling, before they accept a case is it's more likely than not
4 that a jury would convict the person, is that a fair statement?
5 A. Well, I mean, that's not -- you know, there is not a
6 line in the sand where they look at that. There are several
7 reasons. They may not like the witnesses, they may not think
8 the witnesses are reliable, or they may -- I mean, we have had
9 several cases that are similar to this where we have come to
10 Federal Court as opposed to State Court.
11 MR. LAUGHRUN: Thank you, Judge Potter that's all.
12 THE COURT: Thank you sir, step down. Call your next
13 witness.
14 MR. LAUGHRUN: May he be excused with the
15 government's -- no objection from the government?
16 THE COURT: With no objection from the government, he
17 may be excused.
18 MR. WALKER: No objection, Your Honor.
19 THE COURT: Thank you, sir.
20 MR. WILLIAMS: Defendants call Cynthia Maxwell.
21 MR. CONRAD: Your Honor, I object and would like to be
22 heard at this point.
23 THE COURT: All right, sir.
24 (Bench conference not recorded.)
25 THE COURT: Members of the jury, we will have to excuse
562
1 you for just a few minutes, please. You can get some more
2 coffee back there.
3 (The jury left the courtroom.)
4 THE COURT: All right, call your witness.
5 MR. WILLIAMS: Cynthia Maxwell.
6 MR. CONRAD: Your Honor, does the Court have a copy of
7 this exhibit?
8 THE COURT: No, I don't think so.
9 MR. LAUGHRUN: We can't give it to you ahead of time,
10 Judge, we haven't called our witness. We've got it, but we
11 haven't called our witness, so we couldn't give you the exhibit.
12 MR. CONRAD: Your Honor, I have no idea why the Court
13 could not preview a copy of an exhibit, and I would ask the
14 Court to do so in conjunction with this voir dire.
15 THE COURT: Well, let me see the thing.
16 MR. LAUGHRUN: Judge, I don't mind doing that, but the
17 problem is, as you know, we can't give Your Honor stuff ahead of
18 time to preview stuff, it's improper.
19 THE COURT: Nobody is fussing with you, I just want to
20 find out what it's all about.
21 CYNTHIA NEAGLE MAXWELL,
22 being first duly sworn, was examined and testified as follows:
23 THE COURT: All right go ahead, Mr. Conrad.
24 MR. CONRAD: Thank you, Your Honor.
25 VOIR DIRE EXAMINATION
563
1 BY MR. CONRAD:
2 Q. Would you state your name for the Court?
3 A. Cynthia Neagle Maxwell.
4 Q. And how are you employed?
5 A. I am a private mitigation specialist.
6 Q. You are a private mitigation specialist, what does that
7 mean?
8 A. That means that I do in-depth psychosocial assessments
9 of the defendant and try and provide an explanation to the Court
10 and to the jury as to how a person gets from a small baby to the
11 situation that they are in now.
12 Q. You do a psychosocial what?
13 A. Assessment.
14 Q. What is that?
15 A. I interview people within the family and people who have
16 significant knowledge of the defendant, I review the records, I
17 review any other documents relating to the family or the history
18 of the family, I talk with the defendant, I talk with experts, I
19 review national literature and try and assist defense counsel in
20 explaining the behavior of the client.
21 Q. Now, how long have you been doing this private
22 mitigation specialist work?
23 A. Since 1993.
24 Q. And what did you do before that?
25 A. Before that, I was -- immediately before that, I was the
564
1 guardian ad litem district administrator for judicial district
2 27A and 27B in North Carolina.
3 Q. And for how long a period of time did you do that?
4 A. Six and a half years.
5 Q. And so would that have dated back to the mid-1980s?
6 A. That's correct, 1985.
7 Q. And before that, what did you do?
8 A. I was the director for the Heart Society of Gaston
9 County.
10 Q. And what did you do as the director of the Heart Society
11 for Gaston County?
12 A. Provided programs and information regarding heart
13 disease and assisted the families and the patients with their
14 psychological well-being, did a little bit of counseling and
15 self-help kind of group.
16 Q. And before you were director of the Heart Society in
17 Gaston County, what did you do?
18 A. I worked as a social worker, a clinical social worker at
19 Mecklenburg Mental Health Services, and I was the volunteer
20 administrator for Mecklenburg Mental Health Services and the
21 public information officer for Mecklenburg Mental Health.
22 Q. And how long did you do that?
23 A. For three years.
24 Q. And what did you do before that?
25 A. I was a recreational and rehabilitation therapist at
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1 Gaston Lincoln Area Mental Health Program in the inpatient unit.
2 Q. And how long were you a recreational therapist at Gaston
3 Mental Health?
4 A. Approximately two years. I helped set up that program.
5 Q. And before that, what did you do?
6 A. I was in college.
7 Q. And do you have any degrees?
8 A. I do.
9 Q. What degree do you have?
10 A. I have a Bachelor of Arts in psychology with a minor in
11 English literature, and I qualified for a Bachelor of Science in
12 medical technology.
13 Q. Do you have any graduate greases?
14 A. I have no graduate degrees.
15 Q. And when and where did you get your B.A. in psych?
16 A. At the University of North Carolina at Chapel Hill.
17 Q. And what year?
18 A. 1975.
19 Q. Do you belong to any professional organizations?
20 A. I belong to the Court Appointed Special Advocates
21 Associates. That is a holdover from my time as the guardian ad
22 litem district administrator.
23 Q. Is that it?
24 A. That's it.
25 Q. Do you have any license?
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1 A. I have no license.
2 Q. You are not a licensed psychologist?
3 A. No.
4 Q. You are not a licensed psychiatrist?
5 A. No.
6 Q. You are not a licensed investigator?
7 A. No.
8 Q. Now, you indicated that the things that you do in a
9 psychosocial assessment are to interview people, review
10 documents, talk to the defendant, talk to experts and review
11 literature, is that correct?
12 A. That's correct.
13 Q. And that's something anybody could do whether they had a
14 license to be an investigator or call them themselves a private
15 mitigation specialist, is that correct?
16 A. Not without the proper training. You wouldn't know what
17 you were seeing.
18 Q. Okay, tell me what training you've gotten to be a
19 private mitigation specialist.
20 A. May I refer to some notes that I have regarding the
21 training?
22 Q. If they would refresh your recollection if you can't
23 testify without that, please do.
24 A. The only reason that I want to refer to my notes is so
25 that I can tell you both the training that I have and the
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1 training that I have been a part of.
2 In 1993, I had direct supervision with the head
3 mitigation specialist at the North Carolina Center for Death
4 Penalty Litigation. On several of my cases, she worked one on
5 one with me. In 1995, I was at the spring mitigation training
6 workshop by the North Carolina Death Penalty Resource Center.
7 In 1996, I was at the spring training workshop for mitigation by
8 the North Carolina Center for Death Penalty Litigation. In
9 1996, I was at the fall mitigation training workshop by the
10 North Carolina Center for Death Penalty Litigation. Again
11 in '96, I was at the fall conference for death penalty defense
12 by the Association of Trial Lawyers. And in 1997, I both
13 participated in and I was a trainer at the spring mitigation
14 training workshop by the Center for Death Penalty Litigation.
15 Q. That's the summary of your training?
16 A. Yes, sir.
17 Q. Now, as part of your efforts in this case, did you
18 prepare a green three-ring binder entitled, jurors mitigation
19 notebook?
20 A. Yes, I did.
21 Q. And is this notebook a result of the efforts you did in
22 this case?
23 A. Yes.
24 Q. And did you include everything that was told to you by
25 every witness that you interviewed?
568
1 A. In the green binder?
2 Q. Yes?
3 A. No, I did not.
4 Q. What did you include in the green binder?
5 A. Summaries of the information that I had accumulated.
6 Q. And by summaries, what do you mean?
7 A. I took the information that I had accumulated from the
8 interviews, from the experts with whom I had talked, from the
9 documents that I reviewed, I utilized the education and
10 training, on the job experience to put those together into a
11 comprehensive diagram basically of the information on this
12 defendant.
13 Q. And does any of the information -- well, strike that.
14 How did you choose what you would include and what you would not
15 include?
16 A. I chose it based upon the psychosocial stressors that
17 were prominent in this defendant's life.
18 Q. And what do you mean when you use the phrase
19 psychosocial stressors, you are not a psychologist, are you?
20 A. I do have a B.A. in psychology, and I have been a
21 therapist for many years.
22 Q. Are you a licensed therapist?
23 A. I am --
24 THE COURT: Just answer the question, yes or no, are you
25 a licensed therapist?
569
1 THE WITNESS: I do not have a printed license.
2 BY MR. CONRAD:
3 Q. So you are not a licensed therapist?
4 A. No. Can I explain that?
5 THE COURT: Go ahead, yes, ma'am.
6 THE WITNESS: In the human resources field, the
7 supervisors have licenses. When you work for an agency such as
8 a mental health center, as long as you are supervised by someone
9 with a license, you can counsel, you can diagnose, you can work
10 the emergency telephone lines, you can do all of those things as
11 long as you are supervised by someone with a license. And in
12 the situations where I have been a practicing therapist, I have
13 worked under someone with a license.
14 BY MR. CONRAD:
15 Q. So you don't have a license or training to be a
16 professional psychologist, correct?
17 A. I don't have the formal education for a license.
18 Q. Now, this life history that you put together begins in
19 1956, does it not?
20 A. Yes, it does.
21 Q. And that is 16 years before the birth of this defendant,
22 correct?
23 A. No, sir.
24 Q. 17 years?
25 A. He was born -- oh, in 1956, yes, sir, that's correct, I
570
1 apologize.
2 Q. And on Page 1 of that report, second paragraph, you talk
3 about, just as Charlotte began changing, so did the lives and
4 customs of the Cooper family. That's part of your work product,
5 is it not?
6 A. Part of my work product, yes, it is.
7 Q. Do you need any form of education or experience or
8 specialty to make that comment?
9 A. You need to be able to ascertain if there are changes
10 going on in the life of a family.
11 Q. And that could be accomplished by any investigator
12 interviewing any of the family members who are alive at that
13 time, correct?
14 A. Correct.
15 Q. And there is nothing about that, putting that in the
16 report that you add to it that that witness could not testify
17 to, correct?
18 A. Could you repeat that for me?
19 Q. Well, your reiterating what they told you offers nothing
20 more than if that witness stood on the witness stand and
21 testified to it, correct?
22 A. In that statement, yes, sir; in the body of the
23 evaluation, no, sir.
24 Q. Well, tell the Court what you add to the presentation of
25 that information that cannot be gleaned from a witness who
571
1 actually lived the experiences you recount, testifying from that
2 witness stand.
3 A. What was brought to that summation of this family is
4 that I was an objective, trained observer to what went on in the
5 family, and I was able to talk with them at length and listen to
6 their stories, their history as they remember it. And I was
7 also able to review records of the family, the whole family as a
8 unit and assess those records to bring to the jury an objective
9 view of what went on in the family from an overview situation
10 rather than from an individual situation, and it is applicable
11 to not being able to see the forest for the trees. You can get
12 an overview of a family, see the dynamics within the family, and
13 then you are able to give a story form to that life and give an
14 overview of what is going on.
15 Q. On Page 18 of your jurors mitigation notebook, you
16 indicate that Mark became depressed and nonresponsive after the
17 assault. Do you have any professional qualifications to render
18 a diagnosis of depression, are you licensed to do that?
19 A. I believe that in that direct statement that you made, I
20 was giving the words of the family, and it was not part of the
21 DSM-4, that I was listing it on an axis, I was utilizing the
22 word "depressed."
23 Q. And again, the best evidence of that would be the family
24 members who could come into court and tell the Court and the
25 jury what symptoms they saw in the defendant at that time, your
572
1 clinical diagnosis of depression offers nothing to that, does
2 it?
3 MR. LAUGHRUN: Objection, Judge, he's badgering the
4 witness.
5 THE COURT: Overruled.
6 THE WITNESS: I did not offer that as a clinical
7 diagnosis, I offered that as a compilation of several family
8 members' interviews and was able to take away some of the time
9 that it would take for these people to come in and give that
10 impression.
11 BY MR. CONRAD:
12 Q. But if they have come in already and given it, your
13 report offers nothing to that, does it?
14 A. I think that it puts it in a chronological perspective
15 and puts it within the perspective of the rest of the family.
16 Families operate as units.
17 Q. On Page 19, you indicate grades in 11th grade, and you
18 have the line in here, note the change in grades, exclamation
19 point.
20 A. Correct.
21 Q. What professional training is required to make that kind
22 of observation?
23 A. Part of this -- this entire report also went to our
24 experts, and in giving them that report, it shows them that they
25 need to look at those grades. We recognize it is universally
573
1 accepted that when children experience a change of grades, then
2 there are things, especially a downward spiral kind of change of
3 grades, then things are going on in their lives that we need to
4 look at as human service providers, and that is what I was
5 indicating to the experts, to the jury also. I mean, they have
6 enough common sense to look at those grades and recognize that
7 something is happening to this child at this period of time.
8 Q. Page 31 of this life history, you indicate that the
9 federal trial begins January 5th, and then you have four entries
10 after that that are going to happen sometime in the future. So
11 it's really not a life history at all, it's a prediction of what
12 is going to happen in the future, correct?
13 A. I think that listing birth dates is fairly innocuous.
14 Q. What is the benefit to the jury of listing future
15 birthdays of Mark, Mario, John Mack and Sonia?
16 A. That was a situation where I had listed the birthdays
17 every year prior to that, and I continued listing those
18 birthdays at that time.
19 Q. You also have attachments to this that include a life
20 line, a genogram and examples of art that the defendant
21 apparently prepared in jail?
22 A. Yes.
23 Q. Turning your attention to the picture on the second page
24 of the art section, who is that a picture of?
25 A. I asked the defendant that, and he told me it was just a
574
1 girl. These are his -- we have the original artworks available,
2 and these are basically things that he did to keep himself
3 occupied while in jail. In fact, the first picture is a doodle
4 that he did on the back of some of the jail rules.
5 Q. A doodle?
6 A. Doodle, when you are doodling with your pencil.
7 MR. CONRAD: Your Honor, I don't have any other
8 questions.
9 THE COURT: All right, Mr. Laughrun.
10 BY MR. WILLIAMS:
11 Q. You've testified in State Court before?
12 A. Yes, sir, I have.
13 Q. And on how many occasions?
14 A. I have testified in a death penalty trial on one
15 occasion in State Court.
16 Q. And what year was that?
17 A. That was in 1997.
18 Q. And were you qualified as an expert in that case?
19 A. I was.
20 Q. And what were you qualified as an expert in that
21 particular death penalty case?
22 A. I was qualified as an expert in child abuse and neglect.
23 Q. And was that based upon the background as set out in
24 your vitae sheet?
25 A. Yes, it was.
575
1 Q. And have you testified in other state cases,
2 noncriminal?
3 A. I have testified in many state cases, noncriminal.
4 Q. And have you worked on criminal cases and civil cases
5 before in the area that you are being asked to testify in this
6 case?
7 A. I have.
8 Q. And have you -- basically, you were asked as a
9 court-appointed mitigation specialist to prepare a life history
10 of the defendant, is that correct?
11 A. That's correct.
12 Q. And that life history is something that you have done
13 many times before, is that correct?
14 A. I have done it many times before.
15 Q. How many times have you prepared a -- how many different
16 life histories have you prepared like this one that you have
17 done in this case?
18 A. I have prepared 30 or more life histories like the one I
19 have done in this case.
20 Q. Are those in cases that you testified or that you just
21 prepared for somebody at somebody's request?
22 A. They are cases that I have prepared at someone else's
23 request, and I -- all except for the one, I did not testify in
24 them.
25 Q. Were those prepared for attorneys or other
576
1 professionals?
2 A. They were prepared for attorneys and other
3 professionals.
4 Q. And when you prepare a life history, is that for the
5 purpose of providing that information to the defense attorneys
6 and to the psychologists or psychiatrists who are testifying or
7 going to testify or involved in the defense of the case?
8 A. Yes, it is.
9 Q. Is the kind of information that you provide and have
10 experience in with regard to obtaining a life history the kind
11 of information that is reasonably relied upon by experts in the
12 fields of psychology and psychiatry as a basis for their
13 opinion?
14 A. Yes, it is.
15 Q. And when you do a life history, you talk to many more
16 people than you -- than testified in this case, is that correct?
17 A. That's correct.
18 Q. How many people in all did you talk to approximately in
19 this case to obtain this history?
20 A. On an informal basis, I probably talked to 50 or 75
21 people.
22 Q. All right. And then once you do that, you also review
23 records and various other items of information before you
24 prepare the typed life history, is that correct?
25 A. That's correct.
577
1 Q. And then after you have done that, you go to the -- and
2 prepare a life line, is that correct, as in your notebook?
3 A. That's correct.
4 Q. And the life line is for what purpose?
5 A. It is to provide me and the other experts with
6 information specific to the defendant and so that we can have
7 basically a graph to see the trends in the family.
8 Q. And does the life line and life history deal with the
9 life of Mark Barnette?
10 A. Yes, it does.
11 Q. In the genogram that you do, is that something that
12 people in your area of work as a mitigation specialist and
13 social workers use as one of their tools in doing a social
14 assessment or a life history?
15 A. That is a common universal kind of tool that is used by
16 both clinical social workers and psychologists that help explain
17 and summarize the life, the problems, the -- and you can also
18 use it to show the strengths of a family.
19 Q. And are the life histories and the life lines that are
20 set out in your notebook tools that are used by psychologists,
21 psychiatrists, social workers and mitigation specialists within
22 their field as part of what they do?
23 A. Yes.
24 Q. And what is the reason for that?
25 A. The reason is to provide them with a way of seeing this
578
1 family in an overall perspective. It is a way of providing them
2 information that is easily conceptualized and that is easily
3 retrieved to give specifics in the life of one of our clients.
4 Q. And would the items that you discussed in or set out in
5 your life history and your time line and your genogram be
6 relevant to the area of mitigation within the confines of the
7 defense of a capital case?
8 A. Yes.
9 Q. And how so?
10 A. They are relevant in that these are the pivotal points
11 that the client has had in his or her life to get to the place
12 where they are now.
13 Q. And you have had training to do that with regard to
14 workshops in the North Carolina Center for Death Penalty
15 Litigation as you have testified. Do those training seminars
16 and workshops prepare you to do the type of thing you did in
17 this case in preparing a notebook with regard to the life
18 history, time line and a genealogy?
19 A. That along with the training that I had under the
20 supervision of licensed therapists in mental health centers and
21 under the supervision of the North Carolina Death Penalty
22 Center.
23 Q. Okay, so you don't have a license. Is there any such
24 thing as a licensed mitigation specialist in North Carolina?
25 A. Not in North Carolina.
579
1 Q. Okay. And you don't render opinions with regard to
2 psychiatric or psychological matters, do you?
3 A. Not in this case situation, no.
4 Q. And all you are doing is prepare this information and
5 putting it together in one place so that not only the lawyers
6 for the defendant can put it together and understand it, but so
7 that the experts such as psychologists and psychiatrists can
8 review it and use it as background information with regard to
9 their opinions?
10 A. That's correct.
11 MR. WILLIAMS: I believe that's all, Your Honor.
12 THE COURT: Anything else?
13 MR. CONRAD: No.
14 THE COURT: All right, Mr. Conrad.
15 MR. CONRAD: Your Honor, one thing is for sure, this
16 witness is not an expert, and I think the guideline for the
17 Court should be Rule 702, testimony by experts. It says if
18 scientific, technical or other specialized knowledge will assist
19 the trier of fact to understand the evidence or determine a fact
20 in issue, a witness qualified as an expert by knowledge, skill,
21 experience, training or education may testify thereto in the
22 form of an opinion or otherwise.
23 Your Honor, I contend this witness is just not an
24 expert, that this area of private mitigation specialty is
25 nothing more than an investigator going out, interviewing
580
1 people, looking at data and putting reports together, and that
2 type of thing doesn't come into court as an expert witness. I'm
3 not saying that their true experts can't rely upon the data this
4 witness has collected and cant render expert opinions in their
5 field of expertise based in part on reliance on this
6 information.
7 What I am contending, that this jury would be confused
8 and misled by the presentation of this witness testifying as a,
9 quote, expert, end of quote, reiterating much of what the jury
10 has already heard, giving opinions on many matters in a 32-page
11 life history which she is not qualified to give. I think the
12 probative value where especially this jury has heard at great
13 length from three generations of family members already, I think
14 the probative value of her testimony is severely outweighed by
15 the danger of confusion and misleading the jury.
16 Secondly, Your Honor, I would contend that the
17 defendants are offering this witness as an expert witness so she
18 can offer opinions, both in the form of oral testimony and in
19 this written product. They have not given notice to us that
20 they intend to offer this witness as an expert. She is not
21 qualified to testify as an expert. And because we haven't
22 gotten notice as required under the rules and because she is, in
23 fact, not an expert, this Court should not allow the witness to
24 testify nor let the notebook come in as substantive evidence at
25 this point, not -- and again, my point, Judge, is not that their
581
1 experts can't rely upon the work product in terms of their later
2 rendering opinions to this jury, but that this witness is not
3 qualified by experience, training or background to render those
4 opinions.
5 She has labeled this notebook as a jurors mitigation
6 notebook. Jurors are the ultimate mitigation specialists. You
7 can call yourself anything you want to call yourself. Anti
8 death penalty advocacy groups can put on seminars to train
9 mitigation specialists. But when all of that is pierced away,
10 she is offering opinions on ultimate issues that the jury is to
11 decide, and she is not qualified to do that.
12 THE COURT: All right, Mr. Williams?
13 MR. WILLIAMS: Judge, what we are trying to do very
14 obviously here is not only to lay out for the jury the basis of
15 the opinion of -- some of the basis of the opinion of the
16 experts to come. But under Lockett versus Ohio and statutory
17 story provisions of the mitigation statute in the federal law,
18 we have a right to present the life of Mark Barnette to this
19 jury, there are different ways to do that, but that is
20 absolutely paramount under the Lockett versus Ohio decision. In
21 order for him to, and us to be able to do that, we can do it
22 through live witnesses. We have attempted to do that. But we
23 cannot take every person that has been involved in 24 years of
24 Mark Barnette's life and parade them into this courtroom,
25 because we would be here for another six weeks.
582
1 So the purpose of this kind of testimony is to give the
2 jury after the jury has a flavor of his life from live witnesses
3 and the family, we have somebody come in, who is trained, to
4 simply come in and prepare a life history from the standpoint of
5 the many other witnesses that she has talked to that deals
6 directly with his life and to put it in some kind of organized
7 form to conceptualize it and organize it in a compact way for
8 the jury to be able to understand the life of Mark Barnette.
9 There is no opinions expressed in this. This is a
10 compilation of information, and it's then put in the form of
11 information in a life history. That's what she is, that's what
12 a mitigation specialist is. There is no licensure, it's people
13 who come in to do this and have done it. And she certainly has
14 been qualified as an expert in abuse and neglect. She has the
15 ability to look at Mark Barnette's life, to then take his life
16 and prepare it in a life history written form and go from there
17 to an exhibit which puts it in a very confined time line method,
18 and that is helpful to the jury. It's helpful to anybody in any
19 kind of a trial where you are using an exhibit to illustrate the
20 testimony of the witnesses, and that is to illustrate the life
21 of Mark Barnette. It's in a short form. It's to try to save
22 time, not to add time to this trial. And I think it's certainly
23 relevant since it deals with his life, and it's just something
24 we can do and it won't take long to do. We put it into evidence
25 and that's it, and that's something that the jury has a right to
583
1 see.
2 MR. LAUGHRUN: Judge, if I could, briefly, Judge, too,
3 under --
4 MR. CONRAD: Your Honor, I --
5 THE COURT: All right.
6 MR. LAUGHRUN: Under 13.35-93, the sentencing statute,
7 it says at the sentencing hearing, information may be presented
8 as to any matter relevant to sentencing, including mitigating or
9 aggravating provisions.
