732
1 UNITED STATES DISTRICT COURT
2 FOR THE WESTERN DISTRICT OF NORTH CAROLINA
3 CHARLOTTE DIVISION
4
UNITED STATES OF AMERICA )
5 )
)
6 vs. ) File No. 3:97CR23-P
)
7 AQUILIA MARCIVICCI BARNETTE, ) SENTENCING PHASE
)
8 Defendant. )
)
9
10
11 Transcript of proceedings before the Honorable
12 ROBERT D. POTTER, Senior United States District Court Judge,
13 before Scott A. Huseby, Official Court Reporter and Notary
14 Public, on the 4th day of February, 1998.
15 APPEARANCES:
16 For the United States:
17 ROBERT J. CONRAD, JR.
THOMAS G. WALKER
18 Assistant United States Attorneys
227 West Trade Street, Suite 1700
19 Charlotte, North Carolina 28204
20 On Behalf of the Defendant:
21 GEORGE V. LAUGHRUN, Esq.
Suite 602
22 301 South McDowell Street
Charlotte, North Carolina 28204
23
24
25
733
1 APPEARANCES: (Continued)
PAUL J. WILLIAMS, Esq.
2 Suite 801
301 South McDowell Street
3 Charlotte, North Carolina 28204
4
5 ---
6
7 THE COURT: Good morning, everyone.
8 MR. CONRAD: Good morning, Your Honor.
9 THE COURT: We're ready for the jury, I assume, call the
10 jury.
11 (The jury returned to the courtroom.)
12 THE COURT: Good morning. I see you have your coats,
13 glad to see you have your coats this morning. I think you must
14 come in and test the temperature before you come out here. I
15 assume y'all are a little bit chilly, is that right?
16 (Jurors nod heads.)
17 THE COURT: We'll try to see if we can get the heat
18 turned on sometime during the day.
19 All right, members of the jury, we are ready for more
20 evidence on the part of the defendant.
21 MR. WILLIAMS: Thank you, Your Honor. The defense calls
22 Cindy or Cynthia Maxwell, if Your Honor please.
23 CYNTHIA NEAGLE MAXWELL,
24 being first duly sworn, was examined and testified as follows:
25 DIRECT EXAMINATION
734
1 BY MR. WILLIAMS:
2 Q. State your name, please.
3 A. Cynthia Neagle Maxwell.
4 Q. Ms. Maxwell, were you at our request appointed by the
5 Court, this Court to assist the defense in this case?
6 A. Yes, I was.
7 Q. And in that regard, were you asked to prepare a life
8 history of Mark Barnette?
9 A. I was.
10 Q. Now, with regard to preparing a life history of Mark
11 Barnette, have you had any experience in doing that?
12 A. Yes, I have.
13 Q. And have you had any experience or in your background
14 any mental health experience or experience in social work?
15 A. I have experience in both.
16 Q. And have you been asked in the past to prepare life
17 histories for other lawyers in other cases?
18 A. I have.
19 Q. And were those all in capital defense cases?
20 A. Specific life histories have always been in capital
21 defense cases.
22 MR. WILLIAMS: If I may approach, Your Honor, I think
23 that microphone may be a little high, if I may. Can you hear
24 her all right?
25 THE COURT: Can y'all hear her?
735
1 THE CLERK: If she talks louder, it will be all right.
2 BY MR. WILLIAMS:
3 Q. I'm sorry, your answer to that question was what?
4 A. Specific life histories have been in capital cases for
5 the defense.
6 Q. And have you had experience in your past in doing that?
7 A. Yes, I have.
8 Q. And have you participated in any seminars and experience
9 in preparing life histories?
10 A. I have.
11 Q. And how many life histories have you prepared in the
12 past in regard to a person charged in a criminal case,
13 particularly a capital case?
14 A. For capital cases, I have worked on and prepared life
15 histories in 14 cases where the life history was typed and
16 submitted to defense counsel. I have assisted and consulted on
17 criminal cases and child abuse cases and life histories for
18 those people. I have done probably 30 or 40 life histories that
19 were not necessarily typed but were verbally given to defense
20 counsel.
21 Q. Now, what -- tell the jury just briefly what you do to
22 first obtain a life history.
23 A. I interview the defendant and the defendant's family and
24 any members of the family or significant others that the
25 defendant sends me to interview. I review records, and from
736
1 those records I find other names of people and agencies,
2 institutions, whom I interview. I then ask those people if
3 there is anyone else I should interview and I go and interview
4 those people. I talk with -- whenever I can find a phone number
5 or have access to victims, I do talk to victims if I can find
6 them. I talk with teachers and doctors and nurses and just
7 anybody I can find that knows the defendant and try --
8 Q. As a result of that and doing a life history, do you
9 prepare what is called a life line --
10 A. Yes, I do.
11 Q. -- in that regard?
12 A. Yes, I do.
13 THE COURT: Excuse me just a minute. Is that gentleman
14 that just came in, is he a witness in the case?
15 MR. LAUGHRUN: No, sir.
16 MR. WILLIAMS: No, sir, he is a lawyer.
17 THE COURT: Oh, okay, thank you. Lawyers can't be
18 witnesses.
19 MR. WILLIAMS: It's Mr. Brook, Your Honor.
20 THE COURT: Not very good witnesses anyway. All right,
21 go ahead.
22 BY MR. WILLIAMS:
23 Q. Now, when you prepare a life history and -- let me
24 strike that. Were you -- when were you appointed in this case
25 to assist the defense, about how long ago?
737
1 A. May 25th, 1997.
2 Q. And since that time, in the process of preparing a life
3 history and going into the background and reviewing records and
4 doing all that, about how many hours have you spent doing that?
5 A. Somewhere between 200 and 300 hours.
6 Q. Now, after you do a life history, do you then put it in
7 a visual form such as a life line?
8 A. Yes, I do.
9 Q. And how do you obtain or how do you prepare the life
10 line, where do you get the information that goes in the life
11 line to present as a visual history of the client's life, how do
12 you do that, where do you get that information from?
13 A. From the life history, which is a compilation of the
14 interviews and information that I have obtained.
15 Q. And when you do the life line, do you sometimes include
16 photographs in the life line that have been provided to you from
17 members of the family to indicate the life of, in this case Mark
18 Barnette at different times of his life?
19 A. Yes, I do.
20 MR. WILLIAMS: If I may approach the witness, Your
21 Honor?
22 THE COURT: Yes, sir.
23 BY MR. WILLIAMS:
24 Q. If I may show you Defendant's Exhibit 28B and 28C and
25 28D, and ask you if you recognize those photographs?
738
1 A. Yes, I do.
2 Q. And on the backs of the photographs, are there any
3 markings?
4 A. Yes, there are markings.
5 Q. Okay.
6 MR. CONRAD: Your Honor, we would stipulate to these
7 photographs which have already been admitted, and we would
8 stipulate as well to the admission of the life line.
9 THE COURT: All right.
10 MR. WILLIAMS: All right, thank you very much.
11 BY MR. WILLIAMS:
12 Q. Let me hand you Defendant's Exhibit Number 43, and ask
13 you if that is the life line that you prepared in this case with
14 regard to the life of Mark Barnette?