10 THE COURT: Haven't you done that, Mr. Laughrun?
11 MR. LAUGHRUN: Judge, no, sir, we have not. We have not
12 finished. We've got to tie it all together, Judge.
13 THE COURT: All right, go ahead, finish up.
14 MR. LAUGHRUN: Information is admissible, regardless of
15 its admissibility under the rules governing evidence at criminal
16 trials, except prejudice confusing the issue or misleading the
17 jury. It doesn't say cumulative in there, Your Honor.
18 Now, the government doesn't like it because it puts it
19 all together. It ties everything up about his life. We are
20 going to put an expert up today that's going to talk about
21 domestic violence being learned behavior, it goes through
22 generations in the family. This is part of that, and Mr. Conrad
23 can cross-examine her all he wants to. The jury may give it no
24 weight at all. They have the right to disregard. He can argue
25 to it, well, she's working for the defense. He can give it all
584
1 that spin he wants to. It's admissible, Judge. The weight the
2 jury gives it is totally up to them. But I would contend to you
3 based on that provision as Mr. Williams argued, it does tie it
4 all together. It's just like a summary witness, Judge, the
5 government uses in 90 percent of the criminal cases they
6 prosecute, they didn't use it in this case, put a summary
7 witness up, and that's when the rules of evidence apply. They
8 don't apply here. The jury can disregard it at their pleasure,
9 but they have a right to hear the whole thing, Judge, from one
10 witness. And as Mr. Williams said, it's not going to be long.
11 We are not going through page by page of that. We're not going
12 through all 30 some pages line by line, we are not going to do
13 that. That's why we did it this way.
14 THE COURT: Mr. Laughrun, I don't see that she's added
15 one thing to this trial. Just paging through here while y'all
16 were talking, I don't know what the page numbers are, I don't
17 know where you get the page numbers, Mr. Conrad, they don't have
18 page numbers on mine.
19 MR. CONRAD: They are at the bottom, 1A and B, life
20 history.
21 THE COURT: I got that -- oh, I see, that's what it
22 means. Okay, I didn't know they were page numbers. 13A and B,
23 life history. Let's look at a few of these. June 15, Sonia,
24 Mark, Mario and Derrick have paternity test performed and on
25 6-27-87 the results that Derrick is the father of neither of the
585
1 boys is confirmed. We've heard that, what do you want to do it
2 again for?
3 MR. LAUGHRUN: Judge, well, let me tell you, we've got
4 to give the -- there is some stuff in here that is damning to
5 the defendant.
6 THE COURT: All right, next page, Page 14, I'm just
7 picking things out of here at random, Sonia was again going to
8 clubs with Tina Davis and was seeing a drug kingpin, his name
9 was Mark Reagan, he owns a night club, St. Mark's, Mark had a
10 regular girlfriend. What is that -- Page 15, June, this is the
11 year that Sonia and the boys and her father -- that Sonia sent
12 the boys to her father's home on the last day of school in a cab
13 and she went to Atlanta to find work and a place to live.
14 That's been before the jury.
15 MR. LAUGHRUN: Judge, but look, you've got all of the
16 stuff that's not. You've got all of the school records that are
17 in here, and we are going to have to go out and I'm going to
18 tell the Court we are ineffective if we don't do that. We've
19 got the records. We can't just pile up a stack of school
20 records and say, here is this. We've got to bring in witnesses
21 to verify every school record, and we've got them and we can do
22 that. We are going to ask Your Honor for a recess to get those
23 people under subpoena to be here. That's what this witness is
24 for, to collate, accumulate, put it all together and make some
25 sense out of it.
586
1 THE COURT: I'm still reading, Page 18, Mark becomes
2 depressed and nonresponsive after the assault, he was very
3 popular prior to the assault. We've heard that.
4 MR. LAUGHRUN: Judge, you are right, a lot of this you
5 have heard, and you can pick and choose and cut and paste.
6 We've got to get--
7 THE COURT: I'm not picking anything in particular, I'm
8 just glancing through here.
9 MR. LAUGHRUN: I understand, and we are not going to go
10 over it line by line, Judge Potter. We have no intention of
11 doing that. The stuff that were going to --
12 THE COURT: What is the purpose of this witness?
13 MR. LAUGHRUN: The purpose, Judge, is to put it all
14 together. We don't have the information about the school
15 records in, okay. That's in here. We don't have information
16 about where some of the moves were. Some of the family members
17 didn't remember dates and times. We've got that in here. We
18 can't just pick and choose and say, okay, Ms. Maxwell, tell us
19 what the -- she can't sit in the courtroom because she is
20 excluded, which she should have been. We've got to give the
21 jury the whole story about Mark, the good and the bad. Sure,
22 there is some in here that's cumulative, you are absolutely
23 right, but there is a lot of stuff in here, Judge, that's not in
24 here, that's not in here, about his work records. There is some
25 stuff in here that's damning about his work records. The jury
587
1 hasn't heard that yet; we want them to see the whole story. And
2 sure, some of it is what you heard yesterday. If it wasn't, she
3 couldn't testify to it.
4 THE COURT: What are you going to try to designate this
5 witness as, an expert in mitigation?
6 MR. LAUGHRUN: She's an expert as she said earlier in
7 that and a mitigation expert. We are not going to ask opinion
8 questions, Judge. We are not going to ask, in your opinion as a
9 mitigation specialist, what happened here. She is a fact
10 witness, Judge, and that's her title. You can be -- you can
11 change the oil in a car and be an expert. As long as you've got
12 some specialized training, and she's been a social worker,
13 Judge, for many years, she's a guardian ad litem, and guardian
14 ad litem's, what they do, Judge, is they take over children who
15 are abused and neglected and they are basically the children's
16 advocate in court, is my understanding.
17 THE WITNESS: Yes, sir.
18 MR. LAUGHRUN: They go to court and advocate for
19 children who are products of this environment that the jury is
20 supposed to hear about, so they have sat through -- and, Judge,
21 juvenile court is unlike any court in the world. It's like you
22 told -- you said one time it's like a zoning hearing, it all
23 comes in. That's the way juvenile court is. And that's what
24 this person is trained to do, she's trained to pick out --
25 THE COURT: You are trying to make a juvenile court out
588
1 of this.
2 MR. LAUGHRUN: No, sir, I'm not, Judge.
3 THE COURT: I'm not going to allow her to testify. I
4 just do not think she's qualified to testify about anything. If
5 you've got some investigator or somebody to summarize things,
6 fine, but not this one.
7 MR. LAUGHRUN: She is that person, Judge, she is that
8 person. She's the only investigator we've got. We have not
9 come to court and asked Your Honor for tons of funds to do
10 that. She is the person designated to do this. If not, we've
11 got to go back and ask Your Honor for a recess and get a witness
12 to come in and testify to everything on here, school records,
13 employment records, things like that.
14 MR. CONRAD: We will stipulate to all that, Judge.
15 We'll stipulate to all of the school records, stipulate to all
16 the employment records. They can't use that to get an otherwise
17 not qualified person into court as an expert. They just can't
18 do that. We'll stipulate --
19 MR. LAUGHRUN: Then why don't they stipulate the
20 admissibility of this then?
21 THE COURT: You're not going to stipulate to this
22 notebook and give it to the jury, no.
23 MR. LAUGHRUN: Well, I'm just asking if they'll
24 stipulate to that. I mean, she ties it all together, Judge.
25 And now we've got to go back and pick and choose, and we are
589
1 going to ask Your Honor for a recess to do that.
2 THE COURT: I find she is not qualified. They will
3 stipulate to anything that you want them to stipulate to as far
4 as school records are concerned or anything else, but not the
5 testimony of this witness. It goes before the jury with the
6 impression that she is some expert on something, no.
7 MR. LAUGHRUN: Well, can you just let her testify as to
8 what she did in the case, Judge, without qualifying her as an
9 expert? Here is what she did, she prepared this and it's a
10 result -- it's a result of her investigating and talking --
11 she's got over 200 hours, Judge, of talking to folks about this
12 family, about these records. We've had to get records from
13 three different states, Judge, and she's done that. I mean,
14 without qualifying her as an expert, say, here is what I came up
15 with and here is why. The experts are going to -- it's going to
16 dovetail in to Dr. Halleck, Dr. Salton, Dr. Cunningham. It's
17 going to all fit in together.
18 MR. CONRAD: Your Honor, they have experts, real experts
19 that will come in and testify about their opinions based on the
20 information that they relied upon, and they can rely upon
21 anything this witness did in terms of investigating the case if
22 it's reasonably relied upon in the field of expertise. They
23 don't need this witness to do that. It's just misleading to the
24 jury, and it confuses the issues. They have real experts coming
25 up that can testify that certain opinions were formed because of
590
1 reliance upon certain materials.
2 MR. LAUGHRUN: Judge, she doesn't form any opinions, she
3 is not that type of witness.
4 THE COURT: Just a minute. Mr. Conrad, what is it that
5 you will stipulate to as far as history?
6 MR. CONRAD: I have heard Mr. Laughrun say he's got to
7 ask for a recess and go get school records and employment
8 records and all of that. All of that is something is that we
9 will stipulate to the jury. He can prepare a short summary of
10 school records; we don't have any objection to that. We have
11 put employment information before the jury, and if he's got -- I
12 know that he has employers on his witness list that will
13 testify, so that's coming in to and there is no objection to
14 it. I will not object to experts that they call later on
15 relying upon this information if that's the type of information
16 reasonably relied on in the field of their expertise. Judge,
17 all I'm saying is that this particular witness is unqualified to
18 do what they are asking her to do, not that other experts can't
19 rely upon it.
20 MR. LAUGHRUN: Can I ask a stupid question, Judge I've
21 asked them before? Why in the world did we -- why in the world
22 was she appointed as a mitigation expert in this field? Your
23 Honor saw her qualifications, you saw her vitae.
24 THE COURT: I didn't know what you were getting
25 Mr. Laughrun, all I know was -- I didn't see any qualifications.
591
1 MR. LAUGHRUN: Yes, sir, you saw a vitae sheet, Judge.
2 MR. CONRAD: At that time, Your Honor, we had no
3 opportunity to voir dire this witness, we weren't even part of
4 that process. And after our voir dire, you know more about this
5 witness's background than her qualifications.
6 MR. LAUGHRUN: And, Judge, again, we are not asking her
7 to come in and give an opinion about it.
8 THE COURT: I understand that at this point. I think
9 that's what you started off at, but you are not going to get
10 that.
11 MR. LAUGHRUN: No, sir, we had no intention of asking
12 her any opinion questions whatsoever.
13 THE COURT: Is there any way we can make a summary of
14 what the records are in here?
15 MR. LAUGHRUN: That's what that is, Judge.
16 THE COURT: I'm talking to him. Would you stipulate to
17 the summary of these records?
18 MR. CONRAD: I will stipulate to any school records they
19 want to put it and any employment records. Those are the two
20 things that I heard Mr. Laughrun say.
21 MR. LAUGHRUN: Judge, I haven't, to be deferential to
22 Your Honor, I was in my office until 10:30 last night going over
23 with our experts. I have not and Mr. Williams have not gone
24 through here and said, okay, now --
25 THE COURT: We can do that at a later time.
592
1 MR. LAUGHRUN: Judge, we are almost through with our
2 case now.
3 THE COURT: We can do that today or tomorrow or
4 whenever. We are not going to have it by the testimony of this
5 witness.
6 MR. WILLIAMS: May I address the Court just briefly?
7 THE COURT: Yes, sir.
8 MR. WILLIAMS: Would Your Honor consider to allow us to
9 at least introduce through this witness the time line only,
10 which is this document? And let me ask the Court to listen to
11 me, please. This is the time line which is a blowup of that
12 document in there, and we would offer this exhibit to illustrate
13 the testimony of the witnesses in the life of Mark Barnette.
14 THE COURT: Well, I can't see it except a lot of dots.
15 MR. LAUGHRUN: It's in your notebook, Judge.
16 MR. WILLIAMS: It's in your notebook, Your Honor. It's
17 Tab 3, I think, Your Honor.
18 THE COURT: Oh, that thing?
19 MR. LAUGHRUN: It says life line.
20 MR. WILLIAMS: This is simply a blowup of that, and we
21 would offer -- we would offer all of it, but at the very least,
22 would you consider allowing us to put that into evidence to
23 illustrate the testimony of the witnesses in the life of Mark
24 Barnette?
25 THE COURT: What witnesses you talking about, the ones
593
1 who have already testified?
2 MR. WILLIAMS: All of the witnesses who have testified.
3 And there is also the statement of Tina Davis that is going to
4 be offered into evidence per stipulation with the government.
5 MR. LAUGHRUN: Judge, the photographs in the life line
6 have already been offered. They were identified and admitted
7 yesterday by Your Honor through Sonia. So all of those, it's no
8 new evidence, it merely illustrates it just like you would a
9 photograph. And all of the information in there about the
10 dates, conviction dates are in there, dates the government says
11 it's paraded before the jury about the defendant being convicted
12 a certain -- they're in there, too. We are not trying to cut
13 and paste.
14 MR. CONRAD: Do I understand defense counsel to be
15 saying that there is no new information on that time line?
16 MR. LAUGHRUN: I didn't say that, Judge.
17 MR. CONRAD: I thought that's what you said.
18 MR. LAUGHRUN: I'm saying what is on there has already
19 been offered or we have evidence, for example, school records,
20 stuff like that, to verify.
21 THE COURT: Well, if it's already been admitted.
22 MR. WILLIAMS: We know all of the photographs have been
23 admitted.
24 THE COURT: I'm just asking you if it's all been
25 admitted, then I see no harm in letting them summarize that to
594
1 the jury.
2 MR. CONRAD: Your Honor, could you give us over the
3 lunch break to review this and to -- we might just stipulate to
4 the admissibility of that life line.
5 MR. WILLIAMS: That would be fine.
6 THE COURT: I think that's fine.
7 MR. CONRAD: But my concern is that there is a bunch of
8 stuff in there that there is no testimony for.
9 THE COURT: I haven't looked at it except --
10 MR. WILLIAMS: This is a blowup, if Your Honor please,
11 of what is in notebook, so you don't need --
12 THE COURT: I understand that, but I haven't had a
13 chance to go through and check everything in there. I'm just
14 saying that if it's just a history, which you've already been
15 through, I think it might be admissible, but let the government
16 look at it.
17 All right, ready to start?
18 MR. CONRAD: Yes, sir.
19 THE COURT: You can step down, thank you.
20 MR. LAUGHRUN: Judge, can we for the record offer
21 Defendant's Exhibit --
22 THE COURT: Yes, sir, you can offer the notebook for the
23 record.
24 MR. LAUGHRUN: 57 for the record.
25 THE COURT: What is the number?
595
1 MR. LAUGHRUN: 57, Your Honor, for the record, if Your
2 Honor please.
3 THE COURT: Yes, sir, you can offer it for the record,
4 admitted for the record and the record only.
5 THE COURT: Do you have another witness you can call
6 now?
7 MR. LAUGHRUN: Sir, could you give us about five
8 minutes, Judge, so I can find out who's here?
9 THE COURT: Yes, sir, we will take longer than that. We
10 will take till a quarter of, is that enough time for you?
11 MR. LAUGHRUN: Ten minutes is fine, Judge.
12 THE COURT: Let's make it 10:45, that's about ten
13 minutes. Are you going to tell me after this -- I'm not going
14 to look at it myself.
15 MR. CONRAD: I will look at it at lunchtime.
16 THE COURT: I will let y'all see if you have any
17 objection to it. Recess until 10:45.
18 (Brief recess.)
19 THE COURT: Mr. Laughrun, are you ready?
20 MR. LAUGHRUN: Judge, we have -- there are some folks --
21 we have got an exhibit we want to offer, stipulated to by the
22 government, of Tina Davis. We have got copies for all of the
23 jury. The government objected to us reading it. We've got a
24 copy for all of them to read.
25 THE COURT: What is that?
596
1 MR. LAUGHRUN: Statement from witness Tina Davis that we
2 had. She is medically unavailable due to her cancer.
3 THE COURT: Oh, you have no objection to that?
4 MR. CONRAD: No.
5 THE COURT: All right, good.
6 MR. LAUGHRUN: We would like them to read that. Then we
7 have got a person here from the jail, and then we've got three
8 folks from Butner who are supposed to be here at 11:00 o'clock.
9 THE COURT: How long is the statement?
10 MR. LAUGHRUN: It's six pages.
11 THE COURT: All right, you've got one for each one of
12 the jurors so they don't have the pass it around?
13 MR. LAUGHRUN: We have one for each juror.
14 THE COURT: All right, bring them in.
15 (The jury returned to the courtroom.)
16 THE COURT: Apologize for the delay, members of the
17 jury, but we had to take up something which came up this morning
18 and it took longer a little bit more time than we planned.
19 All right, I believe the defendant has some statements
20 from a witness who is not able to be here because she's
21 medically indisposed, is that correct.
22 MR. LAUGHRUN: Yes, sir.
23 THE COURT: Were going to pass that to you. You can
24 read it, each one of you can take a chance to read it.
25 MR. LAUGHRUN: It's a statement, Judge, dated
597
1 September 23rd, 1997, Defendant's Exhibit 56, of witness Tina
2 Davis. We have a copy for the Court and a copy for all of the
3 jurors, if I could give them to Gerry to pass to the jury.
4 THE COURT: All right, sir, fine. Do you have a copy
5 for the Clerk to file?
6 MR. LAUGHRUN: Yes, Your Honor.
7 THE COURT: All right, does everybody have a copy -- oh,
8 still passing them out.
9 Okay, we will all be quiet and let y'all read that to
10 yourselves.
11 MR. LAUGHRUN: Judge, may we approach the bench while
12 they are reading that?
13 THE COURT: Yes, sir.
14 (Bench conference not recorded.)
15 (Pause while the jury reads the statement.)
16 THE COURT: I believe all of the jurors are finished
17 reading the statement by Tina Davis. Tina Davis, as I
18 understand it, has cancer, is that right, Mr. Laughrun?
19 MR. LAUGHRUN: Judge, Mr. Williams just went to get the
20 diagnosis if you'd like to have that.
21 THE COURT: I mean, that's what she's been diagnosed
22 with, cancer?
23 MR. LAUGHRUN: She has spinal cancer, Your Honor, and is
24 confined to a wheelchair and is under chemotherapy and other
25 extreme medication for the pain.
598
1 THE COURT: That's the reason, of course, that she is
2 not here to testify, and the government has agreed to let y'all
3 read this statement which was collected by Ms. Cynthia Maxwell.
4 Thank you all. Ready for your next witness,
5 Mr. Laughrun?
6 MR. LAUGHRUN: We call Sergeant Belton, if Your Honor
7 please.
8 ANTHONY BELTON,
9 being first duly sworn, was examined and testified as follows:
10 DIRECT EXAMINATION
11 BY MR. LAUGHRUN:
12 Q. Would you state your name for the Court, please?
13 A. Anthony Belton.
14 Q. Mr. Belton, by whom are you employed, sir?
15 A. Mecklenburg County Sheriff's Office.
16 Q. What is your capacity there, sir?
17 A. I'm an assistant commander of M A classification and
18 records.
19 Q. And you are a sergeant there with the sheriff's
20 department?
21 A. Yes, sir.
22 Q. Sergeant Belton, who is your immediate supervisor?
23 A. Captain Allen E. Cobb.
24 Q. Where is Captain Cobb today?
25 A. He happens to be on training.
599
1 Q. So he had prescheduled training?
2 A. Yes, sir.
3 Q. And you work directly under him, is that correct?
4 A. Yes, sir.
5 Q. What do y'all do at M A classification, what is your
6 job?
7 A. My job is to ensure that all pretrial detainees are
8 housed in different custody levels such as minimum, medium and
9 maximum custody.
10 Q. And do you also have access to all the records of the
11 Mecklenburg County jail?
12 A. Yes, sir, I do. Second part of my job is to have all
13 incoming records to come into our section, and we do have access
14 to all archive records, too.
15 Q. Archives meaning old records?
16 A. Old records, yes, sir.
17 Q. Now, at one time, the Mecklenburg County Sheriff's
18 Department had a facility up at what I call Spector Drive, is
19 that right?
20 A. Yes, sir.
21 Q. What I call the pods up there, is that right?
22 A. Yes, sir.
23 Q. Closed that down for awhile, moved folks to the new
24 jail, and now the pods, are they reopened, is that a fair
25 statement?
600
1 A. Yes, sir.
2 Q. The folks that were out at Spector Drive were moved to
3 the new facility, is that correct?
4 A. That's correct.
5 Q. Are you familiar with the jail records for Aquilia
6 Marcivicci Barnette, Sergeant?
7 A. Yes, I am, sir.
8 Q. Have you reviewed those records before coming to court
9 today?
10 A. Yes, I have.
11 Q. And tell the jury whether or not -- Mark has been in
12 custody since June of '96, is that correct?
13 A. Yes, sir.
14 Q. Up until today?
15 A. Yes, sir.
16 Q. Has he had any infractions, writeups or disciplinary
17 actions at all?
18 A. No, sir.
19 Q. None at all?
20 A. None at all.
21 Q. And if he had one of those, it would come to your
22 office, is that correct?
23 A. Yes, sir, it would.
24 Q. And all of those records are computerized, are they not?
25 A. Exactly.
601
1 Q. And if he had one at even the Spector Drive facility, it
2 would come to your office at the main jail, is that a fair
3 statement?
4 A. Exactly.
5 MR. LAUGHRUN: Thank you, Sergeant Belton.
6 THE COURT: Cross?
7 MR. WALKER: We don't have any questions.
8 THE COURT: Thank you very much, sir. Call your next
9 witness.
10 MR. LAUGHRUN: Judge, may we check and see if our folks
11 are here?
12 (Pause.)
13 MR. LAUGHRUN: May we approach Your Honor for one
14 second?
15 THE COURT: Yes, sir.
16 (Bench conference not recorded.)
17 SALLY JOHNSON,
18 being first duly sworn, was examined and testified as follows:
19 DIRECT EXAMINATION
20 BY MR. LAUGHRUN:
21 Q. Dr. Johnson, would you state your name for the members
22 of the jury, please, ma'am?
23 A. Yes, my name is Dr. Sally Johnson.
24 Q. Dr. Johnson, by whom are you employed, ma'am?
25 A. I'm employed by the United States Public Health Service
602
1 assigned to the Federal Bureau of Prisons at the federal
2 correctional institution in Butner, North Carolina.
3 Q. And Dr. Johnson, for the record, where is Butner, North
4 Carolina exactly?
5 A. Butner, North Carolina is about 150 miles from here.
6 It's in the Research Triangle near Raleigh, Durham and Chapel
7 Hill.
8 Q. Straight up I-85?
9 A. That's correct.
10 Q. Dr. Johnson, I know you just got here today, and we
11 appreciate you being here. Tell the members of the jury exactly
12 what you do for the USP at Butner?
13 A. Okay. At the institution at Butner, I am the chief
14 psychiatrist and I'm also the associate warden for health
15 services, which means that administratively I'm responsible for
16 the running of the psychiatric hospital and for the general
17 medical care that is given to our population of about 1,000
18 inmates. Those inmates are both people who are convicted of
19 crimes and serving their sentences and those who are sent to the
20 Court for evaluations. And I'm administratively responsible for
21 that, and I also do evaluate patients who are referred by the
22 Court and supervise patients who are in treatment there at the
23 hospital.
24 Q. What is your qualifications and background, you have a
25 medical degree, is that correct?--
603
1 A. That's correct, I have a medical degree and I have
2 completed specialty training in psychiatry, I did my training at
3 Duke, and then I am board certified in psychiatry and neurology
4 and subspecialty board certified in forensic psychiatry.
5 MR. LAUGHRUN: Will the government stipulate to her
6 qualifications as a forensic psychiatrist?
7 MR. CONRAD: Yes, sir.
8 MR. LAUGHRUN: Is that a fair stipulation, Doctor,
9 forensic psychologist?
10 THE WITNESS: That's correct.
11 THE COURT: The Court will so find her.
12 BY MR. LAUGHRUN:
13 Q. Dr. Johnson, correct me, the Butner unit is a secure
14 facility?
15 A. That is correct, it -- well, it's both a minimum
16 security camp and a medium security federal prison that has a
17 hospital, so the hospital is considered administrative being
18 that it takes all security of inmates.
19 Q. And it would be a -- it's not a camp, that part is not a
20 camp, is that correct?
21 A. That's correct. The camp is adjacent to the main
22 facility, but we -- I have responsibility for both.
23 Q. And you are familiar and you know the defendant, Aquilia
24 Marcivicci Barnette, is that correct?
25 A. That's correct.
604
1 Q. And Dr. Johnson, you had a chance to see him back in the
2 fall of this year, is that correct?
3 A. That's correct.
4 Q. He was in the Maryland pod, is that right?
5 A. Pardon?
6 Q. The unit where you -- where the evaluations are done is
7 the Maryland pod, is that right?
8 A. It's not actually a pod. He was admitted through the
9 Maryland seclusion admission unit and then subsequently housed
10 in the Maryland open population unit, yes.
11 Q. And he moved out of the seclusion area, is that correct?
12 A. That is correct.
13 Q. Why was he moved out of that, Dr. Johnson?
14 A. Well, our interest in doing evaluations is to keep
15 patients in the least restrictive area that we can, and so we
16 admit everyone through the seclusion admission unit, which is
17 our most secure unit where the cells are individual. And
18 then --
19 Q. Isolation?
20 A. Well, not necessarily. People may be coming out on
21 passes, but it is the most restricted unit. And then we moved
22 him into the open population unit, which is one of the housing
23 units in the hospital, I think about midway through the
24 evaluation, because it was determined he could function out
25 there to complete the evaluation.
605
1 Q. And I take it if his actions had been other than
2 appropriate, he would not have been allowed to go into the open
3 population, is that a fair statement, Dr. Johnson?
4 A. Right. If we felt that he was at risk of harming
5 himself or harming others or being harmed by others on an
6 imminent basis, we would not have put him in the population.
7 Q. And Dr. Johnson, you prepared a report about your
8 findings, is that correct?
9 A. That is correct. I prepared a report for the Court
10 regarding my evaluation.
11 Q. Do you have a copy of that report there with you?
12 A. Yes, I do.
13 Q. I would ask you if you would turn to Page 3 of your
14 report, beginning on about the first full paragraph, dates of
15 contact, administered, are you with me there, Dr. Johnson?
16 A. That's correct.
17 Q. Second, first -- first sentence, second sentence there,
18 he was generally cooperative with the evaluation. Although he
19 indicated his attorneys had instructed him not to discuss
20 detailed information about the events, nevertheless he spoke
21 openly and freely about his behavior around the time in
22 question. Is that a fair statement?
23 A. That's correct.
24 Q. And the next sentence, he is a generally reliable
25 historian, and that I take it based on what he told you, you had
606
1 some background information before you interviewed Mr. Barnette,
2 is that right?
3 A. Well, actually, no. I started interviewing Mr. Barnette
4 first, but then I did have a significant amount of background
5 information and the opportunity to speak to other people
6 throughout the evaluation period.
7 Q. And I take it that after you talked to him and then put
8 that up with the collateral information you got, you still came
9 to the conclusion he was a reliable historian, is that correct?
10 A. That is correct.
11 Q. Now, if you would go down to Page 3, again, near the
12 bottom, Mr. Barnette describes his early life in relatively
13 positive terms, some of what he viewed as excessive physical
14 discipline on the part of his father towards himself and some
15 excessive alcohol use by his mother. I take it that's what he
16 told you, is that correct?
17 A. That is correct.
18 Q. I'd ask you if you could to turn over to Page 5, second
19 full paragraph, detailed account of his alcohol use beginning at
20 age 12, describes drinking to the point of intoxication on that
21 occasion and was drinking on the day prior to the alleged
22 offenses. I take it he told you that, Dr. Johnson, is that
23 correct?
24 A. That is correct.
25 Q. The second -- third full paragraph, he claims that while
607
1 in high school, he became upset over a relationship and took an
2 overdose of some kind of over the counter medication, correct?
3 A. That's correct.
4 Q. And moving to Page 7 of the report, first full
5 paragraph, he describes that an uncle assisted him in trying to
6 get a job at a Saturn car dealership, describes that the job
7 fell through and left him, quote, in a funk, close, describes
8 himself as sinking to a, quote, below ground zero, close quote.
9 I take it that's what he told you, Dr. Johnson?
10 A. That's correct.
11 Q. And then the last paragraph on Page 7 describes that he
12 was surprised that no one came to arrest him, and he spent the
13 next several weeks at his mother's home feeling frightened,
14 depressed and brooding over the loss of the relationship. I
15 take it that's what he told you, correct?
16 A. Yes, that's a summary of what he told me, not actually a
17 quote.
18 Q. Not word for word?
19 A. That's correct.
20 Q. I take it the word for words are in your quotations?
21 A. That's correct.
22 Q. Page 8, Dr. Johnson, the second sentence of that
23 paragraph, Page 8, Mr. Barnette indicated his rate of
24 consumption of alcohol increased in the weeks prior to the
25 current alleged offenses. I take it that's a summary of what he
608
1 told you?
2 A. Yes.
3 Q. The next to last paragraph, Page 8, Mr. Barnette
4 indicates, quote, I just broke, I'd had enough, and he got
5 dressed and, quote, just split, close quote, leaving by the side
6 door with his gun. Quote, I felt evil come over me, I had never
7 been that angry, and states his anger scared him. Again, in
8 quotes would be his words exactly?
9 A. That's correct.
10 Q. And then the next sentence, in his own assessment, had
11 he not been drinking, the thought of heading to Roanoke crossed
12 his mind, he may not have done it, he left the house because,
13 quote, he wanted answers, close quote, correct?
14 A. That's correct.
15 Q. I would ask you to go to Page 9, Dr. Johnson.
16 A. Uh-huh.
17 Q. First full paragraph, Mr. Barnette shared a little about
18 the first victim, Donald Lee Allen. Periodically he indicated
19 that he could empathize with Mr. Allen's family and there was
20 nothing he could say or do which would have ameliorated their
21 loss, correct?
22 A. That is correct.
23 Q. And the second paragraph from the bottom, Page 9, third,
24 fourth sentence from the bottom, his mother apprised him that
25 the law enforcement authorities were looking for him, he told
609
1 her to go ahead and call them, he indicated he was allowed a few
2 hours to spend with his family and did not resist arrest when
3 authorities arrived, he was subsequently taken into custody, is
4 that correct?
5 A. That is his account, yes.
6 Q. And that's based on -- you got some collateral
7 information about that information?
8 A. That is correct.
9 Q. Paragraph -- Page 10, I'm sorry, Dr. Johnson, top of the
10 page, Mr. Barnette describes coming to grips with what he had
11 done shortly after the crime was committed, fully intended to
12 kill himself because he believed his life was over, he also
13 describes feeling overwhelmed with the magnitude of his
14 behavior. I take it that's what he told you there, too?
15 A. Yes.
16 Q. Page 10, second paragraph from the bottom, which again
17 is what you told me about earlier, I believe, he was admitted to
18 the seclusion, slash, admission unit which is routine procedure
19 for new admissions. He was kept in that unit until it was
20 determined that he was suitable to function in the open health
21 services population, is that correct?
22 A. Yes.
23 Q. And I take it he was discharged on December 19th back to
24 Charlotte?
25 A. Yes, he was taken into the marshal's' custody and
610
1 returned here.
2 Q. Page 11, the last sentence on the first paragraph, he
3 received no disciplinary actions or incident reports during the
4 evaluation period, the next paragraph, he reported promptly to
5 appointments, was cooperative with interviewing and
6 psychological testing, is that correct?
7 A. Yes.
8 Q. Page 11 at the very bottom, the first sentence of the
9 last paragraph, in discussing with Mr. Barnette his mental state
10 around the time of the alleged offenses, he disclaimed the
11 presence of any mental illness. Is that what he told you?
12 A. Yes.
13 Q. And the last sentence of Page 12, he was able to express
14 remorse for his behavior and to express sympathy for the
15 victim's family, is that correct?
16 A. Yes.
17 Q. And Dr. Johnson, at our request I think you sent a
18 letter to the Court about Mr. Barnette's behavior there.
19 MR. LAUGHRUN: May I approach, Your Honor?
20 THE COURT: Yes.
21 BY MR. LAUGHRUN:
22 Q. Defendant's Exhibit 56, I would ask you, Dr. Johnson, if
23 that's the letter you sent to His Honor back in January of this
24 year?
25 A. Yes, it is.
611
1 Q. And it says again what you told me earlier, that he
2 remained in the unit until moved, that he was no incident
3 reports, infractions or writeups, is that correct?
4 A. That's correct.
5 MR. LAUGHRUN: Thank you, Dr. Johnson. Thank you, Judge
6 Potter.
7 THE COURT: Cross?
8 CROSS-EXAMINATION
9 BY MR. CONRAD:
10 Q. Dr. Johnson, my name is Bob Conrad. What was the dates
11 that you had the defendant under observation at Butner?
12 A. He was admitted on, let me check here, he was admitted
13 on the 17th of November and he left on the 19th of December,
14 1997.
15 Q. So basically about a month previous?
16 A. That's correct.
17 Q. And he was aware at that time or indicated to you at the
18 time that he was aware of his jury trial was coming up in
19 January?
20 A. That is correct.
21 Q. And he was able to conform his actions to the rules at
22 Butner during this time period as the jury trial was coming up
23 in a month?
24 A. That is correct. He was able to conform his actions
25 during the time period he was there for evaluation, yes.
612
1 Q. On Page 5 at the bottom of the page, he indicated to you
2 that he was injured in an event where a distant cousin shot him
3 in his home, do you recall him telling you about that?
4 A. Yes.
5 Q. Did he tell you that he had previously fired a weapon in
6 his distant cousin's home, did he tell you that?
7 A. I don't recall whether he told me that, I could go back
8 to look through my material, but I don't remember that history.
9 Q. Okay. Now, on Page 9, the first full paragraph of your
10 report, he did indicate that before he encountered Donald Lee
11 Allen, his rage could have been directed at anybody, did he tell
12 you that?
13 A. That is correct.
14 Q. He did not know the victim and his encounter with him
15 was one of chance and part of his larger intention of finding
16 transportation to Roanoke, did he say that?
17 A. That's correct.
18 Q. When he was talking about killing Robin Williams, did he
19 indicate to you that she looked into his eyes and stated, you
20 are not going to kill me, and grabbed at his gun?
21 A. That is correct.
22 Q. Did any of your collateral information that you received
23 indicate that she ever said that or grabbed at his gun?
24 A. I didn't have a source of information to observe that to
25 provide the information, so that is the only account of that
613
1 that I have.
2 Q. And so when you offered an opinion that he was a
3 generally reliable historian, there were many points in his
4 history of -- well, strike that.
5 When he is talking to you about his history, there are
6 many points where you don't have collateral information to
7 assess the reliability of that, is that a fair statement?
8 A. There is certainly information in his history that he is
9 the only source to provide, but generally across the history
10 that was verifiable, he was consistent in his account.
11 Q. And that is history primarily of his background?
12 A. Well, it's both a history of his background and a
13 history of his criminal behavior.
14 Q. Did he ever mention to you anything involving holding a
15 knife to the throat of a woman?
16 A. I believe I -- I believe I read about that incident in
17 some of the collateral information and we talked about the
18 relationship in which it was involved, if I am correct on that.
19 Q. He told you about several things involving a woman named
20 Alesha Chambers, did he not?
21 A. That is correct.
22 Q. And he indicated to you that one charge was pled down to
23 a felonious restraint?
24 A. That's correct.
25 Q. Do you now know that that was actually a jury trial?
614
1 A. I believe that I did know that it was a trial, yes.
2 Q. And in talking to you about that event, did he tell you
3 that three days later he had held a knife to that person's
4 throat?
5 A. I don't believe he recounted that in that proximity, not
6 to my recollection.
7 MR. CONRAD: That's all I have, Your Honor.
8 MR. LAUGHRUN: No further questions.
9 THE COURT: Thank you, Doctor, sorry you had such bad
10 weather to come over here in.
11 THE WITNESS: Thank you.
12 THE COURT: Call your next witness.
13 MR. LAUGHRUN: Your Honor, we would call Nadine Wilson.
14 NADINE RENEE WILSON,
15 being first duly sworn, was examined and testified as follows:
16 DIRECT EXAMINATION
17 BY MR. LAUGHRUN:
18 Q. Ma'am, would you state your name for the jury, please?
19 A. Nadine Renee Wilson.
20 Q. Ms. Wilson, by whom are you employed, where do you work?
21 A. I work at FCI Butner.
22 Q. FCI is a federal correctional institute at Butner, North
23 Carolina, is that correct?
24 A. Yes, it is.
25 Q. You currently work in what is called the Duke unit?
615
1 A. Its Maryland unit, all of them. It's the mental health
2 division.
3 Q. And for the jury's benefit, the sections at Butner are
4 divided into names of ACC schools, is that right, there's
5 Maryland, Clemson, Carolina, State, Wake Forest?
6 A. Yes.
7 Q. Georgia Tech?
8 A. Yes, Georgia Tech, yes.
9 Q. And that's just the name of the particular unit you work
10 in, is that correct?
11 A. Right.
12 Q. Now, what are your duties there, Ms. Wilson?
13 A. As a nurse, I'm a registered nurse, and I administer
14 medication, I assess patients and give them instructions on how
15 to get the medical care at the institution and who to see if
16 they need medical help or whatnot.
17 Q. How long have you worked at FCI Butner?
18 A. How long have I worked there?
19 Q. Yes, ma'am.
20 A. Ten months.
21 Q. Back in the fall of this year, particularly in November
22 and December of '97, did you have an occasion to meet the
23 defendant, Aquilia Marcivicci Barnette?
24 A. Yes, I did.
25 Q. What was your relation -- how did you meet him?
616
1 A. When he came in, I had to do what they call intake
2 screening. That's when we question the inmate and find out all
3 the information that we need, medical information, next of kin,
4 last job, home information and all that kind of stuff, and let
5 them know the tests that we run, the blood test and all things
6 like that.
7 Q. Was he cooperative with you?
8 A. Yes, he was.
9 Q. Give you any problems while he was there?
10 A. None whatsoever.
11 Q. Did you talk to him on a regular basis?
12 A. Yes.
13 Q. What are some of the things the two of you in general
14 would talk about?
15 A. Just how, you know, how he was feeling about being at
16 Butner, did he know why he was there, did he -- what special
17 needs he might have needed, to talk to someone, medication, how
18 he felt about it. We always ask if people are suicidal or not,
19 if they are hopeless or helpless and questions of that nature to
20 find out where their mind is at when they come in so we'll know
21 what their needs are as far as being watched or celled alone or
22 medicated or whatnot.
23 Q. What did you find out from talking to him?
24 A. When I talked with him, he was pretty upset, but he was
25 calm at the same time. He answered the questions that were
617
1 relevant, and he wasn't suicidal. He felt -- he wasn't hopeless
2 or helpless, he was more concerned about his family actually
3 than himself, you know. He wasn't going to do any harm to
4 anybody or himself. He didn't need medication, you know, he
5 knew he was there for a study.
6 Q. And was he cooperative with the staff?
7 A. As far as I know, no trouble at all.
8 Q. Any disciplinary problems that you're aware of or
9 writeups, infractions?
10 A. No writeups, no what they call incident reports, nothing
11 like that.
12 Q. Okay. An incident report would be something that,
13 whether it's a crime or not, it's some misbehavior took place in
14 the institution and an incident report would be generated and
15 put what is called a jacket, is that correct?
16 A. A jack?
17 Q. A jacket or his case file?
18 A. Yeah, it goes on -- yeah. An incident report, yes, is
19 against the institution rules and regulations, like being in the
20 wrong place at the wrong time or not following an order or
21 something like that, and he didn't get any that I know of while
22 he was there.
23 MR. LAUGHRUN: Thank you, Ms. Wilson. That's all, Your
24 Honor.
25 THE COURT: Cross?
618
1 MR. WALKER: No questions, Judge.
2 THE COURT: Thank you, ma'am, come down. Call your next
3 witness.
4 MR. LAUGHRUN: May we approach the bench?
5 THE COURT: Yes, sir.
6 (Bench conference not recorded.)
7 THE COURT: Members of the jury, we are going to give
8 you an early lunch period and ask you to come back, you're going
9 to have a little bit more time than you need on a day like this,
10 I wish the sun were shining for you, say 2:00 o'clock this
11 afternoon, please. Do not discuss the case among yourselves or
12 with anyone outside the courtroom. We'll see you at 2:00
13 o'clock.
14 (The jury left the courtroom.)
15 THE COURT: All right, Mr. Laughrun, you had something
16 this morning that you wanted to put on the record and I asked
17 you to wait until we had a break. You can do that now.
18 MR. LAUGHRUN: Judge, a couple things, I guess if I
19 could do it backwards. We had wanted to ask Dr. Sally Johnson
20 about her -- some of her diagnosis about Mr. Barnette when he
21 was up there. She has informed me and Mr. Conrad that she feels
22 an ethical dilemma about that. I fully respect that. I think
23 she is, as Your Honor knows and for the record, she's the one
24 that was asked to examine Mr. Kaczinski out in Sacramento,
25 California, just got back from doing that. So I think she is
619
1 eminently qualified in this area and respect that. We were
2 going to ask her about that. We did not, due to Mr. Conrad's
3 objection about that. I guess for the record we would like to
4 offer her report sealed for appellate purposes if it gets that
5 way so that the Court of Appeals or whoever could look at it. I
6 believe the government made an objection at the bench to us
7 going into that, is that a fair statement, Bob?
8 MR. CONRAD: (Nods head.)
9 MR. LAUGHRUN: We wanted to ask about that but did not
10 based on our discussion. We would have asked for her to testify
11 to her diagnosis in this report, if Your Honor please.
12 THE COURT: The Clerk will place that under seal.
13 MR. LAUGHRUN: I'm going to mark it for the record as 58
14 for us, Judge.
15 THE COURT: Anything else?
16 MR. CONRAD: Your Honor, if I could for the record
17 indicate that at a side-bar, I voiced an objection on the basis
18 that this court ordered the Butner examination for the purpose
19 of determining competency and insanity at the time of the
20 offense. Dr. Johnson indicated to me and I believe she later
21 indicated to Mr. Laughrun that she feels ethics don't permit her
22 to testify at a sentencing hearing when she's been given a
23 limited order by the Court to determine competency and
24 reliability at the time of the offense. I then asked
25 Mr. Laughrun what he was going to go into, and he showed me a
620
1 list of things that dealt with not the diagnosis for purposes of
2 competence and reliability, but factual things that occurred at
3 the institution and I indicated that I had no objection to that
4 line of inquiry.
5 THE COURT: Thank you, sir. Was there something else,
6 though, Mr. Laughrun, you wanted to put on the record this
7 morning?
8 MR. LAUGHRUN: Judge, there was about Ms. Cooper.
9 Yesterday when Mr. Williams asked Ms. Cooper what effect, and
10 you can correct me if I'm wrong, what effect did your mother's
11 death have on you and the family, and the answer was going to be
12 a proffer that would be she was going to seek or had sought
13 treatment, had a nervous breakdown, was hospitalized and sought
14 continuing counseling, et cetera. We were going to offer that.
15 Your Honor sustained an objection to that, and that was all that
16 was discussed at the bench conference.
17 THE COURT: Anything else?
18 MR. CONRAD: Your Honor, if I could clarify the record
19 on that question, I asked Mr. Huseby earlier on today to pull up
20 that question and the objection, and what the question was, and
21 Mr. Huseby, do you have it available right now?
22 THE COURT REPORTER: It will only take a second to get
23 it.
24 MR. CONRAD: Your Honor, could I ask Mr. Huseby to read
25 the question and the objection and the Court's ruling?
621
1 THE COURT REPORTER: The questions were, how are you
2 related to Sonia Cooper? I'm her sister, younger sister. And
3 Mark is? Answer, my nephew. Question, your nephew. Did the --
4 was the death of Pearl Cooper, did that have more effect on you
5 than any of the other sisters? There was an objection, and the
6 Court sustained the objection.
7 MR. CONRAD: Just for the record.
8 THE COURT: All right, thank you, sir. Anything else?
9 MR. WILLIAMS: Well, we would like the record to
10 reflect, Your Honor, that we would have intended to go further
11 and ask her about that incident, that is, the death of her
12 father. We would have asked to go into it, that she actually
13 saw her mother's body and the effect it had on her, that she had
14 a nervous breakdown, she was in therapy, and we would have asked
15 to go into that. She is present in the courtroom at this time,
16 but we would have intended to go into that and proffered that as
17 part of the family's life and experience with regard to violence
18 in the family. So that's what we would have intended, that's
19 the proffer for the record. I assume the government still
20 objects.
21 THE COURT: All right, sir, anything else from your
22 side?
23 MR. CONRAD: No, sir.
24 THE COURT: Anything else at all right now?
25 MR. LAUGHRUN: No, sir.
622
1 THE COURT: You're going to go through that time line, I
2 assume, during lunch period so we will be ready either to put it
3 in or not. Do we need to come back in a few minutes before 2:00
4 o'clock to talk about it?
5 MR. LAUGHRUN: That's fine.
6 THE COURT: We do? I say, do we need to come in a few
7 minutes before 2:00 o'clock to talk about it?
8 MR. CONRAD: That would probably be a good idea, 1:50.
9 MR. WILLIAMS: 1:45, I would recommend to the Court.
10 THE COURT: 1:45, okay, we'll see you at 1:45.
11 (Lunch recess.)
12 THE COURT: Okay, gentlemen.
13 MR. LAUGHRUN: Judge, thank you for the break. We have
14 met. Mr. Conrad and I briefly spoke. I don't think they have
15 any objection to the time line being offered. What we are going
16 to do is put a witness up for that, identify what was involved
17 with it tomorrow Mark because we have got our experts here today
18 and don't want to delay.
19 MR. WILLIAMS: Two of them.
20 MR. LAUGHRUN: Two of our experts are here. We also,
21 Judge, have provided to Mr. Conrad today after some discussion
22 yesterday, one of our witnesses wasn't coming in until tonight.
23 He came in today at noon and delivered the government documents,
24 articles that he relied on that are about 2 inches tall, and
25 they have got that information. Mr. Conrad wanted it, some
623
1 communications snafu or whatever, so he came in early, brought
2 them today.
3 THE COURT: First thing we are going to have is the time
4 line, the time line is the first thing, right?
5 MR. LAUGHRUN: No, sir, we are not going to put that in
6 until tomorrow.
7 THE COURT: Oh, tomorrow?
8 MR. LAUGHRUN: Yes, sir.
9 THE COURT: Okay, all right. So the first thing you're
10 going to have is a witness?
11 MR. LAUGHRUN: We have two short witnesses and we will
12 start with our experts, Judge, and we're ready to go.
13 MR. CONRAD: Judge, for the record, we don't object to
14 it coming in. I don't know that a witness has to testify to
15 bring it in. We think it's inaccurate to some degree, but we
16 would rather argue it than -- we'd rather argue the inaccuracies
17 than object to the admission.
18 THE COURT: Why do you want a witness necessarily?
19 MR. LAUGHRUN: Well, I think the witness has to go
20 through and tell where they got that information, how it fits
21 into the scheme. It won't be very long, and we'll do that
22 tomorrow, we will be prepared to do that tomorrow.
23 THE COURT: Well, we told the jury 2:00 o'clock, so I
24 don't guess we can call them back just yet. Are they all back
25 there, Sammy?
624
1 THE MARSHAL: Yes, sir, they are all here.
2 MR. WILLIAMS: May I step to the back of the courtroom,
3 Your Honor?
4 THE COURT: Are you ready to go if the jury is here?
5 MR. WILLIAMS: Yes, sir.
6 THE CLERK: Let me give them these, Judge, before they
7 come out.
8 THE COURT: Call the jury.
9 (The jury returned to the courtroom.)