15 A. Yes, it is.
16 MR. WILLIAMS: If Your Honor please, we offer that
17 exhibit into evidence and ask that the jury be allowed to be
18 passed a notebook that has -- well, before I do that, I have one
19 more question to ask her.
20 BY MR. WILLIAMS:
21 Q. The notebook includes the life line, and also were
22 you -- did you obtain from Mr. Barnette some drawings or
23 art -- samples of his artwork that he has done since he has been
24 in prison?
25 A. Since he's been in jail, yes, sir.
739
1 MR. WILLIAMS: May I approach, Your Honor?
2 THE COURT: Yes, sir.
3 BY MR. WILLIAMS:
4 Q. And let me show you Exhibits 29A, B, C and D, and ask
5 you if those are the drawings that you obtained from Mark
6 Barnette that he did, from what he told you, since he's been in
7 jail?
8 A. Yes.
9 MR. WILLIAMS: We'd offer those into evidence, Your
10 Honor, and now ask that the notebook be passed to the jury
11 showing those two exhibits.
12 THE COURT: There is no objection to the notebook?
13 MR. WILLIAMS: We have taken out everything in the
14 notebook except the life line and those photographs.
15 THE COURT: All right, let them be admitted.
16 MR. CONRAD: Does the notebook have an exhibit number?
17 MR. WILLIAMS: Well, the notebook is going to be the
18 Exhibit 43A.
19 THE COURT: 43A? All right, the notebook as it is
20 passed to the jury will be admitted.
21 MR. WILLIAMS: Thank you, Your Honor.
22 THE COURT: And also 29 -- well, you've already got 28
23 in, I think -- 29A, B, C and D. Was there anything else? That
24 was all, wasn't it, okay, thank you.
25 BY MR. WILLIAMS:
740
1 Q. Very briefly, would you come down in front of the jury
2 while the notebooks are being passed out so we can move along as
3 quickly as possible, and I will ask you if Defendant's Exhibit
4 43A is the same thing as the life line for Mr. Barnette but put
5 together on a large board?
6 A. Yes.
7 MR. CONRAD: Your Honor, just for clarification, I
8 thought 43A was the notebook that was passed to the jury.
9 MR. WILLIAMS: I'm sorry, it is. 43B would be the
10 blowup of the life line. I'm sorry, Your Honor.
11 THE COURT: 43B, all right, it will be admitted, and
12 43A.
13 BY MR. WILLIAMS:
14 Q. Now, Exhibit 43B, I just want you to briefly explain to
15 the jury at this point, using the notebooks that the jurors have
16 at the beginning of the first page in the notebook of the life
17 line, is that this page here beginning in 1973?
18 A. I think we are going to stand in front. If I pull it
19 this way, I think --
20 THE CLERK: There is a pointer if you need one.
21 MR. WILLIAMS: May I have a pointer, Your Honor?
22 THE COURT: We have one right here, Mr. Williams.
23 MR. WILLIAMS: I have one, Your Honor.
24 BY MR. WILLIAMS:
25 Q. With regard to the first item that I'm pointing out
741
1 right now, is that the first page of the life line that's in the
2 notebook?
3 A. Yes, it is.
4 Q. And then the second page that's in the notebook for the
5 jurors is this page here?
6 A. That's correct.
7 Q. And then do the rest of the -- if you can stand right
8 over here where I am. And are the rest of the pages in
9 sequential order on this life line going in this direction
10 (indicating)?
11 A. Yes.
12 Q. As they appear in the notebook for the jurors?
13 A. Yes, that's correct.
14 Q. Now, I notice that there are photographs in that life
15 line. Are those the photographs that have been admitted into
16 evidence that you testified you obtained, I believe from Sonia
17 Barnette?
18 A. Those are the photographs, yes.
19 Q. And there are also, if you could explain briefly to the
20 jury what this life line has in it with regard to the different
21 colors. I believe there is a color code down here in the lower
22 left-hand page -- lower left-hand corner of each page. Would
23 you explain what that color code is?
24 A. Yes. The magenta or the first color is for Mark's
25 employment during his life, and the green is for every move that
742
1 he made. The red is for the violence that has been in his life,
2 and the blue indicates information about significant others.
3 Q. Okay. And did you determine or did you make a
4 determination in putting this life line into this form, into a
5 visual exhibit, make determinations as to what went in there?
6 A. Yes, I did.
7 Q. And what were the reasons you made those determinations?
8 A. The determinations were made based on commonly accepted
9 risk factors.
10 MR. CONRAD: Objection, this witness is not an expert on
11 risk factors, Your Honor.
12 THE COURT: Sustained.
13 BY MR. WILLIAMS:
14 Q. In any event, did you take the various events from Mark
15 Barnette's life and place them in this life line?
16 A. Yes.
17 Q. And did you obtain that information from the life
18 history that you obtained from your interviews of over 200 hours
19 with various people and reviewing records?
20 A. Yes, that's right.
21 Q. Thank you very much, you may take the stand.
22 MR. WILLIAMS: I believe I have offered that exhibit,
23 Your Honor, but it's offered again to illustrate the testimony
24 of the witnesses and to illustrate the life story of
25 Mr. Barnette in visual form. You may cross-examine.
743
1 THE COURT: Yes, sir. If you want to move that, you
2 can.
3 MR. CONRAD: I will leave that for the moment, Your
4 Honor, thank you.
5 THE COURT: Can you see the witness?
6 MR. CONRAD: I can.
7 MR. WILLIAMS: I'll be glad to move it.
8 MR. CONRAD: I said I would leave it there.
9 CROSS-EXAMINATION
10 BY MR. CONRAD:
11 Q. Ms. Maxwell, you indicated that you had some training.
12 What type of training did you have to put together a life line?
13 A. I have training in the mental health field. I have a
14 B.A. in psychology from the University of North Carolina at
15 Chapel Hill. I have been a therapist and an emergency telephone
16 worker at Mecklenburg Mental Health and Gaston Lincoln Mental
17 Health. I did an internship at Butner while a student in
18 psychology.
19 Q. How long ago was that?
20 A. That was in 1975 that I did the internship.
21 Q. After that, when is the first time you did a life line?
22 A. That I actually did a life line?
23 Q. Right.
24 A. I started doing these life lines in 19 -- putting them
25 on boards like this in 1993.
744
1 Q. And that was as a result of some specific training,
2 wasn't it?
3 A. That was the result of some specific training.
4 Q. And what specific training was that?
5 A. I had one-on-one training from the mitigation specialist
6 at the Center for Death Penalty Litigation who is a Master's in
7 social work.
8 Q. And what is the Center for Death Penalty Litigation to
9 your knowledge?
10 A. It is a center that studies death penalty cases and
11 provides representation and consultation to defense attorneys.
12 Q. It's a think tank for defense attorneys with capital
13 cases, correct?
14 A. That's a synopsis.
15 Q. And a resource for defense attorneys?
16 A. That's correct.
17 Q. And after you had that training, you've done some 14
18 life histories did you say?
19 A. Yes, sir.
20 Q. And this is one of them?
21 A. This is one of them.
22 Q. Now, your chart has 15 pages in a notebook in three rows
23 on a poster board, does it not?