10 THE COURT: Members of the jury, appreciate you taking
11 an early lunch break. I know we said 2:00 o'clock, but since
12 y'all were back, we thought we may as well get started, might
13 get you away ten minutes early.
14 All right, Mr. Laughrun, are you ready?
15 MR. LAUGHRUN: We call deputy Tony Harrison, if Your
16 Honor please.
17 TONY HARRISON,
18 being first duly sworn, was examined and testified as follows:
19 DIRECT EXAMINATION
20 BY MR. LAUGHRUN:
21 Q. Would you state your name for the Court, please, sir?
22 A. Tony Harrison.
23 Q. Mr. Harrison, by whom are you employed, sir?
24 A. Mecklenburg County Sheriff's Department.
25 Q. What do you do for the sheriff's department,
625
1 Mr. Harrison?
2 A. Correctional officer there.
3 Q. How long have you been there, sir?
4 A. I've been there approximately almost two years now, sir.
5 Q. What do your duties entail as a correctional officer?
6 A. Correctional officer, we interact with inmates, we
7 control the populations inside the pods.
8 Q. And when you say the pods, relate to the jury what
9 that's like, what's the setup there?
10 A. The setup is it consists of about 55 male inmates, and
11 basically what I do is I control the pod. I'm locked in with
12 the inmates, and we're responsible for security and we're
13 responsible for interacting with the mates, feeding, locking
14 down at night, things of that nature.
15 Q. And I take it you don't wear a weapon when you're in the
16 pod, is that a fair statement?
17 A. That's correct.
18 Q. You are in uniform?
19 A. Yes.
20 Q. And it has the star, the patch deputy sheriff, is that
21 correct?
22 A. That's correct.
23 Q. Mr. Harrison do you know Aquilia Mark Barnette?
24 A. Yes, sir, I do.
25 Q. And you see him at the jail on a regular basis?
626
1 A. Yes, sir, I do.
2 Q. Has he been in your pod before?
3 A. Yes, sir, he has.
4 Q. How many times have you seen him since he's been in
5 custody for the last year and a half?
6 A. I've had -- I've worked with Mr. Barnette now for maybe
7 once inside there since I've been there.
8 Q. Have you ever known him to have any writeups,
9 infractions or anything, any disciplinary problems at all?
10 A. No, not to my knowledge.
11 Q. Has he ever given you a problem at all?
12 A. Never.
13 Q. Ever heard anybody else at the jail talk about him
14 having any problems?
15 A. No.
16 Q. And that's a secure, locked facility, is that right?
17 A. Yes, it is, sir.
18 MR. LAUGHRUN: Thank you, Deputy Harrison, no further
19 questions. Wait a minute, Mr. Harrison, hold on a second.
20 THE COURT: Anything from the government?
21 MR. CONRAD: No, sir.
22 THE COURT: Thank you, sir, step down. Call your next
23 witness.
24 MR. LAUGHRUN: We would call Ricky Paylor, if Your Honor
25 please.
627
1 RICKY PAYLOR,
2 being first duly sworn, was examined and testified as follows:
3 DIRECT EXAMINATION
4 BY MR. LAUGHRUN:
5 Q. State your name for the Court, please, sir.
6 A. Ricky Paylor.
7 Q. Mr. Paylor, by whom are you employed, sir?
8 A. The federal correctional institute of Butner, North
9 Carolina.
10 Q. What is FCI Butner?
11 A. It's a medium security prison.
12 Q. By medium security -- I'm sorry, go ahead.
13 A. It's a medium security prison with a psychiatric
14 hospital.
15 Q. There is also a camp that's separate from Butner, is
16 that correct?
17 A. Yes, it is, but would you talk just a bit louder,
18 please?
19 Q. Sure, I'm sorry. There is also a camp that's part of
20 FCI Butner, is that correct?
21 A. That's correct.
22 Q. When you say medium custody, that affects the security
23 level, is that a fair statement?
24 A. That's a fair statement.
25 Q. Medium being a 3 or 4 level institution?
628
1 A. Yes.
2 Q. Maximum would be a level 6 institution, is that correct?
3 A. Yes.
4 Q. Such as Atlanta?
5 A. Yes.
6 Q. Marion, Illinois?
7 A. Marion, Illinois yes.
8 Q. How long have you worked for the FCI, sir?
9 A. Eight years plus.
10 Q. And what is your job entitlement at Butner?
11 A. I'm a recreational therapist.
12 Q. How long have you been doing that at FCI Butner?
13 A. For the eight years that I've been there.
14 Q. Do you know Aquilia Mark Barnette?
15 A. Yes, I am familiar with him.
16 Q. Did you see him when he was at Butner in November and
17 December of '97?
18 A. I did.
19 Q. What was your nature to see him, Mr. Paylor?
20 A. Well, part of my duties as a recreational therapist is
21 to evaluate people as they are about to be released from
22 seclusion, and that's called a recreation pass. So I was
23 instructed by his doctors to take him out on a recreation pass.
24 Q. Tell us about that, what happened?
25 A. What I do, I give an orientation to the hospital, also
629
1 give an orientation to the compound itself, and then I observe
2 him as he participate in the gymnasium facility.
3 Q. Any problems with his interaction with other inmates?
4 A. None whatsoever.
5 Q. Any aggressive or fighting type behavior?
6 A. None at all.
7 Q. Verbal confrontations?
8 A. None at all.
9 Q. Temper tantrums?
10 A. None at all.
11 Q. And as a result of him being -- went through the program
12 from the seclusion end, was he later moved to a less secure
13 setting?
14 A. Yes, he was.
15 Q. And did he earn that?
16 A. Yes.
17 Q. How did he earn that?
18 A. Well, when I take people out on recreation pass, if I
19 identify any negative type behaviors and so forth, I report that
20 back to his doctors and his doctors will make a decision on
21 whether he should be let out of seclusion, or whether he should
22 remain on recreation pass until we can kind of work through the
23 difficulties that he was having.
24 Q. And if he had acted out in any way, he would have stayed
25 in seclusion, is that a fair statement?
630
1 A. That's a fair statement.
2 MR. LAUGHRUN: Thank you, Judge Potter.
3 MR. CONRAD: No questions.
4 THE COURT: Thank you, sir, you may come down,
5 appreciate it. Call your next witness.
6 MR. LAUGHRUN: Your Honor, may he and Ms. Wilson and
7 Dr. Johnson be excused to go back to Butner?
8 THE COURT: Yes.
9 THE COURT: No objection from the government?
10 MR. CONRAD: No, sir.
11 MR. LAUGHRUN: Your Honor, we'd call Dr. Faye Sultan.
12 THE CLERK: Mr. Laughrun, would you talk a little
13 louder, please, I'm having problems hearing you. I'm not
14 getting the names you are calling. Thank you.
15 MR. LAUGHRUN: I'm sorry, Sammy. We'd call Dr. Faye
16 Sultan, if Your Honor please.
17 THE COURT: Thank you.
18 FAYE ELLEN SULTAN,
19 being first duly sworn, was examined and testified as follows:
20 DIRECT EXAMINATION
21 BY MR. LAUGHRUN:
22 Q. Would you state your name for the Court, Dr. Sultan?
23 A. Faye Ellen Sultan.
24 Q. Dr. Sultan, by whom are you employed, ma'am?
25 A. I'm self-employed. I'm the director of University
631
1 Psychological Associates, a psychology practice in Charlotte.
2 Q. And what is your background and education?
3 A. I have a doctorate in clinical psychology which I
4 received from the University of Georgia in Athens, Georgia in
5 1982. I did my internship, we have a one-year required
6 pre-doctoral internship, at the university of North Carolina at
7 Chapel Hill in the department of psychiatry in the school of
8 medicine.
9 Q. And how long have you been a practicing psychologist in
10 the State of North Carolina?
11 A. I received my temporary license to practice in 1982. At
12 that time, psychiatrists had two years of required supervision
13 after you receive your doctorate, and so my permanent license
14 was awarded in 1984.
15 Q. And you have been practicing here in North Carolina
16 since then?
17 A. Yes, I am.
18 Q. Have you testified in courts before?
19 A. Yes, I have.
20 Q. For the defense and for the prosecution?
21 A. Yes, both.
22 Q. And have you been declared an expert in the past?
23 A. Yes, I have.
24 Q. What is your area of expertise?
25 A. My area of expertise is in the evaluation and treatment
632
1 of both victims and perpetrators of various kinds of abuse,
2 physical abuse, sexual abuse, emotional abuse.
3 Q. Do have you a specialty in domestic violence?
4 A. I do.
5 Q. And you have testified in State Courts about domestic
6 violence in the past?
7 A. Yes, I have.
8 Q. Have you been qualified an expert in those proceedings?
9 A. Yes, I have.
10 Q. And you have also testified out of state before, is that
11 correct?
12 A. I'm sorry, I didn't hear you.
13 Q. You testified in State Court on domestic violence
14 related issues?
15 A. (No response.)
16 Q. Have you testified in State Court as an expert in
17 domestic violence?
18 A. Yes, I have.
19 MR. LAUGHRUN: Your Honor, we would ask the Court to
20 accept her as an expert.
21 MR. CONRAD: An expert in what?
22 MR. LAUGHRUN: An expert in domestic violence and a
23 licensed psychologist here. Judge, I think her area of
24 expertise is the assessment and treatment of victims and
25 perpetrators of the perpetrator of domestic abuse, if Your Honor
633
1 please.
2 THE COURT: The Court will so accept her.
3 BY MR. LAUGHRUN:
4 Q. Dr. Sultan, do you know Aquilia Marcivicci Barnette?
5 A. Yes, I do.
6 Q. How do you know him, Dr. Sultan?
7 A. In June of 1997, I received a call from Mr. Paul
8 Williams.
9 THE COURT: Excuse me, if you sit back a little bit or
10 else push that, that's good.
11 THE WITNESS: Absolutely.
12 THE COURT: If you say a P, that thing is going to pop
13 on you.
14 THE WITNESS: Okay. I received a call from
15 Mr. Williams, one of the attorneys for Mr. Barnette, asking that
16 I conduct a psychological evaluation of him. Since that time, I
17 have conducted such an evaluation along with a master's level
18 psychologist in my practice.
19 BY MR. LAUGHRUN:
20 Q. And who would that be?
21 A. Ruth Kappius.
22 Q. And I believe she has an M.A. Degree, is that correct?
23 A. She does, she has a Master's Degree in clinical
24 psychology.
25 Q. And she works with you at University Psychological, is
634
1 that correct?
2 A. Yes, she does.
3 Q. How many times, Dr. Sultan, have you visited with the
4 defendant?
5 A. Ms. Kappius visited with Mr. Barnette on two occasions,
6 and I met with him for three separate clinical interviews on the
7 7th of September of 1997, the 13th of September and the 28th of
8 December.
9 Q. And approximately how many total hours did you spend in
10 your evaluation?
11 A. We spent with him a total of probably 14 hours.
12 Q. In addition to speaking with Mr. Barnette directly, did
13 you review any materials before you prepared that diagnosis in
14 this case?
15 A. I did.
16 Q. What, if any, materials if you could just give us a list
17 of what all you relied on in forming your --
18 A. I can. It's a rather long list. I reviewed the
19 psychiatric evaluation of Dr. Sally Johnson from the federal
20 correctional institution at Butner. That evaluation was dated
21 January 8th, 1998. I received a psychological psychiatric
22 report from Dr. Seymore Halleck, a psychiatrist who evaluated
23 Mr. Barnette. That report is dated December 30th, 1997. I
24 reviewed a psychological psychiatric report prepared by a
25 psychologist by the name of Dr. Scott Duncan and a psychiatrist
635
1 by the name of Dr. William Grant.
2 Q. Do you understand, Dr. Sultan, that they work for the
3 Bureau of Prisons?
4 A. Yes, I did understand that. The date of that evaluation
5 report is the 29th of January, 1998. I reviewed the results of
6 the psychological tests that were performed by Ms. Kappius with
7 Mr. Barnette. I reviewed portions of the trial transcript from
8 the 1994 trial that had to do with a Ms. Alesha Chambers and
9 allegations that had been made about Mr. Barnette's conduct
10 towards her.
11 I reviewed drawings done by Mr. Barnette, medical
12 records that involved Mr. Barnette and his family, employment
13 records involving Mr. Barnette and his family, a transcript of a
14 confession made by Mr. Barnette to the police, educational
15 records for Mr. Barnette, a memo and some psychological testing
16 data from a 1996 evaluation of Mr. Barnette by a psychologist
17 from North Carolina by the name of John Warren, a June 1994
18 psychological evaluation and some test results that was
19 conducted by a Charlotte psychologist by the name of Dr. William
20 Tyson.
21 I reviewed a life line of Mr. Barnette's life that was
22 prepared by a member of the defense team, a genogram describing
23 the relationship among the family members in Mark Barnette's
24 family, a life history that was prepared detailing various
25 events that took place that were significant in Mr. Barnette's
636
1 life, a summary of his placement history. And there were a
2 large number of interviews that were summarized by Cindy
3 Maxwell, a member of the defense team, and I can list the
4 interviews that I reviewed.
5 Q. Numerous interviews, about 10 to 15?
6 A. Looks to me like about maybe 15 or 18 interviews.
7 Q. Dr. Sultan, is it standard practice for someone other
8 than yourself to do the actual testing, standardized tests, for
9 example, your associate that has a Master's Degree, is that
10 standard in the practice?
11 A. It is. There are a number of reasons for that. One of
12 the things that we know about psychological testing is that once
13 we have formed a relationship with a client, it is considered
14 clinically much better information if a strange person, a new
15 person does the psychological testing, because one element in
16 psychological testing is sort of the desire to please the
17 examiner. And so one of the ways that we can guard against that
18 being a distortion or creating a result that we would not
19 otherwise find is for us to have a separate person do the
20 psychological testing.
21 MR. LAUGHRUN: Approach the witness, Your Honor?
22 THE COURT: Yes, sir.
23 BY MR. LAUGHRUN:
24 Q. Dr. Sultan, I will ask you to look at Defendant's
25 Exhibit 57, and ask you if the items contained in Defendant's
637
1 Exhibit 57 are the matters that you relied on in Mr. Barnette's
2 evaluation, the life line, genogram, life history and artwork?
3 A. Yes, sir, these are four of the documents that I
4 reviewed as part of the basis for my opinion.
5 Q. In general terms, Dr. Sultan, what can you tell the jury
6 about domestic violence, how it starts, how it stops, what
7 causes it, in general terms, how does someone, in other words,
8 how does someone learn or what causes someone to be violent, if
9 you can tell us in general?
10 A. A pattern of domestic violence in an adult and among
11 adults is most of the time the result of a lifelong pattern of
12 learning from what the child experiences. Often when we talk to
13 perpetrators of domestic violence, when I talk to perpetrators
14 of domestic violence, what I'm learning about is that in their
15 early environment, what they saw was regular violence among and
16 between the adults in their lives from the time that they were
17 tiny, tiny children. Sometimes that involves the child, him or
18 herself, also being abused. But almost always it involves
19 witnessing adults using violence as a solution to problems that
20 come up in life.
21 What the research shows about perpetrators of domestic
22 violence is that they don't have any nonviolent conflict
23 resolution skills, that simply the answer to a problem is to hit
24 or to punch or to choke or to grab or to call names at or to
25 throw against a wall. In some situations, as in Mr. Barnette's
638
1 situation, that violence in the family has reached extreme
2 levels. And so in some perpetrators of domestic violence, there
3 is history of murder or extreme physical brutality.
4 In Mr. Barnette's case, he was exposed to adults being
5 killed, shot, murdered, from the time that he was a small
6 child. That is, as I have said, sometimes the life experience
7 of someone who ultimately becomes a perpetrator of domestic
8 violence. Adding to that exposure to violence specifically, and
9 maybe the fact that the perpetrator was him or herself abused as
10 a child, is very often factors that have to do with general
11 family instability, the fact that the child is not reared in a
12 consistent way by consistent adults, perhaps the child is moved
13 many times from home to home, perhaps the child switches schools
14 many times. In Mr. Barnette's case, both of those things are
15 true.
16 And so what we are talking about is a gradual pattern of
17 responding on the part of the perpetrator beginning from smaller
18 acts of violence, escalating to extreme acts of violence in some
19 cases where if intervention is not forced upon the person, often
20 the perpetrator is unable or unwilling to seek assistance for
21 himself or to stop the perpetuation of the violent acts.
22 Q. Would you say it's learned behavior?
23 A. Yes, I think the research shows that the majority of
24 violent behavior that's committed in a domestic situation is
25 very closely connected with what the child has seen and learned
639
1 in the environment.
2 Q. In this particular case, what can you tell the jury,
3 based upon what you gave them about how domestic violence
4 evolves, how does that fit into Mark's case?
5 A. In looking over the genogram, the diagram that shows
6 generations and how Mr. Barnette fits into his family pattern
7 extending back several generations, what we know about
8 Mr. Barnette is that violence, domestic violence was a part of
9 the life of every generation for many generations before him.
10 When Mr. Barnette was about a year old, perhaps a few months
11 older than that, one of the people who had some responsibility
12 in taking care of him and someone with whom he had a
13 relationship that is a close relationship was his maternal
14 grandmother, his mother's mother. At that point, Mr. Barnette's
15 biological mother was 14 or 15 years old, and so her mother was
16 very much involved in the rearing of this baby. She was
17 murdered.
18 Soon thereafter, the paternal grandmother dies under
19 suspicious circumstances. Along the way in Mr. Barnette's
20 childhood, a boyfriend of the mom is gunned down and disappears
21 from Mr. Barnette's life. So prior to him beginning to
22 perpetrate violent acts on his own, he is quite aware of adults
23 committing acts of violence against one another. In
24 Mr. Barnette's case, he, himself was the victim of some physical
25 brutality on the part of the man he believed to be his father,
640
1 Derrick Barnette. There is description in the record and from
2 various people who were involved in the Barnette family that
3 Mark Barnette was beaten with a belt for extended periods of
4 time, that he was beaten with a coat hanger, that there is an
5 occasion in which Mark Barnette was choked by his father, there
6 is description of Mark Barnette being frightened for his
7 physical safety in the presence of his father. And so we begin
8 early on a pattern of violence.
9 A very significant factor for Mr. Barnette, Mark
10 Barnette, was the violence that he actually witnessed between
11 the people that he thought were his parents, Derrick Barnette
12 and his mother, Sonia Barnette. On more than one occasion, Mark
13 Barnette was in a position of intervening in a physical
14 altercation between the adults. Mark Barnette witnessed Derrick
15 Barnette hit his mother in the head with a hammer. He witnessed
16 frequent episodes of physical scuffles, hitting, slapping, heard
17 them screaming obscenities at one another and name calling,
18 there were many allegations of infidelity that those two adults
19 made of each other, and those are the building blocks, the
20 foundation of Mr. Barnette's understanding of what relationship
21 between man and woman is about.
22 Q. Are you familiar, Dr. Sultan, with the allegations of
23 Mark's domestic violence against Crystal Dennis, Natasha Heard
24 and Alesha Chambers?
25 A. Yes, I am.
641
1 Q. And eventually Robin Williams?
2 A. Yes.
3 Q. How does that fit into the criteria you have given to
4 the jury?
5 A. Mark Barnette's history is unfortunately a very, very
6 common one, at least in the beginning of it. What happens for
7 young men who are going to become perpetrators of domestic
8 violence is that often by adolescence, they have a pattern of
9 over control in their relationships with women, cursing, yelling
10 at, attempting to restrict the movements of the young woman, of
11 the girls in some of those cases to begin with. Over time, the
12 level of actual physical aggression becomes increasingly
13 severe. And as I said earlier, without forced intervention
14 often, the pattern escalates and escalates.
15 In Mr. Barnette's case, we go from earlier experiences
16 of cursing and yelling and screaming, demonstrations of jealousy
17 that are primarily verbal, to beating and choking, physically
18 restraining the young women, forced sexual encounters with girls
19 and women who were his girlfriends, so that nonconsensual sexual
20 activity becomes a part of the violence. It is in domestic
21 violence terms a way to dominate the woman. And as Mr. Barnette
22 progresses in age, although he is still quite a young man, his
23 violence towards women escalates and escalates and eventually is
24 without control.
25 Q. In examining the record, were there any other acts of
642
1 violence that you are aware of that were not somehow involved
2 with a domestic situation?
3 A. In my reading of the record, in each act of violence
4 that Mr. Barnette was involved, there is some linkage to a
5 relationship with a girl or with a woman with whom he is
6 intimately involved. So there may be external people involved,
7 for example, the children of one girlfriend or that cousin or
8 someone who knew a woman he was involved with, but always they
9 have to do with jealousy and rage or anger that he developed as
10 a part of a primary relationship.
11 Q. If domestic violence is caught early on, are treatment
12 programs available, for example, in Charlotte, is it the Nova
13 program, things like that?
14 MR. CONRAD: Objection to relevance.
15 THE COURT: Well, overruled.
16 BY MR. LAUGHRUN:
17 Q. If it is caught early on, are there programs available
18 that a domestic violence perpetrator can try to get help in?
19 A. Yes, there are treatment programs available.
20 Q. And if it's not caught early, what happens?
21 A. Well, what I know from my treatment of perpetrators of
22 domestic violence and their victims is that the violence
23 escalates almost always over time, so that as the abuser ages,
24 the acts of aggression becomes more and more severe.
25 Q. Are you familiar, Dr. Sultan, with what is called DSM-4?
643
1 A. I am.
2 Q. What is DSM-4?
3 A. DSM-4 is the fourth edition of the Diagnostic and
4 Statistical Manual of Mental Disorders. It's a great big book
5 and ius essentially the Bible, the diagnostic manual that
6 psychologists and psychiatrists and other mental health
7 professionals are told to use to choose their diagnoses out of.
8 And so I would say it is pretty much the standard text in mental
9 health for how we make differential diagnoses.
10 Q. As part of your differential diagnoses, would patterns
11 of suicide attempts be relevant?
12 A. Yes, they might be relevant in a number of ways.
13 Q. And would they be relevant in Mark's case?
14 A. Yes.
15 Q. And why is that, how would that be relevant?
16 A. Well, depending upon the seriousness of the suicide
17 attempt versus whether the suicide attempts are sort of more
18 gestures or threats rather than actually the doing of it in a
19 serious way, that fact, the fact of suicidality over time might
20 be representative of an aggressive illness or might be part of
21 something that we call a personality disorder. In
22 Mr. Barnette's case, it's representative of both diagnoses.
23 Q. And using DMS-4 and your background, were you able to
24 form an opinion of the diagnosis of Mr. Barnette?
25 A. Yes, I was.
644
1 Q. And what would that opinion be, Dr. Sultan?
2 A. There are a couple of diagnostic categories that
3 Mr. Barnette falls into. One of them as I mentioned earlier is
4 a depression, what is known as a mood disorder. Mr. Barnette
5 has had periods in his life in which he has become what we think
6 of as clinically depressed, feelings of hopelessness and
7 despair, frequent thoughts of suicide, a lack of energy,
8 judgment being affected by the real pessimism that goes along
9 with depression, trouble with sleep, some agitation. In
10 Mr. Barnette's case, he experiences kind of irritability and
11 body agitation as part of his depression. I believe that at the
12 time of the offenses in question here, Mr. Barnette would be
13 described as suffering from a major depressive episode.
14 It's also true that there is a more enduring stable kind
15 of quality to what is wrong with Mr. Barnette. When we have a
16 pattern of personality characteristics that goes across time,
17 that really endures, kind of regardless of situation, regardless
18 of circumstances, that really distorts the person's ability to
19 live, that makes the way in which he or she lives socially
20 inappropriate or unacceptable to us in some way or causes that
21 person to come into the conflict with society, we might label
22 that as a personality disorder.
23 Mr. Barnette fits in the category of personality
24 disorder called borderline personality disorder. Now, he has
25 some traits of some other personality disorders, but I think
645
1 that he fits most closely with the diagnosis of borderline
2 personality disorder. You would describe this as an enduring
3 pattern of perceiving, relating to or thinking about the
4 environment and one's self that's exhibited in a large number of
5 situations, a wide range of situations. These traits seem to be
6 inflexible so that if the circumstance changes, the person
7 doesn't change.