24 A. That's correct.
25 Q. And Donnie Lee Allen and Robin Williams' murder, which
745
1 this case is all about, is a little tiny circle on the second to
2 last page, correct?
3 A. Yes, sir, that's where it came in the life line.
4 Q. Turning your attention to the page which begins with
5 1992, do you have a copy of the notebook in front of you?
6 A. I do.
7 Q. Does that --
8 A. That would be Page 10, the page numbers are in the lower
9 right-hand corner.
10 Q. Right. Does that show that the defendant spent 25 days
11 in jail in 1992?
12 A. That's correct.
13 Q. And how do you know that?
14 A. I reviewed his criminal records.
15 Q. And does that show that soon after he got out of jail,
16 he was arrested again for felonious conduct?
17 A. That shows that he was arrested in the first of 1993.
18 Q. Correct. So soon after he got out of jail, spent 25
19 days in jail for shooting someone, he was arrested again for
20 felonious conduct in the early part of '93, correct?
21 A. Correct, he got out of jail in June of '92.
22 Q. Now, I think this orange color is supposed to signify
23 violent events in the defendant's life, is that right?
24 A. That's correct.
25 Q. Where in 1993 have you drawn an orange circle showing
746
1 that the defendant beat the infant children of Crystal Dennis,
2 can you point that out to the jury?
3 A. I did not color it orange. What I did was I talked
4 about -- and I did not color it any color actually. In the
5 beginning of 1993, I talked about the negotiated plea on two
6 counts of cruelty to children.
7 Q. Did you not indicate there the significance of the event
8 to you on January 28th, 1993 is that Mark was arrested and lost
9 his Blockbuster job, is that the event where he beat the two
10 children of Crystal Dennis, yes or no?
11 A. Yes, it is.
12 Q. And anywhere there did you indicate that he beat the two
13 children of Crystal Dennis?
14 A. I did not -- I indicated --
15 Q. Yes or no?
16 MR. WILLIAMS: Well, objection, Your Honor.
17 THE COURT: She hasn't answered the question. Very
18 simple, yes or no, and then she can explain.
19 MR. WILLIAMS: She has a right to explain it, Your
20 Honor.
21 THE WITNESS: Yes, I did indicate it.
22 BY MR. CONRAD:
23 Q. And would you show the jury where it is that you
24 indicated that he beat the two children, one age three and one
25 age five, of Crystal Dennis?
747
1 A. Underneath where he was arrested for the Blockbuster
2 job, I have that he negotiated a plea of two counts of cruelty
3 to children.
4 Q. So the significance to you is that he negotiated a plea,
5 not that he beat the two children?
6 A. I think both are significant.
7 Q. But only one is reflected, correct?
8 A. If I could explain why I think both are significant.
9 Q. I'm asking you if only one of those things is reflected
10 on your chart, can you answer me yes or no?
11 A. No, both are.
12 Q. Is it not colored in orange because in your opinion as a
13 mitigation whatever, that you didn't think it was an act of
14 violence?
15 MR. LAUGHRUN: Object to the mitigation whatever, Your
16 Honor, that's --
17 THE COURT: Sustain that.
18 BY MR. CONRAD:
19 Q. Is it not reflected in orange because it wasn't
20 significant to you as a violent episode?
21 A. Actually, it's not reflected in any color because I
22 think it is both, and I did not have a way of representing both
23 colors on this particular chart. And so I put it with no color
24 whatsoever because I think that it is both his job, which was
25 significant to him as a person, and it is red as violent. I did
748
1 not put --
2 Q. Where is it red as violent, that's what I don't
3 understand?
4 A. I didn't put it in any color.
5 Q. You had no trouble circling Mark's attempted suicide,
6 putting a circle around it and drawing that red, you had no
7 trouble doing that, did you?
8 A. I had no trouble doing that, because that did not
9 represent two different things at the same time.
10 Q. Do you know that after he, quote, negotiated the plea
11 for the counts of cruelty to children, that he was put on
12 probation?
13 A. Yes, I do know that.
14 Q. And where on your chart is it reflected that he was put
15 on probation?
16 A. It is not reflected on the chart anywhere as is none of
17 the other -- he was put on probation I believe yet another time,
18 and that isn't represented.
19 Q. So the fact that he was put on probation twice in his
20 adult life was not a fact that was significant to you enough so
21 that you would put it on the chart?
22 A. I had to select what I had room to put on the chart, and
23 I didn't select that.
24 Q. How much room would it have taken to put an arrow like
25 you have here showing that the defendant was put on probation on
749
1 two occasions?
2 A. With the criminal records, I suppose I could have done
3 that. I didn't know that it was going to be a factor. It is a
4 part of the criminal record and a part of what has been entered,
5 I believe.
6 Q. Did you ever talk to his probation officers?
7 A. I did not talk to his probation officers.
8 Q. Why not?
9 A. I called down there several times and couldn't find
10 them.
11 Q. Did you ever talk to any probation officers in North
12 Carolina?
13 A. No, I did not.
14 Q. Why not?
15 A. I was talking to other people.
16 Q. Uh-huh. You have listed in 12-93 in red an altercation
17 over Alesha at Bojangles', second degree trespass, Mark taken to
18 the emergency room with head and elbow injuries, do you see
19 that?
20 A. I do, on Page 11.
21 Q. Now, you know that that actually didn't happen in
22 December, rather it happened in November, correct?
23 A. It happened at the very end of November and the
24 beginning of December.
25 Q. Well, it actually happened November 12th, did it not?
750
1 A. No, that was a different incident.
2 Q. Oh, really? What happened on November 12th that is
3 different than the Bojangles' incident?
4 A. I need to refer, I believe, to my records for that.
5 What I remember from the records is that there was one incident
6 where he went into the house and --
7 Q. When you say went into the house --
8 MR. WILLIAMS: Objection, Your Honor, he is
9 interrupting.
10 THE COURT: Excuse me just a minute. He is asking what
11 she means by went into the house.
12 THE WITNESS: Went into the home where Alesha Chambers
13 was staying at the time.
14 BY MR. CONRAD:
15 Q. Kicked in the door?
16 A. I believe he did kick in that door, yes.
17 Q. Took her away?
18 A. Yes.
19 Q. Would it surprise to you to learn that that happened on
20 November the 8th?
21 A. Actually, that was a very chaotic time in Mark's life --
22 Q. No, I'm --
23 A. -- and it wouldn't surprise me.
24 Q. But, I mean, you investigated all of this, you looked at
25 police records, you came up with a life chart, and you're
751
1 telling this jury that on November 12th, Alesha is pregnant,
2 Mark is charged with second degree kidnapping and three counts
3 of assault with a deadly weapon?
4 A. Yes.
5 Q. And what incident are you referring to you when you put
6 that on the chart?
7 A. I was referring to the incident that you were speaking
8 of.
9 Q. The November 8th incident?
10 A. November 8th, that's a fine date for me, November -- in
11 November of 1993.
12 Q. November 8th of 1993?
13 A. That's fine.
14 Q. And you know that he went to jail for that?
15 A. Yes.
16 Q. And that's not reflected on your chart, is it?
17 A. He was charged with second degree kidnapping, three
18 counts of assault with a deadly weapon.