8 One of the hallmarks of mental health is that we are
9 able to adapt to different circumstances. In Mr. Barnette's
10 case, his belief system and his way of relating in the world
11 endures regardless of the situation, and, in fact, he distorts
12 the situation to fit with his belief system rather than being
13 able to see the differences in various situations. And so, for
14 example, every woman is perceived as both someone he greatly
15 wants to love him and to love, but always, inevitably, the
16 person who will abandon him, who will abuse him, who will treat
17 him badly, the person who will not see him for the good person
18 that he is, the person who will take advantage of him. And so
19 there is kind of a predictable way of relating to people that
20 seems to be part of what is wrong with his personality rather
21 than, obviously, what could possibly be wrong with every woman
22 with whom he encounters.
23 The defining characteristics of borderline personality
24 disorder include these things: frantic efforts to avoid real or
25 imaged abandonment. In Mr. Barnette's case, he assumes every
646
1 situation inevitably results in his feeling abandoned.
2 Impulsivity in at least two areas of life, in Mr. Barnette's
3 case, he is quite impulsive in his sexual practices in the
4 number of sexual partners that he has had throughout his
5 adolescence and his adulthood and in his abuse of alcohol over
6 the years.
7 Recurrent suicidal behavior, gestures or threats, again,
8 there have been several of those varying in seriousness from
9 quite active suicidal intent to thoughts and threats that are
10 not seriously carried out. Something called affective
11 instability, that means that the person's mood, Mr. Barnette's
12 mood changes very quickly, seems to cycle from happy to sad back
13 and forth, he seems to respond very dramatically to situations
14 that other people would not perceive as really provocative of
15 any particular kind of emotion.
16 Another characteristic is inappropriate intense anger or
17 difficulty controlling anger. I think that's a fairly obvious
18 characteristic of Mr. Barnette. Another characteristic is
19 transient and what are called stress related paranoid thoughts.
20 In other words, in periods of stress, for Mr. Barnette
21 interpersonal relationships are always stressful, in periods of
22 stress, Mr. Barnette's thinking can become what we might all
23 call paranoid. He develops a belief that a woman is out to hurt
24 him and trying to get him and trying the take advantage of him.
25 The psychological testing bears this out as well. In
647
1 that testing, Mr. Barnette demonstrates that he is quite
2 distorted in the way that he perceives interpersonal
3 relationships, that he is both desperately needy, desperate for
4 the affection and the love of a woman and always perceiving her
5 as completely inadequate to meet his needs and as ultimately
6 failing him in some way. And I would say that those two
7 diagnoses capture for me what is the essence of what is wrong
8 with Mr. Barnette.
9 Q. Based on that, Dr. Salton, and your experience and
10 expertise, do you have an opinion satisfactory to yourself as to
11 whether or not, at the time of the incident with Mr. Allen and
12 Ms. Williams, that the defendant's capacity to appreciate the
13 wrongfulness of his conduct or conform to the requirements of
14 the law was impaired in some way, was somehow impaired?
15 A. I do.
16 Q. What is that opinion, Dr. Salton?
17 A. My opinion is at the time of the offenses in question,
18 Mr. Barnette was suffering from mental illness that would have
19 impaired his ability to reason logically and to control his
20 behavior in an appropriate way.
21 Q. And Dr. Sultan, do you have an opinion satisfactory to
22 yourself based upon your training and experience about how Mark
23 Barnette would do in prison for the rest of his life?
24 A. I do.
25 Q. What is that opinion?
648
1 A. In Dr. Johnson's report from the federal correctional
2 institute from Butner and the records that I reviewed from the
3 Mecklenburg County jail, Mr. Barnette within the jail or prison
4 environment apparently functions quite well. Actually during
5 the approximately 30 days he spent for his forensic recall
6 situation at Butner, his behavior was good enough to actually
7 earn his way out of a seclusion isolation setting into a general
8 interaction environment, kind of the in population environment
9 of that facility. Within the prison environment, within a
10 structured environment, Mr. Barnette functions very, very well,
11 behaves appropriately, has good social interactions with people,
12 occupies his time in productive ways.
13 What is interesting about that is during the one school
14 experience that Mr. Barnette had that had to do with a highly
15 structured environment that took place when he was in the fifth
16 grade, we see a dramatic change in his behavior and his school
17 performance as well. So again, there is evidence that in a
18 structured environment, Mr. Barnette does quite well.
19 MR. LAUGHRUN: Thank you, Dr. Salton, answer any
20 questions that Mr. Conrad or Mr. Walker have.
21 THE COURT: Cross?
22 MR. CONRAD: Thank you, Your Honor. May I approach,
23 Your Honor?
24 THE COURT: Yes, sir.
25 CROSS-EXAMINATION
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1 BY MR. CONRAD:
2 Q. Dr. Salton, let me hand you what has been marked for
3 identification as Government's Exhibit 68, and ask you if you
4 can identify that exhibit?
5 A. I can. This is a copy of my curriculum, my resume, and
6 it is dated October 19, 1996.
7 Q. And did you provide that to defense counsel in this
8 case?
9 A. I may have. Someone in my office may have as well.
10 Q. Okay. And in that CV, do you know what I mean when I
11 say CV?
12 A. I do.
13 Q. Did you list chapters and books that you contributed to
14 articles, both published and unpublished, and presentations that
15 you made to various groups in that CV?
16 A. Yes, I did. I'm not sure if the list is entirely up to
17 date, but at least as of October 19th of 1996, it is.
18 Q. Okay. Now, what was your dissertation on at the
19 University of Georgia?
20 A. My dissertation had to do with an alternative to a
21 long-term institution for chronically mentally handicapped
22 people. It was a treatment evaluation study of a program in
23 Raleigh that was an alternative to Dorothea Dix Hospital.
24 Q. Did you also at the University of Georgia do a lot of
25 sex research?
650
1 A. I did some sex research, yes, some research into female
2 sexual response. That was a part of the work that I did for my
3 Master's thesis, yes.
4 Q. And that sex research into female responses, did that
5 lead to articles in books as well as, or chapters in books as
6 well as articles that you did?
7 A. Yes, it did.
8 Q. And do a number of the articles listed in your CV and
9 chapters in books deal with that subject area?
10 A. Yes, they do.
11 Q. Did they involve research studies at the University of
12 Georgia with respect to undergraduate women at that university?
13 A. Most of the subjects in our research were not
14 undergraduate women.
15 Q. Do you recall writing in articles and in the chapters in
16 the books that you recruited subjects both in the Athens
17 community as well as undergraduates at the University of
18 Georgia?
19 A. Yes, that's correct.
20 Q. And you had these women engage in sexual activities over
21 a period of time, did you not?
22 A. No, I wouldn't describe their activities as sexual.
23 Q. Was it part of your study that you had women, both
24 undergraduates and members of the Athens community, engage in
25 particular types of sexual activity?
651
1 A. As I have just said, the treatment program that we were
2 testing was designed to see if we could improve the strength of
3 a muscle called the pubococcygeus. I wouldn't describe anything
4 that we asked the women to do as sexual in nature.
5 Q. Did you in that study require a certain amount of
6 foreplay and certain type of sexual experience?
7 A. Again, I'm not sure what you are referring to. Again,
8 it's been quite a long time that the women were working to
9 increase the strength of the pubococcygeus muscle.
10 Q. And did you have as part of that study the women fill
11 out a sexual arousal survey and they had to --
12 MR. LAUGHRUN: Objection to relevance.
13 THE COURT: Overruled.
14 BY MR. CONRAD:
15 Q. Did you as part of your study have the women fill out a
16 sexual arousal survey and need to get a particular score in
17 order to be a candidate for your study?
18 A. I don't recall that there was a particular score that
19 was a criteria for inclusion or exclusion.
20 Q. Nonetheless, that study plays a major part in your CV,
21 does it not, both in the number of articles that you published
22 concerning that subject matter as well as chapters in various
23 books?
24 A. No, sir, I wouldn't agree with that. My major professor
25 at the time, Diane Chambliss, was doing sex research. I think
652
1 that most of my publications have to do with offender adjustment
2 to prison, various treatment programs that have to do with
3 teaching people the interaction between early childhood abuse
4 and later violent crime. So I'm not able to characterize that
5 early sex research as the bulk of my work.
6 Q. I didn't mean to say bulk, but I said is it a major
7 contribution to your CV -- strike that.
8 Did you not publish a chapter in a book called, and I
9 don't know how to pronounce, pubococcygeal function and orgasm
10 in a normal population?
11 A. Yes.
12 Q. Is that the study that I just asked you about?
13 A. I think it is.
14 Q. Did you not publish a chapter in a book called sexual
15 functioning in women?
16 A. Yes, I did.
17 Q. Psychology of male and female homosexuality?
18 A. Yes, I did.
19 Q. And did you not publish various articles, one of which
20 is about pubococcygeal and female orgasm, a correlational study
21 with normal subjects?
22 A. Tell me what page you are looking at.
23 Q. Page 5 of your CV?
24 A. Yes, I did.
25 Q. And another article entitled affect of pubococcygeal
653
1 exercise on coital orgasm in women?
2 A. Yes, that's correct.
3 Q. Did you also list in your CV numerous articles related
4 to women in prison?
5 A. Yes, I did.
6 Q. Articles on marital intimacy?
7 A. Yes, that's correct.
8 Q. Articles on loneliness?
9 A. That's correct.
10 Q. Article in the feminist behaviorist newsletter?
11 A. Yes, I published an article there.
12 Q. Did you also include in your CV a presentation you made
13 called recognizing and assessing abuse as potential mitigation?
14 A. Yes, I did.
15 Q. And was that a presentation which you made to the North
16 Carolina Academy of Trial Lawyers?
17 A. Yes, it was.
18 Q. In May of 1990, seven years before you became involved
19 in the Barnette case?
20 A. That's correct.
21 Q. And was that a presentation to a group of lawyers at
22 Wrightsville Beach, North Carolina?
23 A. Yes, I believe it was.
24 Q. And do you know whether or not that organization permits
25 prosecutors to be members of the American Academy of Trial
654
1 Lawyers?
2 A. I do not.
3 Q. Would it surprise you to learn that prosecutors can't be
4 members of that organization?
5 MR. LAUGHRUN: Objection.
6 THE COURT: Overruled.
7 THE WITNESS: Actually, I haven't considered whether it
8 would surprise me or not.
9 MR. CONRAD:
10 Q. Now, in that presentation to the North Carolina Academy
11 of Trial Lawyers, what did you mean by potential mitigation?
12 A. One of the things that exists in the backgrounds of many
13 of the clients that I have evaluated and done research about has
14 to do with early abuse, childhood physical and sexual abuse. As
15 I understand, and this was named I'm sure by some attorney, as I
16 understand, mitigating factors are any factors that a jury or
17 judge needs to consider that may help explain or make more
18 understandable the behavior of the defendant. And so I was
19 talking about the need for attorneys and investigators and
20 mental health experts to explore the issues of childhood abuse
21 as part of working on presenting all of the material necessary
22 for a trial.
23 Q. Now, would you agree with me that a juror is the only
24 true mitigation specialist, would you agree with that statement?
25 A. I'm not sure I can agree with it. I'm not sure I
655
1 understand what you mean.
2 Q. Well, did you just now testify that mitigation is
3 whatever a jury would find to be in mitigation of the offense,
4 is that what you just said?
5 A. I think that some mitigating factors are specified by
6 statute so that they are described specifically and others are
7 considered by a jury, and it's the jury's decision about whether
8 or not those factors are mitigating.
9 Q. And your role in the process is to recognize and assess
10 those mitigation factors, is that correct?
11 A. My role in the process is to learn about the background
12 of the individual involved, to learn about the mental health
13 history of the person, about the social history, the emotional
14 environment, the physical environment in which the person grew,
15 and to describe what I know about the person. I don't make any
16 determination about whether any particular factor is mitigating
17 or not.
18 Q. Is it a fair statement that in the dozens and dozens of
19 capital cases that you have testified in, that you have never
20 failed to find the existence of mitigating factors?
21 A. As I have just said, I don't get to determine what a
22 mitigating factor is. What is also true is that in the even
23 more dozens and dozens of defendants that I have examined, often
24 there is nothing that I have to say that the defense attorneys
25 believe would be helpful for their defense and I'm not called to
656
1 trial.
2 Q. Did you also list in your CV a presentation you made to
3 the North Carolina Academy of Trial Lawyers called presenting
4 expert testimony, the expert's perspective?
5 A. I'm sure I did. I don't see it right here, but I'm sure
6 I did.
7 Q. In Greensboro, 1992?
8 A. Yes. Actually I think it's 1994.
9 Q. What was that presentation about?
10 A. That presentation was about my experience having
11 testified in many trials about the ways that experts are treated
12 in the courtroom and about what it's like to examine a defendant
13 and to present material about the results of your examination in
14 a courtroom.
15 Q. And did you also testify or -- make a presentation
16 concerning the task of mitigation specialists in assessing
17 post-traumatic stress disorder and childhood abuse issues to the
18 Center for Death Penalty Litigation, Inc.?
19 A. Yes, I made that presentation. It wasn't to the Center
20 for Death Penalty Litigation, Inc. The conference was sponsored
21 by that organization.
22 Q. And who is or what is the Center for Death Penalty
23 Litigation, Inc.?
24 A. The Center for Death Penalty Litigation is a privately
25 funded, I think also state funded organization that assists
657
1 attorneys and mitigation experts in working in capital trials.
2 Q. It assists defense attorneys and mitigation, so-called
3 experts in defending cases, it does not assist prosecutors, is
4 that correct?
5 A. Actually, I don't know that that is true. I don't know
6 that.
7 Q. You are not a member of that organization?
8 A. No.
9 Q. You just lecture at their meetings?
10 A. Occasionally, yes.
11 Q. Do you recall filing a report in this case?
12 A. I do.
13 Q. And did you indicate in that report that one of the
14 sources of your information was, quote, a mitigation expert, end
15 of quote, Cynthia Maxwell?
16 A. Yes.
17 Q. What did you mean by mitigation expert?
18 A. Ms. Maxwell was identified to me in that capacity in
19 this case.
20 Q. Are you aware that there is no such thing as a
21 mitigation expert in this court?
22 MR. LAUGHRUN: Objection.
23 THE COURT: Overruled.
24 THE WITNESS: I'm not sure what you mean.
25 BY MR. CONRAD:
658
1 Q. Are you aware that there's no such thing as a mitigation
2 expert in this court?
3 A. I'm aware that that's how Ms. Maxwell was identified to
4 me.
5 Q. Who identified her to you as such?
6 A. The defense team.
7 Q. And what did she do in terms of providing you with
8 information related to this case, is that what you previously
9 testified about, about the numbers of things you reviewed?
10 A. She provided some of those things to me and some of them
11 were data that I gathered.
12 Q. Now, I have asked you a number of questions about your
13 CV and I wanted the jury to hear the different types of things
14 that you listed on your CV, and they cover a broad range of
15 things from sex research at the University of Georgia to
16 presentations to the Center for Death Penalty Litigation, is
17 that correct?
18 A. Yes, my resume covers a broad variety of things.
19 Q. What publications have you provided that you haven't
20 listed, or what publications have you had that you haven't
21 listed on your CV?
22 A. Since the October 19th, 1996 version of this CV, I have
23 published a fiction book published by Doubleday.
24 Q. Now, in your listing of articles that you have written,
25 you included both published and unpublished articles, did you
659
1 not?
2 A. I think that the only unpublished article is my
3 dissertation.
4 Q. Listed in your CV as unpublished article?
5 A. Let me look and see.
6 Q. Page 8.
7 A. That is my undergraduate senior project listed.
8 Q. Right. Now, did you before you wrote a novel, did you
9 also write a book concerning the death penalty?
10 A. I wrote a book proposal concerning the death penalty.
11 Q. And is that listed in your CV?
12 A. No, it's not.
13 Q. And you submitted this CV to the defense attorneys for
14 filing in this case when?
15 A. I have no idea.
16 Q. Would it have been as late as January of this year?
17 A. I don't believe so.
18 Q. Now, in addition -- what is the name of the novel that
19 you have written that you did not list or your CV?
20 A. Over the Line.
21 Q. Is it about the death penalty in America?
22 A. In some ways, yes. It's mostly about the consequences
23 of child abuse, the connection between the torture and torment
24 that we expose children to and later criminal behavior. I would
25 say that pretty much describes what the basis of the novel is.
660
1 Q. The basis of the novel is about child abuse, not
2 necessarily the death penalty?
3 A. I think that both issues are in there, but you asked me
4 what the basis was.
5 Q. Right. Now, do you also currently -- and who has
6 published your novel?
7 A. Doubleday.
8 Q. And you also have a plan in place with Doubleday to
9 publish other novels of yours?
10 A. Doubleday bought two books in a series, and the second
11 book is written and will be in press sometime in the fall.
12 Q. And all of these novels, do they not, deal with the
13 death penalty and arise out of real life situations which you
14 have become involved in as a forensic psychologist?
15 A. The second book is quite different from the first. In
16 the second book, the character is working with the police as a
17 profiler of a serial killer. That book is not based on an
18 actual case at all.
19 Q. The first book is, the first book is a synthesis of
20 various cases that have you represented clients as you call them
21 in forensic psychologist settings, is that not true?
22 A. Yes.
23 Q. For instance, you have a character in that book called
24 Marsha Goodshoe, don't you?
25 A. No.
661
1 Q. Or a name similar to that?
2 A. There is a lawyer in there named Amy with somebody whose
3 last name is similar to that.
4 Q. And that is based in part on a district attorney in
5 Mecklenburg County, is it not?
6 A. No, actually it's not. I think what you are referring
7 to is an article in The Charlotte Observer, and, in fact, that
8 book was written well before my involvement in the case that
9 might have involved that person you are referring to.
10 Q. I wasn't referring to an article in The Charlotte
11 Observer, but since you bring that up, let me refer to it now.
12 MR. CONRAD: May I approach, Your Honor?
13 THE COURT: Yes, sir.
14 BY MR. CONRAD:
15 Q. Dr. Sultan, let me approach and hand you what has been
16 marked for identification as Government's Exhibit 69A, and ask
17 you if you can identify that?
18 A. I can.
19 Q. What is Government's Exhibit 69A?
20 A. This is the front page or an article on the front page
21 of the local section of The Charlotte Observer dated Thursday,
22 January 8, 1998.
23 Q. And the title of that article?
24 A. Local Author Stands Tall Against Death.
25 Q. And let me approach and hand to you what has been marked
662
1 for identification as Government's Exhibit 69B, and ask you if
2 that is not an exact copy of 69A except enlarged?
3 A. It is.
4 Q. Now, the local author they are referring to --
5 MR. CONRAD: Your Honor, I would move admission of
6 Government's Exhibit 69A.
7 MR. LAUGHRUN: Object to the relevance.
8 THE COURT: Well, you put your evidence in on rebuttal.
9 MR. CONRAD: I'm sorry.
10 MR. LAUGHRUN: Object to the relevance, Judge.
11 THE COURT: Overruled.
12 BY MR. CONRAD:
13 Q. The local author that is referred to in that article is
14 who?
15 A. Me.
16 Q. And you're referred to in that article as an author, not
17 a forensic psychologist, is that correct?
18 A. No, actually the very first line of the article refers
19 to me as a forensic psychologist.
20 Q. Actually, I meant in the title?
21 A. Yes, in the title I'm referred to as an author.
22 Q. Now, that story or that article is in part about your
23 novel, Over the Line, correct?
24 A. That's correct.
25 Q. And in that article, the columnist, who was it, Danny
663
1 Romine Powell, did she interview you for that article?
2 A. She did.
3 Q. And did she indicate that the Portia McTeague character
4 like Faye lives in Dilworth, enjoys eating at Pewter Rose, she
5 is a forensic psychologist, as passionately anti death penalty
6 as Faye herself?
7 A. Are you asking me if she wrote that?
8 Q. Yes.
9 A. Yes, she did.
10 Q. Do you agree with that characterization?
11 A. Well, I think I do, yes.
12 Q. You stand before this jury as a woman who is
13 passionately anti death penalty, correct?
14 MR. LAUGHRUN: Judge, objection.
15 THE COURT: Overruled.
16 THE WITNESS: No, sir, I sit before this jury as a
17 psychologist whose obligation and purpose is to present my
18 scientific findings and knowledge about the defendant.
19 BY MR. CONRAD:
20 Q. Your obligation and purpose is to present your findings
21 about the defendant?
22 A. That's correct.
23 Q. Your scientific findings?
24 A. That's correct.
25 Q. Now, in that article, you indicated that your upbringing
664
1 was violent and dysfunctional, did you not?
2 A. Yes, I did.
3 Q. And you indicated that there is not a dime's worth of
4 difference between you and any defendant you have testified
5 about?
6 A. That's the quote that's in there. I'm sure that that's
7 a piece of the sentence that I said.
8 Q. Was it accurate insofar as it is reflected in that
9 article?
10 A. It's accurate as far as it goes, yes.
11 Q. Dr. Sultan, have you ever fire bombed a building with
12 two people trapped inside yelling "Die, bitch, die"?
13 A. No, I have not.
14 Q. Have you ever bought two shotguns using a fake name and
15 saying you weren't a felon when you were a convicted felon?
16 A. No, I have not.
17 Q. Have you ever waited at an intersection in the dark for
18 a half hour with a sawed-off shotgun and killed the innocent
19 driver of the vehicle that happened to approach that
20 intersection, shooting him three times in the back?
21 A. No, I have not.
22 Q. And have you ever pulled someone by the hair down the
23 street next to her mother and shot her in front of her mother?
24 A. No, I have not.
25 Q. Despite your violent and dysfunctional background, you
665
1 have never done any of those things?
2 A. That's correct.
3 Q. Now, would you agree with me that objectivity is a goal
4 for a forensic psychologist?
5 A. I would.
6 Q. Would you agree with me that being passionately anti
7 death penalty is inconsistent with that objectivity?
8 A. I suppose it would depend upon what the judgment was I
9 was being asked to render. It's not my place or my position to
10 render an opinion about that decision. That is in this
11 situation the determination of the jury. It's my job simply to
12 present the information that I discover, the information that I
13 unearth.
14 Q. At the very least, would you agree with me that the
15 degree of bias someone has is something an honest communicator
16 would disclose up front to her audience?
17 A. As you have stated it, yes, I would agree with that.
18 Q. Did you disclose any of your death penalty literature
19 speaking engagements or newspaper articles in your CV or your
20 testimony on direct examination today?
21 A. Did I expose any of my death penalty articles --
22 Q. Did you disclose any of your death penalty literature,
23 the novels that you have written, the article that was in The
24 Charlotte Observer, did you disclose that up front to this jury
25 either in your CV or in your testimony on direct examination?
666
1 A. No, I didn't talk about those things.
2 Q. Do you consider yourself to be an anti death penalty
3 activist?
4 A. No, I don't think so.
5 Q. Are you aware of anyone in Charlotte who appears more
6 regularly than you, whether on radio, TV or in the newsprint,
7 campaigning against the death penalty?
8 A. I don't know that I have appeared campaigning against
9 the death penalty in any of those places.
10 Q. Did you appear on WBT radio, the Al Gardner Charlotte
11 morning news last week during the pendency of this trial?
12 A. I believe I did, yes.
13 Q. And was that -- what was that radio interview about?
14 A. I was talking about the interaction between childhood
15 events and later criminal conduct. That is actually the theme
16 that I discuss most often when I'm talking about clients that I
17 have examined. The clients that I have examined consistently
18 come from a background of extraordinary violence, they become
19 perpetrators of violence, and the connection between their
20 background and their later crimes is very significant to me.
21 Q. Actually, wasn't the whole theme of the radio interview
22 the fact that the State of Indiana was executing an inmate who
23 had murdered another inmate while in prison, wasn't the theme of
24 that radio interview?
25 A. Actually, I didn't hear the entire radio interview, I
667
1 don't have any idea what the theme of it was.