19 Q. You know he got out of jail a couple of days later and
20 assaulted Ms. Chambers at the Bojangles' on November 12th, you
21 know that, don't you?
22 A. That -- within the span of just a few days, yes, and I
23 think that that is reflected on the chart, and I do have that he
24 went to jail under the December event.
25 Q. Right. But you now know the December event actually
752
1 occurred November 12th?
2 A. That is very likely.
3 Q. Now, you referred to it as a, quote, altercation. You
4 actually know that he held a knife to Alesha Chambers' throat
5 and threatened to kill her, correct?
6 A. I think that's -- yes, that's what happened. There
7 were --
8 Q. Is that what you mean when you use the
9 word "altercation", that the defendant held a knife to someone's
10 throat and threatened to kill her?
11 A. Basically, yes. There were -- if I can explain just a
12 little bit, there were other people involved in that incident,
13 and so it was bigger than just holding a knife to somebody's
14 throat. It was an altercation.
15 Q. It was much bigger than that. You know as well that the
16 defendant took that knife and started swinging it at other
17 people, you know that, too, don't you?
18 A. From reading the criminal records, yes, I do.
19 Q. Did you ever talk to those witnesses?
20 A. I did not.
21 Q. Did you talk to Brent McCrickard, an eyewitness from
22 T.K. Tripp?
23 A. I need to go back. I did talk to Alesha Chambers at
24 length.
25 Q. Did you talk to Brent Casey McCrickard?
753
1 A. No, I did not.
2 Q. Had you talked to her, would you have learned that the
3 defendant swung a knife at --
4 MR. LAUGHRUN: Objection, Judge, it's entirely
5 speculative.
6 THE COURT: Overruled.
7 MR. LAUGHRUN: Had she talked to her, Judge?
8 THE COURT: Had she talked to her, overruled.
9 THE WITNESS: Can you repeat the question, please?
10 BY MR. CONRAD:
11 Q. If you had talked to Ms. McCrickard and she had told you
12 she was an eyewitness to the defendant swinging a knife at
13 several people, would you have put that on the chart?
14 MR. LAUGHRUN: Objection, it's speculation, Your Honor.
15 THE COURT: Overruled.
16 THE WITNESS: I think that I would have put on the chart
17 exactly what I have here, because I can't put everything on the
18 chart, it's a summation.
19 BY MR. CONRAD:
20 Q. You'd just call it an altercation and leave it at that?
21 A. I would.
22 Q. Now, you said that Mark was taken to the emergency
23 room. Did you list anywhere on the chart that Mark was taken to
24 jail?
25 A. Yes, right underneath it.
754
1 Q. This little tiny white box indicating jail?
2 A. That's correct.
3 Q. Now, on 3-25-94 you indicate, Mark charged with first
4 degree rape and first degree kidnapping of Alesha Chambers,
5 later dropped?
6 A. That's correct.
7 Q. But you don't put that in red?
8 A. It was later dropped.
9 Q. Well, you have several -- strike that. So you don't put
10 something in red unless there is a conviction that results from
11 it, is that correct?
12 A. No, I think I have several things -- let me look. If a
13 conviction -- yes, I think that in this situation, I do wait for
14 a conviction of some charges. Some of the times, some of these
15 charges that I have put in red are dropped or he is convicted of
16 a lesser offense. For instance, what I indicate as 11-12-93 and
17 what you tell me was 11-8-93 with the arrow, he was later
18 convicted of lesser charges.
19 Q. He was convicted by a jury beyond a reasonable doubt,
20 correct?
21 A. Yes.
22 Q. Now, you had no trouble putting in red, Mark runs away
23 from home, even though that's not a conviction?
24 A. Can you tell me what page we are on now?
25 Q. I will just point right here to right before 1980, Mark
755
1 runs away from home and tells police his father beat him, that
2 was put in red even though there is no conviction?
3 A. That was put in red because a child running away from
4 home is --
5 Q. A crime of violence?
6 A. He said his father beat him.
7 Q. Was his father convicted of it?
8 A. No, I put Mark's convictions in red. I didn't put other
9 people's convictions.
10 Q. The only information you have that Mark ran away from
11 home is that his father beat him was from Mark?
12 A. No, I had that information from his father and I had
13 that information from his mother.
14 Q. On this particular --
15 A. And I had that information from his little brother.
16 THE COURT: Wait just a minute, let her finish and then
17 you can ask a question.
18 BY MR. CONRAD:
19 Q. The red circle you have right before 1990, Mark runs
20 away from home, tells police his father beat him, what
21 specifically do you know about that incident?
22 A. I had been told about that incident by Mark.
23 Q. What did he tell you?
24 A. He went into great depth about why he ran away from
25 home. He was afraid to go home because of the grade that he
756
1 had. And so he went home, nobody was at home when he would come
2 home from school, and he went in, thought about it, thought
3 about what was going to happen because of that grade. And he
4 drew me a map to the house that he went to up the street and
5 told me what he had for dinner that night at that other house,
6 told me that the police came, talked to the man at that house,
7 told me that the police left, and then his father came up there
8 to pick him up and he hid under the bed and they had to go into
9 this friend's bedroom and drag him out from under the bed.
10 Sonia then told me --
11 Q. Mark ran away because he was afraid his father might
12 beat him for grades?
13 A. Yes.
14 Q. And that's sufficient for you to put it in red even
15 though there is no conviction,, but you don't put in red the
16 fact that he is charged with first degree rape, correct?
17 A. Now, the charge of first degree rape --
18 THE COURT: Wait, Ms. Maxwell, answer the question yes
19 or no and then you can explain.
20 THE WITNESS: Could I get a clarification as to what
21 page that -- is that still on Page 11 that we were talking
22 about?
23 MR. CONRAD: It's on Page 12.
24 THE WITNESS: I did not put that in red, and if I may
25 explain again. It is not put in red, because it was later
757
1 dropped.
2 BY MR. CONRAD:
3 Q. Now, you indicated you talked to Alesha Chambers?
4 A. Yes.
5 Q. She must have told you that shortly before that, Mark
6 hit her with a baseball bat causing stitches to her arm?
7 A. Actually, she didn't tell me that.
8 Q. So the reason that incident is not on here, that act of
9 violence, is because Alesha Chambers didn't tell you about it?
10 A. Right.
11 Q. Did Mark tell you about it?
12 A. I don't think he did, no.
13 Q. Now, you know that at this time when these acts are
14 occurring that the defendant is on probation, correct?
15 A. Yes.
16 Q. Now, you have an entry for 5-24-95 in which --
17 A. Page 13?
18 Q. -- you have circled in red, Page 13, circled in red,
19 Robin almost cuts off Mark's finger?
20 A. That's correct.
21 Q. There wasn't a conviction for that, was there?
22 A. There was no conviction for that, no.
23 Q. But that didn't keep you from circling it and painting
24 it red, did it?
25 A. No, it didn't keep me from doing that, because I had the
758
1 medical records.
2 Q. Tell the jury about what medical records, if any, you
3 gathered in this case.