2 Q. Well, you heard well enough from Al Gardner to respond
3 to his questions, did you not?
4 A. Mr. Gardner's questions were about the connection
5 between childhood factors and violent behavior.
6 Q. Actually, he first questioned you about your former
7 client, Ricky Lee Sanderson, and described him to you, did he
8 not?
9 A. Yes, he did. I think that we were just a few days away
10 from Mr. Sanderson's execution.
11 Q. Did you describe Mr. Sanderson as someone who had
12 stabbed a 16-year-old to death, buried her in a shallow grave,
13 someone who was convicted of raping a 33-year-old and stabbing
14 her 82 times, raping a 26-year-old while the daughter slept in
15 the same bed, didn't he describe Ricky Lee Sanderson to you as
16 such?
17 A. Yes, I believe he did.
18 MR. LAUGHRUN: Objection to the relevance of this,
19 object to the relevance of all of this.
20 THE COURT: Overruled.
21 BY MR. CONRAD:
22 Q. And Dr. Sultan, in that interview didn't you express
23 your anti death penalty views?
24 A. Yes, I believe I did.
25 Q. In fact, you referred to it as murdering somebody in the
668
1 name of correcting murder, did you not?
2 A. Yes, I believe I did.
3 Q. You called it insane?
4 A. I don't recall if I did that, I may have.
5 Q. You may have, you just don't recall?
6 A. That's correct.
7 Q. And a forensic psychologist using terminology like
8 insane would stick in your mind, would it not?
9 A. Apparently, it did not.
10 Q. Do you recall saying, they think that the idea that we
11 think that sentencing somebody to die is a solution to the
12 escalating violence in our culture is insane, and it is insane,
13 and then the host saying to you, as a clinical psychologist, you
14 make the statement that it's insane in mass, and you say,
15 absolutely, do you recall that now?
16 A. I do. In fact, what we were talking about is that in
17 states --
18 Q. I'm just asking you whether you had --
19 MR. LAUGHRUN: Objection, she can explain her answer.
20 THE COURT: Just a minute, she hasn't answered the
21 question yet. Answer the question, Doctor.
22 BY MR. CONRAD:
23 Q. Do you recall -- my simple question to you is, do you
24 recall saying that now?
25 A. Yes, I do recall it.
669
1 Q. Thank you.
2 A. I wasn't finished.
3 Q. Did you also in that radio interview --
4 MR. LAUGHRUN: Judge, I object. She has a right to
5 explain her answer. This is not Perry Mason.
6 MR. CONRAD: Your Honor, she has a right to be
7 responsive to the question and she was and I'm moving on.
8 THE COURT: She answered the question. Do you need to
9 explain that, Doctor?
10 THE WITNESS: I do.
11 THE COURT: Okay.
12 THE WITNESS: What we were discussing is the fact that
13 in the states that have the highest rates of execution, there
14 continue to be the highest rates of murder, and that was the
15 foundation for the opinion that I was describing there.
16 BY MR. CONRAD:
17 Q. Well, isn't it a fact that the foundation for the
18 opinion that you were describing there is as follows: I just
19 got back from the United Kingdom, from England and Ireland,
20 where I was touring with my book, Over the Line, which is a
21 novel about the death penalty in the United States?
22 A. I'm sorry, did you ask me a question?
23 Q. Yes, I said isn't that the foundation for your statement
24 that the death penalty was insane?
25 A. I don't know that those are connected, but I did say
670
1 those things, yes.
2 Q. And previously here before this jury you said that your
3 book, Over the Line, was about child abuse, not necessarily the
4 death penalty?
5 A. I don't believe I said it wasn't about the death
6 penalty. You asked me what the central theme --
7 Q. It wasn't primarily about the death penalty?
8 A. That's correct.
9 Q. But on the radio interview, you say, I was touring with
10 my book, Over the Line, which is a novel about the death penalty
11 in the United States. Do you want to correct your earlier
12 response to this jury?
13 A. No, I don't.
14 Q. Did you disclose to this jury the fact that your travel
15 internationally to promote your book, Over the Line, which is a
16 novel about the death penalty in the United States?
17 A. No, I did not.
18 Q. In that morning news radio show, did you not indicate
19 that you had testified in dozens and dozens of death penalty
20 cases, and with respect to the juries, so far I've been pretty
21 disappointed, do you recall saying that?
22 A. Disappointed in? I'm not sure what the rest of that
23 sentence was.
24 Q. So far, I've been pretty disappointed, do you recall
25 saying that?
671
1 A. Yes.
2 Q. Now, earlier here today, you indicated to this jury that
3 you had testified for both the government and the defendant,
4 correct?
5 A. That's correct.
6 Q. But isn't it a fact that you have never testified for
7 the government in death penalty or capital cases?
8 A. That's correct.
9 Q. Are you familiar with the specialty guidelines for
10 forensic psychologists?
11 A. I am.
12 Q. Do you consider yourself to be a forensic psychologist
13 in addition to being a novelist?
14 A. Primarily I consider myself to be a clinical
15 psychologist.
16 Q. Do you consider yourself to be a forensic psychologist
17 as well?
18 A. Sometimes I function as one, yes.
19 Q. Are you familiar with the law and human behavior
20 journal?
21 A. Yes.
22 Q. And is that a journal that is relied upon in the field
23 of forensic psychology?
24 A. I think it is, yes.
25 Q. Are you familiar with the specialty guidelines published
672
1 in that journal?
2 A. Yes.
3 Q. Are you familiar with the ethical principles of
4 psychologists?
5 A. Yes.
6 Q. Are you guided by them?
7 A. Yes, I am.
8 Q. Do you know that the specialty guidelines for forensic
9 psychologists are meant to be consistent with the ethical
10 principles of psychologists?
11 A. Yes.
12 Q. Endorsed by the American Academy of Forensic Psychology?
13 A. Yes.
14 Q. Are you a member of that academy?
15 A. No, I'm not.
16 Q. Approved by the executive committee of the American
17 Psychology Laws of Society?
18 A. I am a member of that, yes.
19 Q. Would you agree with the statement that the specialty
20 guidelines for forensic psychologists provide an aspirational
21 model of desirable professional practice by psychologists within
22 any subdiscipline of psychology when they are engaged regularly
23 as experts and represent themselves as such in an activity
24 primarily intended to provide professional psychological
25 expertise to the judicial system?
673
1 A. Yes, I would agree with that.
2 Q. Would you agree with this statement in the forensic
3 specialty guidelines, forensic psychologists have an obligation
4 to provide services in a manner consistent with the highest
5 standards of their profession, they are responsible for their
6 own conduct and the conduct of those individuals under their
7 direct supervision?
8 A. Yes.
9 Q. Do you agree with this statement, forensic psychologists
10 recognize that their own personal values, moral beliefs or
11 personal and professional relationships with parties to a legal
12 proceeding may interfere with their ability to practice
13 competently?
14 A. Yes, I would.
15 Q. Under such circumstances, forensic psychologists are
16 obligated to decline participation or to limit their assistance
17 in a manner consistent with professional obligations?
18 A. I'm sorry, I didn't hear a question.
19 Q. The question is, do you agree with that statement?
20 A. Yes.
21 Q. Do you recognize at all any ethical issues involved in
22 purporting to offer objective forensic testimony on a subject
23 where your personal beliefs are publicly and passionately
24 onesided?
25 A. As I have said to you earlier, I'm not called upon in
674
1 this situation or in any other in a courtroom to make a
2 determination about the appropriateness of a life versus a death
3 sentence. My job is simply to present background material about
4 the client that I have been asked to evaluate and to make any
5 determinations of mental illness if they are appropriate.
6 Q. And to offer your opinion as you have earlier today on a
7 defendant's adjustment to prison and his behavior as being
8 caused by domestic violence in his past, those weren't just
9 background informations, you offered opinions on that, did you
10 not?
11 A. Yes, I did.
12 Q. And my question to you is, do you recognize the ethical
13 issue of not disclosing to people you rendered your opinion to
14 your passionate onesided view about the issue of the death
15 penalty, do you recognize no ethical issue there at all?
16 A. I think I am quite sensitive to the ethical issues
17 involved. I think that my public view about the death penalty
18 is quite well-known and not a secret.
19 Q. It may be a secret to this jury --
20 MR. LAUGHRUN: Objection.
21 THE COURT: Sustained.
22 BY MR. CONRAD:
23 Q. -- if you don't tell them that, would you agree with
24 that?
25 MR. LAUGHRUN: Objection to that.
675
1 THE COURT: Overruled.
2 BY MR. CONRAD:
3 Q. You may have a public persona that is known to be
4 passionately anti death penalty, but this body of people
5 listening to you does not know that unless you tell them that,
6 isn't that correct?
7 A. That's correct. It's also correct that I respond to
8 questions that I am asked. I don't get to direct what it is
9 that I speak about.
10 Q. Correct, but you provided your CV to your attorneys and
11 failed to mention any of your involvement in death penalty
12 related issues at all, correct?
13 A. No, sir, I don't think that could be true. You have
14 asked me about many things on my curriculum vitae that have to
15 do with issues involving the death penalty.
16 Q. But you didn't mention your novels?
17 A. No, sir, I didn't mention my novel.
18 Q. And you didn't mention the book prior to your novel that
19 didn't get published but was concerning the death penalty?
20 A. There was no book prior to my novel, there was a book
21 proposal.
22 Q. Correct.
23 A. And there wouldn't be an appropriate place on a
24 curriculum vitae for a proposal of any kind I don't believe.
25 Q. You get paid for your testimony today, do you not?
676
1 A. I expect to be, yes.
2 Q. And at what rate are you compensated?
3 A. I don't recall specifically, I think there is a standard
4 rate that was set by His Honor.
5 Q. You were called by Mr. Williams, and are you telling
6 this jury that there were no financial arrangements made between
7 you and Mr. Williams concerning the amount of money you would be
8 paid for your testimony today?
9 A. I'm sure there were arrangements made, yes.
10 Q. But you are telling the jury you don't know what those
11 arrangements are?
12 A. Not specifically, no.
13 Q. And in previous cases when you've testified in the
14 dozens and dozens of capital cases that you mentioned in the
15 article, you were paid for your services in those cases as well,
16 correct?
17 A. Sometimes, yes, sometimes, no.
18 Q. And you expect to be paid for your novel that you ghost
19 wrote with another author involving material taken from those
20 previous cases, correct?
21 A. I'm not sure if I understand your question.
22 Q. The characters in your novel come from your previous
23 cases?
24 A. The characters in my novel are a compilation of various
25 characters, people that I have worked with, yes.
677
1 Q. Now, Doctor, isn't it a fact that you have failed in the
2 past to recognize ethical issues relating to your practice?
3 A. I can think of one such example, yes.
4 Q. And what example was that?
5 A. In 1991, the state licensing board suggested that the
6 hiring of a former client as a part-time receptionist probably
7 was not the best thing to do.
8 Q. What is the North Carolina Board of Psychology?
9 A. The North Carolina Board of Psychology is the licensing
10 board that regulates the practice of psychology in the state.
11 Q. And have you ever been the subject of ethics complaints
12 filed with that board?
13 MR. LAUGHRUN: Objection.
14 THE COURT: Overruled.
15 THE WITNESS: I have, I just described one to you.
16 BY MR. CONRAD:
17 Q. Well, is there just one?
18 A. No.
19 Q. In fact, in October of 1995, isn't it a fact that
20 disciplinary action was taken against you with respect to your
21 testimony in the Betsy Kelly case?
22 A. No, sir. What is true is that the grievance that was
23 filed by another psychologist who worked for the Department of
24 Corrections, her name is Paula Clark, filed an ethics grievance
25 against Dr. Brad Fisher and myself about our testimony in a
678
1 civil hearing related to the Little Rascals case, and that
2 grievance remains open at this point.
3 Q. Well, actually Dr. Clark complained that you had told
4 her that you were doing an evaluation to earn money, is that
5 correct?
6 A. Yes, that's what she complained.
7 Q. And she indicated that you appeared to be involved in a
8 relationship with your client's attorneys for financial gain
9 and/or for personal reason?
10 A. Yes.
11 Q. And then on October 4th, 1995, the North Carolina
12 Psychology Board issued a reprimand letter to you, did they not?
13 A. No, they did not.
14 Q. Well, did that psychology board conclude that on or
15 about October 10th, you conducted an evaluation of an
16 individual, Ms. Kay, who is detained at North Carolina
17 Correctional Institute for Women, you testified in court on
18 October 19th at which time you stated that Ms. Kay, if
19 transferred to a housing unit outside the prison mental health
20 unit, quote, would almost immediately in such a rapid
21 deterioration in her psychological condition that Ms. Kay would
22 almost surely be psychotic within 24 or 36 hours, and you then
23 testified, it is my opinion that she may deteriorate to such a
24 point that her condition might be irreversible, it might be
25 permanent, didn't they say that in a letter to you dated
679
1 October 4th, 1995?
2 A. Didn't they say what, I'm sorry?
3 Q. What I just read?
4 A. Yes.
5 Q. They went on to say that earlier in your testimony, when
6 asked about diagnostic impressions, you state, the principal
7 symptoms that Ms. Kay presented, hers would all under the
8 category of a panic disorder diagnosis, it is my opinion,
9 however, that the panic disorder which certainly exists for
10 Ms. Kay is not a principle concern, it is not the primary
11 diagnosis to contend with at this point, I would give her a
12 borderline psychotic diagnosis and say at any point she is
13 probably going to be labeled schizophrenic?
14 A. Yes, that's what their letter says.
15 Q. And did they not conclude that the testimony is
16 problematic as follows: one, borderline psychotic is not a
17 diagnostic category; two, there is no evidence either in history
18 or in testing to support the diagnosis of schizophrenia; and
19 third, the implication you draw about the defendant's condition
20 as irreversible and permanent is unfounded?
21 A. Yes, that's what that letter says.
22 Q. And they told you that that conduct constituted
23 violations of the North Carolina Board of Psychology ethics
24 laws, did they not?
25 A. What they did was to ask if I wanted a hearing on the
680
1 issue, and as I said a moment ago, that issue remains open at
2 this point.
3 THE COURT: Doctor, can you sit back just a little bit?
4 That microphone pops whenever you say a P.
5 THE WITNESS: Absolutely.
6 BY MR. CONRAD:
7 Q. I didn't hear that, what was your response?
8 A. My response was that that ethics grievance remains open
9 and no disciplinary action has been taken of any kind.
10 Q. You deny them telling you that the above conduct
11 constitutes violations of principle 1(f), responsibility, and
12 principle 8(c), assessment techniques, of the ethical principles
13 of psychologists, you deny them telling you that?
14 A. No, I don't deny that they wrote that letter.
15 Q. Now, you also mentioned another reprimand that you
16 received from the North Carolina State Board of Examiners of
17 Practicing Psychologists on October 31st, 1991, correct?
18 A. That's correct.
19 Q. And that was an ethical reprimand?
20 A. Yes, it was.
21 Q. And it was for discontinuing therapy in order to hire a
22 patient?
23 A. I'm not sure about the exact wording, but yes, as I've
24 said, that was what their concern was.
25 Q. And the ethical violation that was found in that case is
681
1 exploitation of your client, correct?
2 A. Yes, I do believe that is the wording.
3 Q. Do you remember testifying in the State of Alabama v.
4 Martin case, your deposition being taken in that case?
5 A. Yes, I do. It was a telephone deposition taken in that
6 case.
7 Q. Do you remember testifying in that case and admitting
8 under oath to four ethical violations?
9 A. No, sir, what I remember is talking about the number of
10 grievances that had been filed.
11 Q. I see. Now, Dr. Sultan, did you disclose to this jury
12 by way of your CV or your direct testimony the fact that you had
13 been the subject of ethical reprimand by the North Carolina
14 Board of Psychologists?
15 A. No.
16 Q. Now, you indicated to this jury that the way you became
17 involved in this case was at the request of Paul Williams?
18 A. That's correct.
19 Q. The attorney seated at this table before, have you
20 worked with Mr. Williams in the past?
21 A. I have.
22 Q. And I believe you indicated that you met with the
23 defendant on how many occasions?
24 A. I met with him personally on three occasions and
25 Ms. Kappius with him on two or three occasions as well.
682
1 Q. When you met with him personally, how long were those
2 interviews, how long did those interviews last?
3 A. I will have to estimate. The first interview was
4 probably about two and a half or three hours.
5 Q. And when was the first interview?
6 A. The 7th of September of 1997. The second interview was
7 probably a bit longer than that, estimating by the number of
8 notes I took, and the third interview was probably --
9 Q. When was the second interview?
10 A. The 13th of September of 1997. And the third interview
11 was on the 28th of December of 1997.
12 Q. And I believe you also indicated that Ms. Kappius
13 interviewed the defendant on a number of occasions?
14 A. Yes.
15 Q. And the reason it was not unusual for someone else to
16 score tests was because sometimes it's better for a stranger to
17 do those tests because after you have established a relationship
18 with the defendant, the test results can be better if a stranger
19 does it?
20 A. You said score, what I said was administer.
21 Q. And that's what I -- I did not mean to use the wrong
22 terminology, I meant to use the terminology administer. Your
23 explanation to the jury as to why Ms. Kappius administered
24 administer the tests because sometimes it's better for a
25 stranger to do it?
683
1 A. Yes, that's correct.
2 Q. Isn't it a fact that Ms. Kappius had interviewed the
3 defendant on a number of occasions prior to you interviewing
4 him?
5 A. She met with him one time and began her testing on that
6 day.
7 Q. So it's not a question of it being better for a stranger
8 to do it, because you were equally a stranger the first time
9 that test could have been administered, correct?
10 A. (No response.)
11 Q. When was the test administered that you said was better
12 for Ms. Kappius to do because she was a stranger?
13 A. She began her psychological testing on the 20th of June.
14 Q. 1997?
15 A. That's correct.
16 Q. And that was the first time anybody would have met with
17 Mr. Barnette, correct?
18 A. That's correct.
19 Q. So you would have been equally a stranger as
20 Ms. Kappius?
21 A. Well, the psychological testing continued throughout the
22 evaluation procedure, and Ms. Kappius was identified as the
23 person who would conduct the psychological testing.
24 Q. So your earlier explanation to the jury as to why she
25 did it is not correct, I mean, she wasn't any more a stranger to
684
1 Mr. Barnette than you were?
2 A. No, I thought my explanation was precisely correct.
3 Ms. Kappius was identified as the person who would be
4 administering psychological testing and I was identified to
5 Mr. Barnette as the person who would be primarily conducting
6 interviews. That's exactly what I explained to the jury.
7 Q. I see. Now, in your report which you filed on
8 January 2nd, did you not indicate that all observations and
9 opinions offered here are to be considered preliminary and
10 subject to later modification?
11 A. Yes, I did.
12 Q. What did you mean by that?
13 A. What I meant is that I was still receiving documents
14 that I requested and that it's important to me for the diagnosis
15 or for any opinions to be based on as much information as
16 possible.
17 Q. How has your opinion changed since the report filed on
18 January 2nd?
19 A. I think the opinions that I offered in that January 2nd
20 report are all true. In addition to the diagnosis I discussed
21 there, I believe I testified earlier that Mr. Barnette fits the
22 category of borderline personality disorder.
23 Q. And did you -- when did you come up with that diagnosis?
24 A. Actually, having reviewed all of the government reports
25 and psychological evaluations, I quite agreed with them that a
685
1 personality disorder diagnosis was appropriate.
2 Q. So let me make sure I'm correct on this. As a result of
3 your 14 some hours of interview with the defendant, you did not
4 come up with a borderline personality disorder diagnosis in
5 January of 1998 but then did come up with such a disorder
6 diagnosis after you reviewed the government's expert report, is
7 that correct?
8 A. That's correct. I described all of the same
9 characteristics of borderline personality disorder within my
10 report, and so those were things that I was quite concerned with
11 and used to describe his way of functioning and the violence in
12 his history. And the borderline personality diagnosis fits all
13 of those judgements.
14 THE COURT: Excuse me, just a minute, we're going to
15 turn that microphone up just a bit. Try that.
16 BY MR. CONRAD:
17 Q. Dr. Sultan, isn't it a fact that this morning when this
18 jury was coming in to sit on this trial, you were interviewed on
19 national public radio?
20 A. No, sir, I wasn't interviewed this morning.
21 Q. Were you interviewed sometime earlier and that interview
22 was played on national public radio this morning?
23 A. I believe it was.
24 Q. And in that interview, I will ask you a question and
25 your lawyers can follow up on it if they want to, but I would
686
1 ask you to give me a yes or no answer, did you not say to the
2 person interviewing you in the interview that was played this
3 morning, if I am doing my job when I'm testifying in front of a
4 jury, by the time I'm finished, the jury is crying?
5 A. Yes, that's part of the sentence I said. What I said
6 after that is I know that the backgrounds of the individuals
7 that I am describing are terribly painful and difficult and that
8 it's difficult to hear what I'm saying. I went on to say I
9 don't like to hear what I'm saying. The things that we do to
10 children to destroy them are terrible, and the acts that they
11 perpetrate as a consequence of what we allow them to be exposed
12 to are terrible as well.
13 Q. Do you think it's the job of a forensic psychologist to
14 leave the jury crying?
15 A. What I think is the job of a forensic psychologist --
16 THE COURT: Just answer the question yes or no and then
17 you can explain.
18 THE WITNESS: No, not specifically. What I think is the
19 job of the forensic psychologist is to speak the truth of the
20 lives of the person that we are being asked to describe, and the
21 lives of the people that we're being asked to describe are often
22 quite, quite terrible.
23 MR. CONRAD: That's all I have, Your Honor.
24 THE COURT: Redirect?
25 REDIRECT EXAMINATION
687
1 BY MR. LAUGHRUN:
2 Q. Dr. Sultan, when you filed your report January 2nd 1998,
3 had you been provided any reports from the government?
4 A. No, I had not.
5 Q. And since that time, you have gotten a report from
6 Dr. Sally Johnson?
7 A. Yes, I have.
8 Q. What do you know about her professionally?
9 MR. CONRAD: Objection to the relevance.
10 MR. LAUGHRUN: Judge, they asked, they opened the door.
11 THE COURT: Overruled.
12 MR. CONRAD: I didn't ask anything about Dr. Sally
13 Johnson.
14 THE COURT: Overruled, go ahead.
15 BY MR. LAUGHRUN:
16 Q. What do you know about her professionally?
17 MR. CONRAD: Objection.
18 THE WITNESS: Am I to answer, Im sorry?
19 THE COURT: Objection overruled, you asked her -- what
20 is your question?
21 BY MR. LAUGHRUN:
22 Q. What do you know about Dr. Johnson professionally,
23 Dr. Sultan?
24 A. Dr. Johnson is a psychiatrist with an important position
25 at the federal correctional institution at Butner. She has
688
1 worked on many of the high profile cases in our country that
2 involve serious criminal behavior, and she enjoys an excellent
3 reputation.
4 Q. You reviewed her report?
5 A. Yes.
6 Q. And you reviewed Dr. Grant's report?
7 A. Yes, I have.
8 Q. Dr. Duncan's report?
9 A. That's the same report.
10 Q. You know they work for the Federal Bureau of Prisons in
11 Atlanta, Georgia?
12 A. Yes.
13 Q. Had you seen Dr. Mark Cunningham's report when you filed
14 your January 2nd report?
15 A. No, I had not.
16 Q. Had you seen Dr. Seymore Halleck's report?
17 A. No, I had not.
18 Q. Does your book, Dr. Sultan, Over the Line, have nothing
19 do with Mark Barnette at all?
20 A. No, it does not.
21 Q. Now, you answered a question of Mr. Conrad that you have
22 been employed in many cases by defense lawyers and never
23 testified, is that a fair statement?
24 A. Yes, that's a fair statement.
25 Q. Why would you not have testified in those cases, in
689
1 general?
2 MR. CONRAD: Object to the in general if she knows
3 specifically.