4 A. Actually, I had great difficulty gathering records in
5 this case.
6 Q. I'd actually like for you just to tell the jury what
7 medical records you gathered.
8 A. Okay. I gathered the Carolinas Medical Center records
9 for the gunshot wound that Mark suffered January 31st, 1995. I
10 gathered the Roanoke medical records with the initial finger
11 incident where his finger was cut, May 24th, 1995.
12 Q. The incident you have on your chart, Robin almost cut
13 off Mark's finger?
14 A. That's the incident. The reinjury of his finger on
15 May 30th, 1995. The Charlotte pediatric records and Family
16 Practice of Lithonia, Georgia medical records were put into the
17 expert's notebook that I compiled as they were interviewing
18 Mark.
19 Q. And are all of those medical records contained in a
20 notebook that appears before you?
21 A. These are not all of the medical records we have,
22 though.
23 Q. What other medical records do you have?
24 A. We had the -- these are all of the medical records we
25 had on Mark.
759
1 Q. Right, and that's what I'm asking about.
2 A. Okay.
3 Q. What medical records did you obtain concerning the
4 defendant, Aquilia Marcivicci Barnette?
5 A. These are the medical records we have.
6 Q. All of the medical records that you gathered contained
7 in that notebook which says expert's notebook attorneys?
8 A. Correct.
9 MR. CONRAD: All right, let me mark that for
10 identification, Your Honor, I'm not sure what number, but I'm
11 going to call it 70.
12 THE COURT: Well, let's see, Number 69, that's right, it
13 would be 70.
14 BY MR. CONRAD:
15 Q. Which is a notebook labeled expert's notebook attorneys,
16 and it's your testimony here today that the medical records you
17 gathered in this case related to Aquilia Marcivicci Barnette are
18 all in that notebook?
19 A. Correct.
20 Q. And you -- did you send those medical records to the
21 various experts in this case?
22 A. I sent them to the defense experts.
23 Q. Okay. And did you send any other medical records other
24 than what is in the binder labeled Government's Exhibit 70
25 related to the defendant?
760
1 A. I faxed to them the birth records.
2 Q. I'm just talking about medical records.
3 A. Okay, no.
4 Q. Now, you indicated that your review of the medical
5 records contained in Government's Exhibit 70 enabled you to draw
6 a circle, color it red and put 5-24-95, Robin almost cuts off
7 Mark's finger, correct?
8 A. Also my interviews.
9 Q. I would ask you to turn to Government's Exhibit 70 and
10 find for the jury where it is in that exhibit that there is any
11 indication at all in those medical records that Robin almost cut
12 off Mark's finger.
13 A. The only indication that is there is that Mark went to
14 the Roanoke hospital with a severely cut finger.
15 Q. There is no indication at all in those medical records,
16 is there, that Robin cut that finger?
17 A. Not that Robin cut the finger, no, not in these records.
18 Q. In fact, the defendant was asked how his injury occurred
19 and he never once in any of those medical records indicated that
20 Robin cut his finger?
21 A. Not in these records.
22 Q. So when you told the jury earlier that you had the
23 medical records and as a result you could write, Robin almost
24 cut off Mark's finger, that was incorrect?
25 A. No, sir.
761
1 Q. Well, you now are testifying that that circle comes from
2 something other than the medical records, correct?
3 A. My interview.
4 Q. Thank you. Now, you have entries 9-29-95 and 12-31-95
5 that Angelica is five and little Mark is four, correct?
6 A. Yes.
7 Q. And those are significant there because they are
8 significant events in the defendant's life?
9 A. Correct.
10 Q. Is there any indication in your chart that the defendant
11 ever went down to Newnan, Georgia to see Angelica or little
12 Mark?
13 A. Yes.
14 Q. There is?
15 A. Ask the question again.
16 Q. In your efforts in this case, your 200, 300 hours, is
17 there any indication at all that this defendant ever went down
18 to Newnan, Georgia to see Angelica or little Mark?
19 A. He lived with them for a while.
20 Q. Well, and when he moved out and came to Charlotte, is
21 there any evidence in your 200, 300 hours that you put in this
22 case that he ever went back to Newnan, Georgia to see his
23 children?
24 A. No. What happened was, if I can explain that, what
25 happened was the children were brought up here.
762
1 Q. One time?
2 A. One time.
3 Q. For one month?
4 A. My information says that it was more than one month.
5 Q. But anyways, in 1995 when you have these entries, they
6 are entries because they are significant in the defendant's
7 life, but you have no evidence that he had any contact with
8 those children at all on that occasion, correct?
9 A. On the occasion of their birthdays?
10 Q. Where you have listed on the chart significant events in
11 the defendant's life, there's no evidence that he did as much as
12 send a card on those days to those children?
13 A. No evidence that he sent a card, no.
14 Q. Called or visited or did anything on those days?
15 A. I first got these out of his daytimer. For what it's
16 worth, he did have it indicated in the daytimer.
17 Q. 4-11-96, you have colored in green, which means a move,
18 that Mark is kicked out by Robin and must return to Charlotte,
19 do you see that entry, Page 14?
20 A. I do.
21 Q. Is there any indication in there that he took Robin's
22 car and locked her out of the apartment on 4-11-96?
23 A. No, there is not, and --
24 Q. Did you become aware that, in fact, he took Robin's car
25 and drove it to Charlotte after he got kicked out?
763
1 A. Yes, I knew that.
2 Q. 5-21-96, you have listed in white the purchase of a
3 gun. Was that the purchase of the murder weapon in this case?
4 A. I think that it was, yes.
5 Q. Do you have any -- any indication here that the
6 defendant provided false information to require that murder
7 weapon?
8 A. No, I think that's in evidence, though.
9 Q. It's what?
10 A. I think that's already been put in evidence.
11 Q. Any indication on this life line of significant events
12 in the defendant's life that the day before, he purchased
13 another pump shotgun?
14 A. That is not on this life line.
15 Q. Why isn't it on the life line?
16 A. I couldn't include everything, and I thought that the
17 purchase of that gun was more significant than the purchase of
18 the other.
19 Q. Did you even know about the purchase of the first gun?
20 A. I became aware of it later on.
21 Q. And when did you become aware of it?
22 A. I don't know exactly.
23 Q. You don't remember?
24 A. Not exactly.
25 Q. Did you become aware of it as a result of discovery
764
1 produced in this case and not as a result of anything that the
2 defendant or anybody else in the defense team told you?
3 A. I did become aware of it as a result of discovery, yes.
4 Q. The defendant never told you he purchased two illegal
5 weapons, did he, or illegally purchased two weapons, never told
6 you that, did he?
7 A. No.
8 Q. And he never told you, or did he tell you that between
9 the fire bombing and the murder that he had gone up to Roanoke,
10 Virginia, did he ever tell you that?
11 A. No, he did not.
12 Q. Did he ever tell you that he left cards on the
13 windshield of Robin Williams' car after he fire bombed her
14 apartment and she went to UVA hospital for skin grafts, did he
15 ever tell you that?
16 A. No.
17 Q. If he had told you that, would that have been
18 significant enough to put on the time line?
19 A. I probably would have tried to somehow put it in there
20 with an arrow.
21 Q. Now, he did tell you, did he not, that he sawed off the
22 shotgun that he illegally purchased on May 21st?
23 A. Yes.
24 Q. Where is that on the time line?
25 A. That is not on the time line.
765
1 Q. The commission of a federal felony is not significant
2 enough to be put on the time line, is that correct?
3 A. I think that it's a significant point, however, I think
4 more significant are the murders, and they are on --
5 Q. The murders that you have in a little red circle, about
6 the size of a red circle that says, Mark attempted suicide and
7 goes to church, those are the events that you think are more
8 significant?
9 A. The size of the circles have nothing to do with the
10 significance.
11 Q. Now, you had plenty -- this life line is three rows long
12 and you had plenty of opportunity to put, Mark is in the seventh
13 grade at Randall Junior High School and circle it in green, but
14 you don't have enough room to put in the fact that he sawed off
15 the barrel of a shotgun and committed a federal felony, you
16 don't have enough room for that?
17 A. I thought that in the synopses, that that was
18 encompassed in the murders.
19 Q. You have an entry for 6-25-96 in which you indicate, the
20 defendant turns himself in to the FBI. Where is it on the time
21 line do you have an entry that he stole a license plate in
22 Knoxville, Tennessee?
23 A. This is not a detailed account of his life. His life
24 was detailed in the life history, and this is just a way of
25 helping and organizing information for the jury, for us, so that
766
1 we can have some kind of perspective on what was going on when.
2 Q. A detail such as, Mark is enrolled in Beverly Woods
3 Elementary, Sonia begins working at State Farm Insurance,
4 Charlotte are significant enough to put on this chart, but his
5 stealing a license plate is not significant enough to do that?
6 A. That was all part of the murder and suicide and turning
7 himself in to the FBI.
8 Q. Uh-huh. The same with scraping an inspection sticker
9 off of the car?
10 A. That's correct.
11 Q. No need to put that on the time line?
12 A. It all happened in the same event.
13 Q. Driving a stolen car from Charlotte to Roanoke to
14 Knoxville, Tennessee to Charlotte again, committing the federal
15 felony of interstate transportation of stolen property, that's
16 not significant enough to put on the time line?
17 A. That is on the time line under the Donald Allen and
18 Robin Williams.
19 Q. Show me where that is.
20 A. It is encompassed in the same event is what I'm saying.
21 Q. And it includes future events after Robin is killed and
22 he drives to Tennessee and he drives back, that's all
23 encompassed in that?
24 A. In my opinion.
25 Q. Where is it on the time line that the defendant called
767
1 his cousin Shondra Nero from Tennessee and was told that the FBI
2 was at his mother's house, where is that?
3 A. It is not on there.
4 Q. Where is it that he hid the car behind the shopping
5 center, having driven back to Charlotte with stolen license
6 plates and scraped off the inspection sticker, not on there?
7 A. No.
8 Q. How about dumping critical evidence in the dumpster,
9 including the shotgun and other evidence, is that on the time
10 line?
11 A. I did not diagram the events of the murder and directly
12 before and directly afterwards. I did indicate the loss of
13 these two lives on this life line.
14 Q. In that one circle on this three-row life line?
15 A. Right.
16 MR. CONRAD: That's all I have, Your Honor.
17 THE COURT: Redirect?
18 REDIRECT EXAMINATION
19 BY MR. WILLIAMS:
20 Q. Just one question, Ms. Maxwell, just to sum this up.
21 Your purpose in preparing this life line for lawyers and the
22 experts and this jury was simply, or was it, to illustrate the
23 life of Mark Barnette and was not prepared for the purpose of
24 putting every single item of his life in that one document, was
25 it?
768
1 A. I could not do that.
2 Q. You had those itemized events in your life history which
3 was written, is that correct?
4 A. That's correct, it was 32 pages.
5 MR. WILLIAMS: No further questions.
6 MR. CONRAD: Just one, Your Honor.
7 RECROSS-EXAMINATION
8 BY MR. CONRAD:
9 Q. Your purpose of doing this was to present the picture of
10 the defendant's life that you wanted the jury to see and the
11 defense attorneys to see, correct?
12 A. I illustrated it to the best of my ability.
13 MR. CONRAD: That's all I have.
14 MR. WILLIAMS: No further questions.
15 THE COURT: Thank you, ma'am. Is your next witness long
16 or short?
17 MR. WILLIAMS: The next witness is a little lengthy, and
18 going to be our last live witness.
19 THE COURT: In that case, we will go ahead and take the
20 morning recess a little early because we don't want to get right
21 in the middle of the next witness. Do not discuss the case
22 among yourselves.
23 Now, one thing I forgot to ask you again this morning,
24 have any of you seen -- you can step down, Ms. Maxwell.
25 THE WITNESS: Okay.
769
1 THE COURT: Have any of you seen, heard or read anything
2 overnight or talked to anybody about this case overnight in any
3 way.
4 (Jurors shake heads.)
5 THE COURT: I take it you have not. Thank you so much.
6 Do not discuss the case among yourselves while you are out,
7 please.
8 (The jury left the courtroom.)
9 MR. WILLIAMS: May I move this, Your Honor?
10 THE COURT: Yes, sir. Recess until 10:40.
11 (Brief recess.)
12 THE COURT: Did somebody want to talk about something?
13 MR. CONRAD: Your Honor, may I be heard on a couple of
14 matters before the next witness takes the stand?
15 THE COURT: Yes, sir.
16 MR. CONRAD: The first matter I would like to be heard
17 on is I think the Court is about ready to hear expert testimony,
18 and we intend to present expert testimony as well. And I should
19 have done this yesterday and I omitted to do it, but I would ask
20 the Court the give an instruction to the jury with respect to
21 expert testimony. You have done that before in the guilt phase
22 of a trial, and I filed a -- I just now have filed a request to
23 instruct the jury as to what an expert -- what weight the jury
24 may give to expert testimony. It's exactly the same instruction
25 you gave during the guilt phase of the trial, and I would ask
770
1 the Court to assist the jury by giving that instruction.
2 THE COURT: All right, let me see what you've got here.
3 MR. WILLIAMS: Well, we would object, Your Honor, simply
4 as to the instruction being given at this time. Certainly at
5 the appropriate time during jury instructions, that would be
6 appropriate, but to do it now, it would emphasize this
7 particular witness. It would put an emphasis on this particular
8 witness, and I think it would be inappropriate. It was not done
9 on other witnesses, and I just ask that you give that
10 instruction at the end of the case.
11 THE COURT: Well, let me see what it says. Is it the
12 usual routine instruction?
13 MR. CONRAD: Yes, sir. It's the instruction you gave
14 during the guilt phase of the trial.
15 THE COURT: Who is this witness?
16 MR. WILLIAMS: It's Dr. Mark Cunningham, Your Honor.
17 MR. CONRAD: And it's not directed at him, Your Honor.
18 I should have asked you to do it yesterday when the other two
19 experts testified and I just forgot about it. Dr. Cunningham is
20 going to testify and we're going to have an expert testifying in
21 rebuttal, and I think it would help the jury to be reminded of
22 the purpose of expert testimony in this case.