4 THE COURT: What was that question, Mr. Laughrun?
5 MR. LAUGHRUN: Judge, the government asked her --
6 THE COURT: Well, just ask what your question was.
7 BY MR. LAUGHRUN:
8 Q. Have you been employed, Dr. Sultan, you were asked by
9 Mr. Conrad that you stated you have testified in several
10 cases -- you were hired by the defense in several cases but
11 never testified, and my question to you is, why would that have
12 been?
13 MR. CONRAD: And my objection, Judge, if he is asking
14 about a particular case, she can answer that, but he is just
15 asking in general.
16 THE COURT: All right, sustained.
17 BY MR. LAUGHRUN:
18 Q. I take it sometimes, Dr. Sultan, your diagnosis hasn't
19 been helpful to the defense, is that a fair statement?
20 A. That's a fair statement, yes.
21 MR. LAUGHRUN: Thank you, Judge, that's all.
22 THE COURT: Thank you, Doctor, step down.
23 Members of the jury, we will take a recess at this
24 time. Do not discuss the case among yourselves while you are
25 out, please. Any exhibits that you have or notes, leave them on
690
1 your chair.
2 (The jury left the courtroom.)
3 MR. LAUGHRUN: Your Honor, with the government's
4 consent, may Dr. Sultan be excused?
5 THE COURT: Yes, sir, without objection from the
6 government.
7 MR. CONRAD: No objection.
8 THE COURT: All right, recess until 4:30 -- 3:30, excuse
9 me, 3:30.
10 (Brief recess.)
11 THE COURT: Ready for the next witness?
12 MR. WILLIAMS: We are ready Your Honor.
13 THE COURT: Okay, call the jury.
14 (The jury returned to the courtroom.)
15 THE COURT: Call your next witness.
16 MR. WILLIAMS: The defense calls Dr. Seymore Halleck, if
17 Your Honor please.
18 DR. SEYMORE HALLECK,
19 being first duly sworn, was examined and testified as follows:
20 DIRECT EXAMINATION.
21 BY MR. WILLIAMS:
22 Q. Don't get too close to that microphone, it starts
23 reverberating?
24 A. Okay.
25 Q. Tell the ladies and gentlemen of the jury your name,
691
1 please, sir?
2 A. My name is Seymore L. Halleck.
3 Q. And what is your profession sir?
4 A. I'm a psychiatrist.
5 Q. Are you a licensed medical doctor in the State of North
6 Carolina?
7 A. I am.
8 Q. How long have you been so licensed?
9 A. 25 years.
10 Q. And what is your current status?
11 A. My current status is am a professor of psychiatry at the
12 University of North Carolina Medical School although I'm
13 officially retired. I continue to teach at the University of
14 North Carolina Medical School and I continue to manage a journal
15 at that school, I also do a fair amount of legal consultation
16 which I do outside of the medical school.
17 Q. Will you tell the ladies and gentlemen of the jury your
18 past education, please.
19 A. Beginning with college education, I began in 1945 at the
20 University of Chicago, and I received a bachelor of philosophy
21 degree from that university in 1948. In 1950, I received a
22 bachelor of science degree from the University of Chicago in
23 anatomy, and I started medical school in 1948 at the University
24 of Chicago and completed my M.D. there in 1952. Following that
25 I entered the public health service where I spent the first year
692
1 as an intern at the Marine Hospital in San Francisco. Following
2 that, I was assigned from the public health service to be a
3 doctor at the medicine center for federal prisoners in Spring
4 Field Missouri where I ended up being a psychiatric doctor and
5 took care of psychiatric patients for two years. Following that
6 I went to the Meniger School of Psychiatry in Topeka, Kansas
7 where I became a resident in psychiatry and studied psychiatry
8 for three years.
9 I finished there in 1958 and I became a professor at the
10 University of Wisconsin in Madison, Wisconsin. After two years,
11 I left the university for about a year when I became chief
12 correction -- medical officer for the division of corrections
13 for the State of Wisconsin. Following that I returned to the
14 university of Wisconsin as a professor, but I continued to work
15 with the state prison and was to chief psychiatric consultant to
16 the state prison until I left in 1972 to go to the University of
17 North Carolina. At the university of North Carolina, I have
18 held many different jobs, including running the inpatient
19 service, the crisis service, the community psychiatry service, I
20 was acting chairman and at various times I've also been the
21 associate chairman of the department. And I formally retired
22 from the University of North Carolina in 1995.
23 Q. Will you tell the jury what your -- something of your
24 past clinical experience, please, first?
25 A. I have always been heavily involved in clinical practice
693
1 and saw --
2 Q. Excuse me, doctor, you can't get too close that
3 microphone, it's very sensitive.
4 A. I've always been very actively involved in clinical
5 practice and have had an active case load throughout my academic
6 career, when I worked in prisons I treated many prisoners and
7 was involved in the administrative decisions with regard to
8 them. It's only in the last year that I have cut down on my
9 clinical practice considerably.
10 Q. Would you tell the jury what teaching experiences you
11 have had in your profession.
12 A. I've always thought throughout the medical school and
13 had a very active teaching role both in the clinical setting and
14 in the didactic setting. And I've also taught fore more than 35
15 years in law schools. I taught both at the University of
16 Wisconsin and University of North Carolina. At the University
17 of North Carolina I taught until last year, and I taught mental
18 health law, I also have taught medical law and I have also
19 taught legal interviewing. I continue to teach in the medical
20 school only now teaching psychiatry.
21 Q. Will you tell the jury what past experience you have had
22 in the correctional area?
23 A. I mentioned two years at Spring Field Medical Center
24 where I ran both the execute boards and chronic boards, and took
25 care of very, very difficult violent patients from all of over
694
1 the Federal Bureau of Prisons system. Following that, when I
2 went to the Meniger School of Psychiatry, I worked in the Kansas
3 Industrial School for Boys for a year during my residency. In
4 Wisconsin I worked at the diagnostic center and I worked in all
5 of the prisons around the State, either as a consultant or as
6 administrator for the next 14 years.
7 I have also continued to have a relationship with the
8 Federal Bureau of Prisons, and I am still a consultant on
9 occasions to the Federal Bureau of Prisons. About 15 years ago,
10 I also began to contract with the Federal Bureau of
11 Investigation to investigate their agents. What I do for the
12 FBI is essentially deal with agents who are in trouble, and I
13 help the FBI make decisions as to whether or not they shall
14 retain them.
15 Q. All right, sir. Now, will you please tell the jury
16 about your past experience in civil court proceedings first?
17 A. For about the past 15 years, I have been participating
18 as an expert witness and consultant in legal issues, and I have
19 been involved in quite a number of civil cases, both with the
20 defense and with the plaintiff, usually with the defense.
21 Q. Okay. And how about your experience in court in
22 criminal cases?
23 A. Again, for the last 15 years I've been involved in a
24 number of cases in the criminal setting. I was involved in
25 criminal cases back in the 60's, when I was working with the
695
1 Wisconsin Division of Corrections, and in those cases, I usually
2 represented the State. In the last 15 years, the majority of
3 cases I have done I have been with the defense.
4 Q. Will you please relate to jury any honors that you
5 received?
6 A. I received the Sutherland Award of the American Society
7 of Criminology for theoretical contributions to criminology. I
8 received the marshal award for distinguished alumni from the
9 Meniger School of Psychiatry. I received an Isaac Ray Award
10 from the American Psychiatric Association for contributions to
11 forensic psychiatry, I've been listed in Best Doctors in America
12 for the last three or four years and recently been told I'm
13 going to be put in the best 2000 doctors in America.
14 Q. Will you tell the Court -- excuse me. Tell the court
15 and the jury about any publications or editorships that you been
16 involved with in your profession?
17 A. I've written six books on my own, been an editor of six
18 others, and I have over a hundred publications. I'm an editor
19 in chief of Contemporary Psychiatry and currently editor and
20 chief of the Journal of American Academy of Psychiatry and Law,
21 and I'm a contributing editor to two of three other journals.
22 MR. WILLIAMS: At this time, Your Honor, I would tender
23 Seymore Halleck to the Court as expert in the field of forensic
24 psychiatry.
25 THE COURT: The forensic psychiatry?
696
1 MR. WILLIAMS: Yes.
2 THE COURT: All right, the Court will so accept him.
3 MR. WILLIAMS: Thank you, Your Honor.
4 BY MR. WILLIAMS:
5 Q. Dr. Halleck, were you asked and were you court-appointed
6 to assist the defense in this case?
7 A. Yes, I was.
8 Q. Okay. And did you -- were you asked to and did you
9 examine the young man seated next to me, Aquilia Marcivicci
10 Barnette?
11 A. Yes, I did.
12 Q. Will you tell the jury the different days and times and
13 approximately how much time you spent examining Mr. Barnette,
14 please?
15 A. I saw him on July 28th of this year for about 4 hours, I
16 say him again in September on the 16th for about four hours.
17 Then when he was transferred to the federal correctional
18 institution I saw him on two occasions, on the 24th of November
19 for approximately two hours, and again on the 18th of December
20 for approximately 2 hours.
21 Q. And after examining -- interviewing Mr. Barnette on
22 those occasions either prior to doing that or after doing that,
23 what material, if any, did you review with regard to this case?
24 A. I reviewed a great deal of material which included
25 medical records, which included his school records, his work
697
1 records, the material that had been prepared by Cindy Maxwell
2 having to do with his background, which also included a life
3 line, a time line of his life, and also included a genogram.
4 And I reviewed all of Mr. Barnette's medical records, looked at
5 the divorce papers of his parents, looked at the confessions,
6 the two confessions in Charlotte and to the FBI, reviewed the
7 genogram which Maxwell presented, reviewed some autobiographical
8 material which Mr. Barnette had written, reviewed all of the
9 Butner FCI records, the indictment, the Grand Jury charge,
10 notice to seek the death penalty, some government briefs,
11 probation records. And in addition to that I reviewed some
12 medical reports which included those of Dr. Sally Johnson, those
13 of Dr. Duncan and Dr. Grant, those of Dr. Warren and those of
14 Dr. Tyson.
15 Q. Do you know Dr. Sally Johnson?
16 A. Yes.
17 Q. How long have you known her?
18 A. Approximately 15 or 20 years.
19 Q. In what capacity have you known Dr. Johnson?
20 A. I'm a consultant at the institution where she is the
21 chief psychiatrist.
22 Q. When did you receive the report of Dr. Duncan and Dr.
23 Grant?
24 A. I don't know the exact date but it would have been about
25 a week ago.
698
1 Q. About a week ago, was that the report from the
2 government's doctors?
3 A. Yes.
4 Q. Well, will get back to that, Dr. Halleck. As a result
5 of what materials you reviewed, what did you learn -- as a basis
6 for that or as result of that, what did you learn about Mark
7 Barnette's early life?
8 A. Well, I learned that he had a very stressful early life
9 and went through a number of experiences and situations which I
10 thought had a profound effect upon his later development in his
11 behavior to begin with, his parents were very young when he was
12 born, his mother was 14, his father was 16. While the father
13 tried to stay involved during the early years, the father and
14 mother lived apart and didn't really get married until Mark was
15 two and a half. I also learned that when Mark was 10 months
16 old, his maternal grandmother was murdered and taken away from
17 him.
18 Also I learned that because of the involvement in the
19 military and because of various problems the family was having,
20 Mark lived in many different residences as he was growing up,
21 and I think at one time he and I counted together that there
22 were 11 residences by the time he was 13 years old. It was also
23 the death of his maternal grandmother when he was four years
24 old. I think one of the more significant things that he talked
25 about was the beatings he received by his father, which began at
699
1 about the age four or five and continued until about the age of
2 10 or 11. And what he was most concerned about with these
3 beatings was their length and their severity. And it had gone
4 as long as an hour, and sometimes the father would tell him that
5 he was going to whip him until his arm got tired. And sometimes
6 his father shoved him, and sometimes he whipped him to the point
7 where there were welts. At one point, Mark did complain to
8 somebody and got DSS called into the situation, but apparently
9 nothing was done.
10 I think the other thing that was going on is that Mark
11 often felt not wanted, he felt that his parents were having so
12 many problems with each other and had so many things to take
13 care of themselves, that he was kind of extra and didn't belong
14 there and didn't feel like he had a right to be inside the house
15 as much as he wanted to.
16 He was clearly exposed to a great deal of fighting on
17 the part of his parents, and this seemed to be related to their
18 mutual accusations of infidelity towards one and another, and
19 some of this fighting was physical, not just verbal, and he
20 vividly recalls being humiliated when his father at one point
21 was physically assaulting his mother while he was waiting for
22 the school bus and the other school children could see that.
23 He was also aware of and concerned about his mother's
24 use of drugs, alcohol, marijuana, and probably cocaine. He was
25 also concerned as he got older that she would go away for
700
1 periods of time and not be available to him, that she would date
2 men that he did not sometimes like and did not trust and was not
3 available during some of that time. And it was of some trauma
4 to him that one of her mother's boyfriends was murdered. She
5 was dating somebody involved apparently in a criminal operations
6 and was murdered.
7 Mark was also troubled by the frequent changing of
8 schools, and he and I counted again I think seven before the age
9 of 15, these may be off by one or two but they are fairly
10 close. I think a particularly difficult moment for Mark was
11 when he was approximately 14 and his father took him and Mario
12 out to dinner and told both of them that paternity tests had
13 been run and they were not his children. And it was put in
14 terms of, you have to understand what it's like if you were
15 going with a girl and she was having babies with another person,
16 how would you feel about that.
17 And this is something that stuck with Mark and made him
18 feel like he had much less of a sense of who he was and much
19 less on an anchor in his life and much more unstable. Another
20 aspect of Mark's early life was he seemed to have become
21 involved in sexual activity at a very young age with a girl
22 about two years older than him, and was involved in sexual
23 activity even in grade school, which is probably too much
24 stimulation for a young boy.
25 Q. What effect in your opinion did all of these have on
701
1 Mark as a child in growing up?
2 A. I think some of the effect was seen in his very erratic
3 school performance. I think other aspects of it were seen in
4 his preoccupation with sexuality. I think the main thing that
5 happened was that he felt unwanted and unloved, developed a
6 sense of insecurity and a sense of low self esteem. He was
7 always feeling less than others, always feeling on the outside,
8 always feeling not as good as other people. Apparently as a
9 result of this and feeling that he could not get what he wanted
10 from his family, he became more street wise and began to pick up
11 values from the street relying on peers rather than families.
12 It's also interesting that as early as the age of eight
13 he started to talk about wanting to commit suicide and had
14 fantasies of jumping off of a bridge or running in front of a
15 train and did make one not significant effort to take an extra
16 two or three Tylenol pills when he was eight years old.
17 What is clear also that about this time he has strongly
18 mixed feelings towards woman. He very much needs woman, wants a
19 woman whom he can rely, who will be nurturing to him, and at the
20 same time he is already beginning to develop a great deal of
21 mistrust of woman and almost a fear and panic that they are
22 going to abandon him betray him in some way. Also, in the
23 environment in which he grew up, he, by this time, is beginning
24 to view violence as an acceptable way of men and women dealing
25 with one another.
702
1 Q. Dr. Halleck, in your professional opinion what problems
2 did Mark have by adolescence?
3 A. Some of the same ones continued, erratic school work, he
4 continued to feel inadequate, and he was getting periodic
5 depressions with suicidal impulses. There was a suicide attempt
6 somewhere around the time he was 14 or 15 involving a girl
7 breaking up with him. He also began to experiment with alcohol
8 in adolescence, and his usage increased as he got older, and I
9 will say more about that later.
10 He seemed to be able to work all right. And when he
11 started a job he would do it with enthusiasm and do well for
12 awhile but he had no real career plans. His sexual
13 preoccupation by this time, if anything, became even more
14 desperate and he became convinced that he had to search for a
15 woman with whom he could have a close intimate relationship, a
16 woman who would love him, who would nurture him and who would
17 always be faithful. He did not feel bound by the same
18 requirements, but he also felt very strongly that he was less
19 than a whole person unless he could have that kind of woman.
20 Q. Why, Dr. Halleck in your opinion was Mark violent with
21 his girlfriends?
22 A. I think Mark was extremely insecure with his girlfriends
23 and was franticly concerned that they would abandon him and
24 reject him. I think he also distorted the degree of their
25 possible infidelity, he was terrified that they would find
703
1 somebody else that was better than him, leave him, and abandon
2 him, and whenever he faced that problem he usually responded to
3 it with great anger. He had a great deal of difficulty when he
4 felt that any woman was cheating on him, and apparently in the
5 woman that he chose were often women who did, but even if they
6 did he in many ways exaggerated the extent to which they were.
7 He also had models for male and female violence because he had
8 seen a lot of it. I suppose it's also true that the women that
9 he picked were also women who at times were violent towards him,
10 they obviously couldn't hurt him as bad as he hurt them, but
11 they did get involved in wrestling matches and on occasion, some
12 of them did hurt him.
13 I think the other things that made the violence so much
14 more likely was that in all of the cases where the women were
15 leaving him, they did not give him clear unequivocal messages
16 that they were going. One of the things I see over and over in
17 clinical practice is when a couple is breaking up, the one who
18 is being left behind clings to straws, and if the person who is
19 leaving is not clear to the effect that she wants to leave and
20 doesn't make that unequivocally clear to the individual, he
21 instead of settling the issue in his mind and going on and
22 leading his life from there, he keeps feeling there is a
23 chance. He begs, he pleads and he hates himself for begging and
24 pleading but he gets more and more involved. And as he begins
25 to see that it's still possible that the woman will stay with
704
1 him, but she actually keeps rejecting him, his anger if anything
2 escalates. And most of the violent episodes that I see between
3 couples who are splitting up relate to situations in which the
4 woman had not been clear and absolutely unequivocal in saying
5 this is over.
6 And that didn't happen very clearly in some of Mark's
7 relationships.
8 Q. What about your -- do you have an opinion as to why Mark
9 was violent with males?
10 A. The only opinion I have there is all of the violence
11 with males seems be around fighting over females.
12 Q. Do have an opinion as to why he was violent with
13 children?
14 A. I think again that's probably role modeling, and he
15 probably viewed that as ordinary parenting.
16 Q. Doctor, what is a DSM 4?
17 A. DSM 4 is the Fourth Diagnostic Manual produced be the
18 American Psychiatric Association, in which they have gone into a
19 system of diagnosis based on defining a number of elements which
20 characterize a disorder, and you then have to find four or five
21 or six or certain number of those elements before you can make
22 the disorder. DSM 4 is a very long and complicated manual,
23 which really relies on listing a number of symptoms, and one of
24 the things that it does, one of the reasons that it was created
25 was to give us what we call a reliability, so that if two people
705
1 looked at the same things they would come up with hopefully the
2 same answer. And it is made -- it's been quite useful in making
3 progress and research in psychiatry, and is quite useful for
4 classification purposes. It has its limits.
5 Q. Dr. Halleck, what is differential diagnosis?
6 A. After a doctor has examined the patient, it usually is
7 unclear what is wrong with that patient, and we are trained in
8 medical school to try to think of every possible theory or
9 hypothesis as to what might be causing what we are seeing. And
10 one of the ways we try to train or residents to try and think
11 about this is after they have examined a patient, we routinely
12 ask what is your differential diagnosis, what are all of the
13 possibilities that you can think of that may be causing what we
14 are seeing here.
15 And then we train the student to go through each of
16 these and test the way he reasons as to which of these diagnoses
17 may be relevant and which may be irrelevant. And sometimes we
18 don't settle it easily, sometimes we are only left with a
19 differential diagnosis and are not sure, and sometimes we can
20 usually go through a differential diagnosis and say we have
21 ruled out four or five things, we know it's A and it's not B, C,
22 D or E.
23 Q. And using the DSM 4 criteria, Dr. Halleck, what is your
24 differential diagnosis of Mark Barnette in the two and half to
25 three months preceding the crimes?
706
1 A. Let me say first of all, there is an axis one and an
2 axis two in DSM 4. Access one refers to major diagnoses, and
3 access two refers to personality disorders or developmental
4 defects. I listed after reviewing Mark's material, what I
5 considered four axis one diagnoses, and if would you like me to
6 run through those.
7 Q. Yes, would you tell the jury what those four axis one
8 diagnoses were that you considered, first of all?
9 A. First one was substance abuse disorder. Second one was
10 major depressive disorder. The third one was bipolar two
11 disorder. And the fourth was intermittent explosive disorder.
12 And let me go through my reasoning on why I accepted some and
13 rejected others.
14 Q. All right, sir.
15 A. First diagnosis of substance abuse disorder requires not
16 that you are addicted to alcohol, not that you are experiencing
17 withdrawl or tolerance, but that you use alcohol in a way that
18 gets you into trouble. That alcohol is often associated with
19 problems in interpersonal relationships or problems with the
20 criminal justice system. And although Mark was not a heavy
21 drinker, I felt there was a correlation behind his use of
22 alcohol and his getting into trouble, and I felt that he did
23 qualify for the diagnosis of substance abuse disorder.
24 And again I'm not saying substance dependance disorder
25 because it's not clear that he was hooked on alcohol, but I
707
1 think he qualified for substance abuse disorder.
2 With regard to the second diagnosis of major depressive
3 disorder order, there are nine symptoms of that disorder, and
4 between the period when he first broke up with Robin in April of
5 1996 until he killed her in June of 1996, he got had all of
6 those symptoms. He had depressed mood most of the time, he had
7 withdrawl from pleasurable activities, something we call
8 antidonia, he had sleep problems, he had appetite problems, he
9 had low energy, he had low concentration, he had a great deal of
10 restlessness, he had low self esteem, and he had suicidal
11 thoughts much of the time. I felt that that was a definite
12 diagnosis during that period. Now, the bipolar two diagnosis
13 involves a situation in which the individual has repetitive --
14 Q. You have to back up.
15 A. Has repetitive --
16 THE COURT: Wait a minute, push that microphone up a
17 little bit, he has a real deep voice.
18 THE WITNESS: I'm trying to get over my laryngitis.
19 Bipolar disorder two is a situation in which there are recurrent
20 periods of depression sometimes varied with periods of what is
21 called hypomanic behavior or mild excitation behavior. And
22 hypomanic behavior is a situation in which one is perhaps a
23 little grandiose, in which their thought processes are speeded
24 up, in which their judgment is not good because they get too
25 much involved in work activity or sexual activities, and Mark
708
1 did have the criteria for a hypomanic state, but I had never
2 observed him in hose states, and there was no objective evidence
3 from anyone else of him being in those states.
4 The only thing I could observe during my interviews is
5 that he was often quite voluble, restless and would go from
6 subject to subject, which is characteristic of hypomanic,
7 people, but I could not firmly establish that he had all of the
8 symptoms of hypomania. So for that reason, while I thought this
9 was a quite reasonable hypothesis, I didn't think there was
10 enough evidence to make it with certainty.
11 The next diagnosis I considered was intermittent
12 explosive disorder, and that is a diagnosis in which an
13 individual periodically becomes violent for no good apparent
14 reason and in which the degree of violence is much greater than
15 would be anticipated from the circumstances involved, and in
16 which the individual perceives the violence as something he
17 really doesn't wanted to do, something alien to himself that he
18 doesn't even understand. Mark seemed to fit the criteria for
19 this diagnosis, except there is another caveat in making this
20 diagnosis, and that is you should not make it if the symptoms
21 can be explained by another diagnosis. And in this case, it
22 turned out there was another diagnosis that I thought explained
23 the symptoms better.
24 Q. And what was that?
25 A. That was on what we call axis two. And that was a
709
1 borderline personality disorder, and I would like to read those
2 symptoms because they fit Mark so well.
3 Q. Did you make an axis two diagnosis?
4 A. I did make an axis two diagnosis of borderline
5 personality disorder.
6 Q. Go ahead and tell the jury about that.
7 A. You need five of nine symptoms to make this diagnosis,
8 there are nine symptoms listed and Mark had seven of those.
9 First frantic efforts to avoid real or imagined abandonment.
10 Second, unstable relations, and by this we mean switching how
11 you feel about a relationship so at times you overemphasize the
12 person's good points and you suddenly turn around and
13 overemphasize their bad points. There is a technical name for
14 this in our field, and we call it splitting. Third,
15 impulsivity. Fourth, recurrent suicidal behavior. Fifth,
16 emotional instability. Sixth inappropriate anger. And seven,
17 transient paranoia.