23 THE COURT: Why is it necessary, Mr. Conrad? I mean,
24 I'm going to give the same thing, they've heard it before. I
25 just don't see why it's necessary.
771
1 MR. CONRAD: I think they were instructed in the guilt
2 phase, but they haven't been instructed on that point in the --
3 THE COURT: Well, I will give them an instruction at the
4 end of the case, but I really don't think it's necessary to do
5 that now. I don't know why the defendant is objecting, I don't
6 see what difference it makes, but, I mean --
7 MR. WILLIAMS: Well, I think it just -- I would rather,
8 Your Honor, do it at the appropriate time.
9 THE COURT: All right, sir, I will sustain the
10 objection.
11 MR. CONRAD: Your Honor, I have a second motion in
12 limine concerning the testimony of Dr. Cunningham if I could be
13 heard on that.
14 THE COURT: All right, sir, let me see what this is.
15 MR. CONRAD: Your Honor, I have reviewed a transcript of
16 Mr. Cunningham's testimony in the case United States v. Hardy,
17 et al., 94381, Eastern District of Louisiana, April 30th, 1996.
18 In that case, and I have got a transcript attached to the back
19 of my motion, at the bottom of the transcript page, the
20 defendant, this expert witness testified, clearly he is
21 personally responsible, he will spend the rest of his life in
22 federal prison, that is a just sentence. Your Honor, this
23 witness has no business testifying to such a conclusion.
24 THE COURT: Is he in the courtroom, is he here?
25 AGENT MODZELEWSKI: Yes, sir, I think.
772
1 THE COURT: Dr. Cunningham, you do not give that
2 statement, do you understand that?
3 UNIDENTIFIED SPEAKER: Yes, sir.
4 MR. CONRAD: Thank you, Your Honor.
5 THE COURT: The statement was, clearly he is personally
6 responsible, he will spend the rest of his life in federal
7 prison, this is a just sentence. That's not for you to decide
8 and not for me decide, do you understand that?
9 UNIDENTIFIED SPEAKER: Yes, sir.
10 THE COURT: All right, thank you.
11 MR. CONRAD: Thank you, Your Honor. The second part of
12 that motion deals with what I anticipate this witness to testify
13 to. I've reviewed prior transcripts, and he spends a great deal
14 of time talking about a high security prison facility in
15 Colorado Springs, near Colorado Springs, Colorado called ADX.
16 In the course of that testimony, he shows a number of
17 photographs of a prison cell at this facility, and the
18 photographs are of such things as anchored toilets and other
19 security measures at that institution.
20 This witness is not a Bureau of Prisons official, has
21 never worked within a penal institution, does not have firsthand
22 knowledge of classification or designation procedures, and that
23 type of testimony does not fall within the purview of a forensic
24 psychologist. And Your Honor, the point of my motion is unless
25 the defendants can show that, in fact, this defendant would be
773
1 sentenced and sent to the prison facility in Colorado Springs,
2 Colorado, then that testimony confuses the jury, it misleads
3 them, and that confusion and misleading outweighs any probative
4 force of the testimony.
5 I would ask the Court to prohibit this defendant from
6 talking about the ADX facility at all unless the defense can
7 show that this defendant is going to be sent there, and I don't
8 believe they can show that.
9 THE COURT: All right, sir.
10 MR. WILLIAMS: If Your Honor please, I have for Your
11 Honor a book which is marked Defendant's Exhibit 59 which shows
12 the illustrations that are going to be used by Dr. Cunningham in
13 his presentation to the jury. I have already provided those and
14 additional overheads to the government.
15 The reference the government makes is part of
16 Dr. Cunningham's presentation as an expert in risk assessment
17 where he's testified on six or seven, at least six or seven
18 occasions in Federal Court qualifying as an expert in forensic
19 psychology in the evaluation of risk assessment. And in that
20 presentation, there are references with regard to the
21 available -- the availability of different types of maximum
22 security in the federal prison system, and it's clearly relevant
23 to the issue of future dangerousness that the government has
24 alleged in its notice alleging that this man, our client, will
25 be a future danger and the only position and situation that
774
1 could be created for him where he is sentenced to life, that
2 would be in federal prison. In other words, the jury has a
3 right to know that in federal prison, if he were given a
4 sentence of life without the possibility of release, that there
5 are different types of custodial and security type prisons
6 anywhere from a U.S. minimum security prison to an ADX Florence
7 control unit maximum security units, one of which is the
8 administrative maximum in Florence, Colorado which he -- which
9 is in this book. I will be glad to tender it to the Court so
10 you can look at this overhead.
11 THE COURT: That's all right, I've got it.
12 MR. LAUGHRUN: And would testify that he has been in
13 that prison. I believe he's been in that particular prison.
14 UNIDENTIFIED SPEAKER: Yes, I have.
15 MR. WILLIAMS: That he has viewed these particular
16 cells, he has viewed this particular prison and has firsthand
17 knowledge of what the security measures are in that particular
18 maximum security prison. It's an offering of, ladies and
19 gentlemen of the jury, here is an inmate that's going into the
20 prison system that has within the federal prison system
21 available different types of security, and this is one of the
22 maximum types of security that would be available to him.
23 Now, or available, that's up to the federal prison
24 system, but I think the jury clearly has the right to know what
25 they can expect, what is there in the federal prison system when
775
1 the government has alleged and has the burden to prove beyond a
2 reasonable doubt that he is going to be a danger in the future
3 in the prison system of the federal system, and I think that's
4 clearly relevant, particularly since he has firsthand knowledge
5 of it.
6 MR. CONRAD: Judge, he has knowledge of that prison
7 facility, he does not have knowledge of the classification and
8 designation procedures. In order for that testimony to be
9 relevant at all, they have to show that this defendant would be
10 sent to that prison facility. Without being able to show that,
11 the information is prejudicial, it's confusing and it's
12 misleading, and they shouldn't be entitled go into it.
13 MR. WILLIAMS: You see, the problem, Your Honor, is that
14 the government doesn't want this jury to know, I respectfully
15 argue, that there are maximum security units within the federal
16 prison system. If the Federal Bureau of Prisons decides that
17 this man is a maximum risk, is something in the system available
18 for a security measure to protect society and to protect others
19 and put him in that position. Now, that's something that this
20 jury ought to have the available information to make a decision
21 on life or death in this particular case. Otherwise, the
22 government is attempting to hide from them these available
23 maximum security measures.
24 THE COURT: I disagree with you. I think that the --
25 MR. LAUGHRUN: May I add something briefly?
776
1 THE COURT: Yes, sir.
2 MR. LAUGHRUN: There is also a perception by the public
3 of federal prisons that they are just like Seymore Johnson,
4 they're just like Maxwell Air Force Base, that they go down and
5 they play tennis, you know, that they sit out in the sun, go
6 boating. That's the perception some people have of federal
7 facilities. Now, if this defendant is sentenced to life, three
8 life terms plus 400 years, he is not going to a club fed, he is
9 going to go to a level one or an administrative unit. That's a
10 fact of life. And sure, it's up to BOP to designate him, and
11 the government is free to cross-examine Dr. Cunningham about
12 that. Sure, the designation is up to BOP. We have a right to
13 present that, that he is not going to a club fed down in
14 Montgomery, Alabama or Seymore Johnson Air Force Base or
15 whatever.