18 Q. What is transient paranoia mean?
19 A. Feelings of others trying to harm you, feelings of
20 distrust which are not based on rational events, which come and
21 go.
22 Q. All right, sir. Did you have any other possibilities
23 that you considered?
24 A. Well, like Dr. Johnson and like Drs. Duncan and Grant, I
25 thought there were elements of both antisocial personality
710
1 disorder and narcissistic personality disorder. These did not
2 rise to the level of being independent diagnoses, but it
3 certainly made sense to say that he had antisocial and
4 narcissistic personality traits.
5 Q. When you -- did you finish?
6 A. Yes.
7 Q. And to make sure that I understand, with regard to the
8 possible consideration of antisocial personality traits, how
9 many of those traits are necessary to diagnosis that and how
10 many did Mark have?
11 A. Five of seven would do it, he did have five, but the
12 rule is according to DSM 4, the symptoms have to be present
13 before age 15 and they were not.
14 Q. So there were no symptoms present in those categories of
15 that disorder or the antisocial personality traits before he was
16 15 years old?
17 A. That's correct.
18 Q. And you read Dr. Sally Johnson's report, is that
19 correct?
20 A. Yes.
21 Q. And did she say the same thing about that?
22 A. Yes.
23 Q. She agreed with you?
24 A. Yes.
25 Q. And you agree with her?
711
1 A. Yes.
2 Q. And with regard to the narcissistic traits, how many do
3 you need to make such a diagnosis, how many were present in
4 Mark's narcissistic traits?
5 A. You need five of nine, I could only find four.
6 Q. Can you tell the jury what that means, narcissistic?
7 A. Narcissistic people are people who are very self
8 centered, very much involved with their own perfectionism, feel
9 that they are special, feel that they are entitled to be treated
10 better than other people, harbor fantasies of unlimited power
11 and ideal love, I'm often exploitative of other people and are
12 often arrogant.
13 Q. Did you find any -- I think you said that you needed
14 five out of nine to make such a diagnosis and you found four?
15 A. I found four.
16 Q. Which were the four that you found?
17 A. That he had fantasies of unlimited success and ideal
18 love, that he had some entitlement to feeling that he deserved
19 things that other didn't deserve, that he lacked empathy at
20 times, that he didn't understand how other people were feeling
21 and he could be grandiose.
22 Q. Dr. Halleck, are antisocial personality disorder and
23 narcissistic personality disorder considered serious mental
24 disorders?
25 A. They usually not because they were manifested primarily
712
1 by difficulties in personal relationships. These are people who
2 don't get along well with other people, but there is a question
3 of how much they suffered. So there is disability but not
4 distress.
5 Q. In your opinion, Dr. Halleck, is the borderline
6 personality disorder considered a serious mental disorder?
7 A. Yes, I think it's one of the most serious mental
8 disorders.
9 Q. Explain that to the jury.
10 A. People with borderline personality disorder are often
11 suicidal, their moods change constantly and mostly their moods
12 go downward. They have great difficulty getting along with
13 people, and their problems getting along with people lead to
14 them getting into states of high, very high anxiety and
15 depression. And in my work, I find that these people probably
16 suffer as much as any group of patients we work with in
17 psychiatry. There are certainly times when depressed patients
18 suffer more. People with borderline disorder can get very, very
19 depressed. People with borderline disorder can also become
20 transiently psychotic so that they can distort reality and at
21 those points they are suffering as much as the schizophrenic
22 patient. So even if it's a personality disorder diagnosis, I
23 consider it a major mental illness.
24 Q. At the time of the crime in your opinion, Dr. Halleck,
25 was Mark Barnette under the influence of a serious mental
713
1 disorder?
2 A. Yes, he was under the influence of this borderline
3 personality disorder, his major depression, and the substance
4 abuse disorder.
5 Q. If I were to ask you the question, Dr. Halleck, of why
6 this happened, what would you tell the jury?
7 MR. WALKER: Objection.
8 MR. WILLIAMS: Based upon your opinion.
9 THE COURT: His opinion, overruled.
10 THE WITNESS: I think that because of his experiences in
11 early childhood, and probably because of some just biological
12 deficits in handling emotions which he was simply born with, he
13 became a person who developed a desperate need to be taken care
14 of which he did not like to admit, he had a desperate need to be
15 nurtured by a woman and developed a profound fear, almost
16 paranoia or panic that they would leave him.
17 I think as we watched his relationships with that Tasha
18 and later with Alesha, Crystal in between, and later Robin,
19 there is an escalation of his paranoia, there is an escalation
20 of his fear. I think with each of these women he seemed to get
21 more and more violent. Then he finally comes up with what he
22 conceives to be a stable relationship with Robin, who he views
23 as the ultimate good woman, good protector. And when she wants
24 to get out of the relationship, he views this as a betrayal, and
25 he gets angry and his rage builds up to a point where he is no
714
1 longer able to deal with it in a logical fashion. He gets more
2 depressed, which interferes with his judgment further. He
3 begins using more alcohol, which interferes with his judgment
4 even further, and he ends up getting extraordinarily angry and
5 exercising just terrible judgment.
6 Q. You told the jury that you reviewed the Duncan, Grant
7 report?
8 A. Yes, I did.
9 Q. Did you understand that Dr. Duncan and Dr. Grant were
10 employed by the government?
11 A. Yes.
12 Q. Government employees?
13 A. They signed it as people who worked for the Atlanta
14 Bureau of Prisons, the federal prison in Atlanta.
15 Q. Did you understand from reading the report whether Dr.
16 Grant and Dr. Duncan were involved with the treatment of federal
17 prisoners in Atlanta?
18 A. I assumed if they worked at the Atlanta Federal Prison
19 they were treating federal prisoners in Atlanta.
20 Q. Because of their relationship with federal prisoners,
21 and based on your opinion of how psychiatrists are to conduct a
22 fair examination and a fair report, do you have an opinion
23 or -- what was your opinion of the Duncan, Grant report in that
24 regard?
25 MR. WALKER: Objection.
715
1 THE COURT: Sustained.
2 BY MR. WILLIAMS:
3 Q. Did you see any conflicts of interest in your opinion
4 with regard to the Duncan, Grant report?
5 MR. WALKER: Objection.
6 THE COURT: Sustained.
7 MR. WILLIAMS: Your Honor --
8 THE COURT: You are asking him opinions on psychiatry
9 not on his conflict of interest.
10 BY MR. WILLIAMS:
11 Q. In your opinion, was the psychiatric report by Dr.
12 Duncan, an employee of the federal government --
13 MR. WALKER: Objection.
14 MR. WILLIAMS: -- a fair.
15 THE COURT: Just a minute.
16 THE COURT: Wait a minute, let me start over. They were
17 employees of federal government, you don't need to put that in
18 the question, but go ahead and ask the question.
19 BY MR. WILLIAMS:
20 Q. In your opinion, was the evaluation of the psychiatrist,
21 Dr. Duncan, a fair, independent unbiased report?
22 MR. WALKER: Objection.
23 THE COURT: Overruled.
24 MR. WILLIAMS: You may answer.
25 THE WITNESS: Let me preface that by saying that there
716
1 is generally some bias in any report no matter who you are
2 working for. And it is hard, particularly if you are employed
3 by one side or another to come up with a completely objective
4 report. I felt that their report was singularly lacking in
5 objectivity, much more so than the ordinary report that I see,
6 no matter whose side one is on.
7 In other words I felt that they were exaggerating
8 certain things, that they were argumentative at times, and in
9 many ways the report looked more like a brief, like a legal
10 statement against Mr. Barnette and didn't carry the usual kind
11 of neutrality you want to see in a psychiatric report.
12 Q. Dr. Halleck, one last question, based upon your
13 interviews with Mark Barnette and the materials that you have
14 reviewed and based upon your opinions and diagnosis, do you have
15 an opinion as to how Mark would do in a federal prison?
16 A. He's adjusted extremely well in the Charlotte jail and
17 at the federal correctional institution, I think Mark's problems
18 are primarily with woman. And I think as long as he is not
19 involved in these kind of contentious relationships with woman,
20 he will not be violent in a correctional setting, no.
21 MR. WILLIAMS: No further questions.
22 THE COURT: Cross.
23 CROSS-EXAMINATION.
24 BY MR. WALKER:
25 Q. Doctor, the DSM 4 is the book I'm holding right here?
717
1 A. Yes.
2 Q. And you agree that it's the Bible of mental disorders?
3 A. No, I wouldn't agree with that.
4 Q. Well, there is 300, it's called the Manual of Mental
5 Disorders, that's what it's called, is that right?
6 A. Yes, I think it's a very useful experimental technology
7 in helping us deal with a lot of difficult issues.
8 Q. So there are 300, I think, mental disorders recorded in
9 the DSM 4, is that right?
10 A. I'm not sure, but if you say so, I will agree.
11 Q. There are things called a nicotine use disorder?
12 A. Yes.
13 Q. There is something called a caffeine intoxication
14 disorder?
15 A. Yes.
16 Q. There is something called a written expression disorder?
17 A. Is that a developmental disorder?
18 Q. Well, I will ask you about another one. Is there
19 something called a mathematics disorder?
20 A. Yes.
21 Q. The DSM 4 sets out as you indicated criteria or
22 characteristics for each of the disorders that you described as
23 well as the ones that I just indicated, is that right?
24 A. Correct.
25 Q. And if you meet so many out of, if you hit so many out
718
1 of so many, the practitioner can be comfortable giving that
2 diagnosis, is that correct?
3 A. Correct.
4 Q. There is something also in DSM called the oppositional
5 defiant disorder?
6 A. Yes, there is.
7 Q. And that's listed on page 94 of the DSM 4?
8 MR. WALKER: May I approach the witness Your Honor.
9 THE COURT: Yes, sir.
10 BY MR. WALKER:
11 Q. And I wanted to ask you a couple of questions, and I
12 wanted to show you first, does that appear to be taken from the
13 DSM 4?
14 A. Yes.
15 Q. Okay. Well, you can refer to that, I have a copy of
16 mine.
17 Now, the oppositional defiant disorder indicates a
18 pattern of hostile and defiant behavior lasting at least six
19 months during which four or more of the following are present,
20 is that right?
21 A. Correct.
22 Q. And the first one would be often loses temper?
23 A. Yes.
24 Q. Second one is often argues with adults?
25 A. Yes.
719
1 Q. Often actively defies or refuses to comply with adults
2 requests or rules?
3 A. Yes.
4 Q. Often deliberately annoys people, often blames others
5 for his or her mistakes or behavior?
6 A. Yes.
7 Q. There are three more listed, is often touchy or easily
8 annoyed by others, is often angry and resentful, is often
9 spiteful or vindictive. Those are some characteristics of this
10 disorder?
11 A. That's right.
12 Q. Now, referring your attention now to the disorder found
13 on page 90 of the DSM 4, that's a disorder that's referred to as
14 a conduct disorder, is that right?
15 A. Correct.
16 Q. And it also has some characteristics or criteria that
17 the practitioner would look at in looking at the patient to see
18 if he met any of those?
19 A. That's correct.
20 Q. And I believe on the diagnostic criteria for conduct
21 disorder, it says a repetitive or persistent pattern of behavior
22 in which the basic rights of others or major age appropriate
23 societal norms or rules are violated, as manifested by the
24 presence of three or more of the following criteria in the past
25 12 months, and it indicates what the criteria are as the last
720
1 disorder that we discussed, is that right?
2 A. That's right.
3 Q. Number one would be often bullies, threatens or
4 intimidates others, is that right?
5 A. Right.
6 Q. Number two is often initiates physical fights?
7 A. Right.
8 Q. And number three, has used a weapon that can cause
9 serious bodily harm to others, and the weapons listed are a bat,
10 brick, broken bottle, knife or a gun?
11 A. Yes.
12 Q. Number four, has been physically cruel to people, also
13 has been physically cruel to animals, has stolen while
14 confronting a victim, and if DSM lists examples of mugging,
15 purse snatching, extortion or armed robbery, is that right?
16 A. That's correct.
17 Q. And number 7 says, has forced someone into sexual
18 activity?
19 A. Yes.
20 Q. And then down on number 8, does it not read, has
21 deliberately engaged in fire setting with the intention of
22 causing serious damage?
23 A. Yes.
24 Q. That sounds like the defendant in the case, don't they?
25 A. No, not exactly.
721
1 Q. You understand that the, as you indicated in your prior
2 response to the questions by Mr. Williams, that the DSM 4 is an,
3 I believe you said to me that it was a -- how would you
4 characterize the DSM 4, how would you characterize its use?
5 A. It's a useful tool in researching classification.
6 Q. And it should be used with caution, is that right?
7 A. With great caution.
8 Q. And in fact, in the introductory paragraphs of the DSM
9 4, does it not read, the purpose of DSM 4 is to provide clear
10 descriptions of diagnostic categories in order to enable
11 clinicians and investigators to diagnosis and communicate about
12 studies and treat people with various mental disorders. And it
13 later reads, the clinical and scientific considerations involved
14 in categorization of these conditions as mental disorders may
15 not be wholly relevant to legal judgements. For example, that
16 take into the account such issues as individual responsibility,
17 disability determinations and competency?
18 A. I wrote that paragraph.
19 Q. So you agree with it?
20 A. Yes.
21 Q. Let me also ask you about some of the things that you
22 looked at pursuant to your work in this case, the defendant is
23 not a mentally retarded person is he?
24 A. No.
25 Q. In fact his IQ is quite average?
722
1 A. I think it's slightly above average.
2 Q. And you found him to be a talkative person on the times
3 that you met with him?
4 A. Yes.
5 Q. Could the fact that defendant knew at the time that he
6 spoke to you that he was facing the death penalty have
7 influenced what he told you?
8 A. It certainly could have.
9 Q. Do you know if he lied to you at any point during your
10 evaluations of him?
11 A. I think he minimized certain things and perhaps
12 exaggerated other things, I didn't really catch any clear lies.
13 Q. You never met or knew of the defendant before your four
14 visits with him is that right?
15 A. That's correct.
16 Q. You indicated that you reviewed his medical records, is
17 that right?
18 A. That's correct.
19 Q. His school records anD employment records and also
20 something that you indicated in a report is referred to as an
21 expert in mitigations report, is that right?
22 A. Yes.
23 Q. And I believe you also reviewed autobiogrphical
24 information prepared by Mr. Barnette, and I wanted to ask you a
25 few questions about that. Your report didn't indicate that you
723
1 reviewed the discovery in this case, is that right?
2 A. I don't think I did.
3 Q. You didn't look at any of the arrest reports by member
4 of Charlotte Mecklenburg Police Department?
5 A. I did review the confessions, the interviewing of him.
6 Q. That would be the statement that the defendant gave to
7 investigator Sanders and then there was another statement to
8 Investigator Holl, is that right?
9 A. And one to the FBI.
10 Q. But my question specifically is, did you review any
11 other police documents related to this case?
12 A. I don't believe -- I don't believe so.
13 Q. Did you look at any statements by various witnesses who
14 have seen the defendant act violently in his past?
15 A. I heard some of those through Duncan, Grant report.
16 Q. Did you speak with a Tasha Heard?
17 A. No.
18 Q. Did you speak with Crystal Dennis?
19 A. No.
20 Q. How about Mrs. Dennis's two children?
21 A. No.
22 Q. Did you speak to Alesha Chambers?
23 A. No.
24 Q. How about Jasper Chambers?
25 A. No.
724
1 Q. Did you speak with an individual named Brian Ard about
2 the defendant?
3 A. No.
4 Q. Did you ever speak with Derrick Barnette about the
5 defendant?
6 A. We shared about two words while waiting for my testimony
7 but we never really discussed the defendant.
8 Q. So you never discussed with Derrick Barnette the
9 allegations that the defendant made about him?
10 A. I never discussed it with him, no.
11 Q. Have you ever talked with a probation officer for the
12 defendant?
13 A. No.
14 Q. Have you ever visited the intersection of Billy Graham
15 Parkway and Morris Field Drive?
16 A. Yes.
17 Q. Have you have ever driven the three and half hours from
18 Charlotte to Roanoke?
19 A. No.
20 Q. You would agree that a three and half hour drive is
21 sufficently long enough for the defendant to form and plan an
22 intent to kill Robin Williams?
23 A. Yes.
24 Q. Would you characterize -- you indicated that you don't
25 think the defendant lied to you, is that your opinion of his
725
1 statements to you?
2 A. I felt that he at least at the beginning left things out
3 that didn't put him in a good light, and threw things in that
4 put him in better light. That's fairly usual in that situation
5 --
6 Q. Are you aware --
7 MR. WILLIAMS: Objection, he wasn't finished.
8 THE WITNESS: I don't think I caught him in any major
9 lies, he was quite forthright about his violence.
10 BY MR. WALKER.
11 Q. Are you aware of the defendant purchasing a shotgun on
12 June 21st of 1996?
13 A. I'm not certain about the exact dates, but I know about
14 the shotgun.
15 Q. And do you know that on the 21st of 1996 that he had to
16 purchase -- when he purchased that shotgun he filled out a
17 transaction records, firearms transaction record, have you
18 reviewed that document?
19 A. I have read somewhere in one of the reports that he
20 falsified some information on it.
21 Q. Okay. And in other words, if he was asked on that
22 particular date if he was a fugitive from justice and if he
23 answered no, then that was a lie?
24 A. That would be a lie.
25 Q. And if he was asked on that particular date if he was a
726
1 convicted felon and if he answered no that was also a lie, is
2 that right?
3 A. That's correct.
4 Q. And if he signed his brother's name to that document
5 indicating that he was Mario Barnette when he was in fact not
6 Mario Barnette, that also was a lie, is that right?
7 A. Yes.
8 Q. Is lying listed as one of the major criteria for major
9 depressive episode?
10 A. No.
11 Q. You indicated that on page 3 of your report that you
12 found the defendant to have an outgoing personality, is that
13 right?
14 A. Correct.
15 Q. And do you think in your opinion that he was able to
16 function well at his various places of employment?
17 A. He seemed to do well for a little while, he had
18 difficulty sustaining a continuing work relationship.
19 Q. Did you review a statement that the defendant gave to
20 Detective Yarlboro in Newnan, Georgia?
21 A. I don't believe I did.
22 Q. Are you aware that the defendant told Detective Yarlboro
23 that he beat Crystal Dennis's two year old infant because quote,
24 he took the laces from his shoes. Do you know he told Detective
25 Yarlboro that?
727
1 A. I don't know that.
2 Q. And do you know that he also told Detective Yarlboro
3 that he couldn't tell him why, he didn't remember why he had
4 beaten her other child, do you know that he told Detective
5 Yarlboro that?
6 A. I didn't know that.
7 Q. But you do know that he told you that he beat those kids
8 because he found them experimenting sexually?
9 A. That's what he told me.
10 Q. Did you speak with Investigator Brandon who has in the
11 past interviewed the defendant?
12 A. No.
13 Q. You are aware that the defendant in the past was
14 arrested for an incident that occurred with Alesha Chambers?
15 A. Yes.
16 Q. You are aware of that?
17 A. (Nods head.)
18 Q. Do you know that the defendant gave a statement to
19 Investigator Brandon?
20 A. I assume he did.
21 Q. Okay. In that statement -- if the defendant was asked
22 in that statement -- do you know that when he was asked about
23 that particular incident that the defendant told Investigator
24 Brandon that Alesha Chambers had planted the evidence in his
25 car, did the defendant tell you anything about that?
728
1 A. I have no recollection of that at all.
2 Q. Dr. Halleck, you made no mention of Donnie Allen in your
3 report, why is that?
4 A. There was no particular reason. One reason is I had no
5 way of trying to explain what happened there.
6 Q. Based on what the defendant told you about the murder of
7 Donald Allen, did Donald Allen ever do anything in your opinion
8 to the defendant to would make the defendant hurt him?
9 A. Of course not.
10 Q. Didn't challenge the defendant?
11 A. No.
12 Q. Didn't resist the defendant?
13 A. No.
14 Q. You say on page 6 of your report that the defendant
15 likes to talk and will do so for long periods of time if
16 uninterrupted, is what you say in your report, is that right?
17 A. That's what I said.
18 Q. And you also noted on that same page that the defendant
19 shows good recent and remote memory, does that mean in your
20 opinion that he has good recall of past events?
21 A. Yes.
22 Q. Do you know however that upon being questioned in this
23 case about the details about why he killed Donnie Allen that he
24 was able to remember how heavy the traffic was on Billy Graham,
25 do you know he was able to remember that detail?
729
1 A. I remember that.
2 Q. But do you know that he was unable to remember what he
3 did with Donnie Allen's golf clubs that were in the back of his
4 car?
5 A. I remember that, too.
6 Q. You indicated that you reviewed Dr. William Tyson's
7 psychiatric report of the defendant which was performed back in
8 June of 1994, is that right?
9 A. Yes.
10 Q. And in the third paragraph of Dr. Tyson's report he
11 noted that defendant appears to be able to appreciate the
12 charges against him, is that right?
13 A. Right.
14 Q. And following -- Dr. Tyson's also noted defendant
15 appears to be able to appreciate the consequences if convicted,
16 did you see that?
17 A. Yes.
18 Q. And Dr. Tyson also noted that there's no evidence has
19 emerged on which to question the defendant's ability to
20 appreciate the wrongfulness of his actions?
21 A. Yes.
22 Q. And you would agree with that, wouldn't you?
23 A. Tyson was talking about events unrelated to the current
24 charge, there probably is some diminution in his appreciation of
25 what he has done. Now, whether it's significant or not I don't
730
1 know.
2 Q. Dr. Tyson also indicated in his report that you relied
3 upon that the defendant ridgedly adheres to thinking paterns
4 that center around justification of his own actions, that's what
5 Dr. Tyson and those were the words that he used?
6 A. Yes.
7 Q. The defendant is capable of making the right choices,
8 isn't he?
9 A. He is capable. For him it is harder.
10 Q. But he is capable?
11 A. He is capable. The question is how much harder.
12 Q. For instance, since he's been incarcerated on these
13 charges, he's been able to abide by the rules of the various
14 institutions to which he's been incarcerated?
15 A. He does well with structure.
16 Q. Does that comes as a surprise to you that he would
17 behave in prison since he was waiting trial for a capital murder
18 charge?
19 A. No.
20 MR. WALKER: Judge, I don't have any other questions.
21 THE COURT: Redirect?
22 MR. WILLIAMS: No further questions, Your Honor.
23 THE COURT: Thank you Doctor, step down. I guess that's
24 all. Members of the jury we will take the evening recess at
25 this time, do not discuss the case among yourselves or anyone
731
1 outside of the courtroom. I know you are tired of hearing
2 that. Don't read anything or look at any TV or let anybody talk
3 to you about the case. I hope you get home safely in the rain,
4 see you tomorrow morning at 9:30. I think we can say that we
5 will probably finish tomorrow with the evidence?
6 MR. WILLIAMS: I'm sorry?
7 THE COURT: Probably finish the evidence tomorrow?
8 MR. WILLIAMS: We have two witnesses.
9 MR. LAUGHRUN: Yes, sir, and some audio evidence.
10 THE COURT: We'll certainly do it by Thursday.
11 MR. LAUGHRUN: Judge, we will be through tomorrow.
12 THE COURT: How about the government?
13 MR. CONRAD: We have rebuttal evidence to put on, yes,
14 sir.
15 THE COURT: I mean, can we finish tomorrow?
16 MR. CONRAD: No, sir.
17 THE COURT: Finish by Thursday any way, and probably
18 take Friday for us to get some things done we have to do and
19 come back on Monday, I'm forecasting that, I don't think
20 anything is going to keep us from doing that, so we see some
21 light at the end of the tunnel, thank you so much for your time,
22 and be careful going home, and see you in the morning at 9:30.
23 (The jury left the courtroom.)
24 THE COURT: All right, recess until tomorrow morning at
25 9:30.
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