16 MR. CONRAD: Judge, my point is they could have brought
17 that kind of witness, they could have brought a Bureau of Prison
18 official here to talk to the jury. They couldn't be able to
19 bring a forensic psychologist from Abilene, Texas to talk about
20 it just because he went and --
21 THE COURT: Well, even if you brought a Bureau of Prison
22 official, he couldn't say where this man is going to be
23 imprisoned and it's really irrelevant. The jury will be
24 instructed that the defendant will be sentenced to life, if he
25 is sentenced to life, that he will never be released, and that's
777
1 the only thing they need to know. We are not going to get into
2 the different prisons, so I'll sustain -- I mean, I'll grant the
3 motion in limine. It's prejudicial, unnecessary, irrelevant,
4 and I'm just not going to instruct them on that or let him
5 testify as to that.
6 MR. WILLIAMS: May I have a moment, Your Honor, to
7 adjust this exhibit in accordance with Your Honor's instruction?
8 THE COURT: Yes, sir.
9 MR. WILLIAMS: Your Honor, we will not ask
10 Dr. Cunningham about the administrative maximum prison unit in
11 Florence, Colorado or show any photographs of any cells. But
12 there is an overhead that deals with custody options dated June
13 1997, and we would ask that we be permitted, and I will be glad
14 to show Your Honor what it looks like if I may approach the
15 bench.
16 THE COURT: All right.
17 (Pause.)
18 THE COURT: Okay, custody options, minimum security,
19 what do you want me to do?
20 MR. WILLIAMS: We just want to be able to tell them what
21 the possible different, with regard to risk assessment, the
22 different types of security prisons that are available, not
23 saying which one he is going to go to.
24 MR. CONRAD: Your Honor, my objection to that is this
25 guy is a forensic psychologist who has no specialty in that area
778
1 whatsoever. The defense could have subpoenaed any Bureau of
2 Prison official to come in here and talk about those kind of
3 custody options.
4 MR. WILLIAMS: Judge, in his expert area of risk
5 assessment, he's written a paper on this. It's been reviewed by
6 his peers. He is extremely well regarded in his profession in
7 the area of risk assessment. Part of his expertise in risk
8 assessment involves assessing the risk, and one way to assess
9 the risk, let this jury know what is going to be going on in the
10 real word with this man when he goes in the prison system, is to
11 tell the jury what is available. We are just not saying where
12 he is going to go, but saying, this is what is available in the
13 Federal Bureau of Prisons. Dr. Cunningham is well aware through
14 his expertise about those options. It's part of his study. I
15 mean, he has reviewed literature after literature after
16 literature. He has reviewed study after study after study on
17 risk assessment. This is all part of his expertise, Your Honor,
18 it's part of the risk assessment.
19 MR. CONRAD: Judge, as a forensic psychologist, he can
20 talk about whether this particular defendant, based upon what
21 he's studied and what research he's looked at, whether he is a
22 future danger, but he has no expertise in the Bureau of Prisons
23 classification procedures, designation procedures, and he
24 shouldn't be allowed to extrapolate from his testimony about the
25 future dangerousness of this defendant to the classification
779
1 procedures and the custody options in the Bureau of Prisons.
2 MR. WILLIAMS: He is not stating his opinion, Your
3 Honor, he is stating a fact. This is fact. These are what the
4 Federal Bureau of Prisons has available for people who go into
5 the system. It's not an opinion.
6 MR. CONRAD: He is not qualified to do that.
7 MR. WILLIAMS: Why is he not qualified as part of his
8 risk assessment expertise to tell them what is, in fact, true
9 based on his own personal knowledge and expertise?
10 MR. CONRAD: Mr. Williams and I could --
11 THE COURT: Wait a minute, are you through?
12 MR. WILLIAMS: I mean, that's -- to simply have an
13 expert come in here and be able to talk about risk assessment
14 and then be shut off and not be able to tell the jury and hide
15 from the jury, well, now I'm telling you about risk assessment,
16 I'm an expert in it, but I don't want to tell you what is
17 available there, we don't want to talk about that. They need to
18 know that, they have a right to know. That's part of the
19 sentencing decision and part of the knowledge that they have to
20 know. Why? Because the government has alleged he is a future
21 danger. We have a right to present evidence, if Your Honor
22 please, to rebut that through an expert who has personal
23 knowledge of those facts.
24 MR. CONRAD: He is not an expert. I mean, Mr. Williams
25 and I could read research and read a book on Bureau of Prisons
780
1 and find out what the custody options are, doesn't make us an
2 expert. He is a forensic psychologist.
3 MR. WILLIAMS: Doesn't need to be an expert.
4 MR. CONRAD: Well --
5 MR. WILLIAMS: To state a fact.
6 MR. CONRAD: He has to be an expert to read the
7 literature and testify to that hearsay. He has to be an expert
8 to do that.
9 MR. WILLIAMS: Your Honor --
10 MR. CONRAD: Mr. Williams and --
11 THE COURT: Wait just a minute.
12 MR. WILLIAMS: I'm sorry, I apologize.
13 MR. CONRAD: As a lawyer, I could read a book on Bureau
14 of Prisons, but I could not get up there on the stand and say,
15 as a result of my reading this book, here are the options. I'm
16 not qualified to do it and neither is this forensic
17 psychologist.
18 MR. WILLIAMS: Your Honor, one last thing, Rule 702 or
19 703 I believe it is of the Federal Rules of Evidence provide
20 clearly that an expert can base part of his opinion, his opinion
21 is going to be in risk assessment, says that the facts or data
22 in the particular case upon which an expert bases an opinion or
23 inference may be those perceived by or made known to the expert
24 at or before the hearing. And if it's something that he's read
25 and had knowledge of, it comes in under 703. 703 also says if a
781
1 type reasonably relied upon by experts in the particular field
2 in forming opinions, which would be on risk assessment, or
3 inferences upon the subject, the facts or data need not be
4 admissible in evidence. So that's something that he is relying
5 on as an expert. Clearly it should come in under 703.
6 THE COURT: Mr. Conrad, I think you could stipulate
7 these are available, couldn't you?
8 MR. CONRAD: I could, I just don't want this man
9 pretending to be an expert on that in front of the jury.
10 MR. WILLIAMS: He is not pretending, Your Honor, he is
11 an expert.
12 MR. CONRAD: I will stipulate that these options are
13 available, I have no problem with that. I don't want a witness
14 who is not qualified to render an opinion to say that. If you
15 will instruct the jury that these options are available, I have
16 no problem with that.
17 THE COURT: Well, he is not going to express an opinion
18 on this, is he, Mr. Williams?
19 MR. WILLIAMS: It's a fact, he is not expressing any
20 opinion. I mean, he is going to be qualified, I think very
21 clearly, as an expert in forensic psychology in the area of risk
22 assessment with regard to, I have the exact language here, and
23 part of that is going to be stating facts as a basis for his
24 opinion. He is net going to give any opinion about the place.
25 We have already been prevented from showing them pictures of
782
1 this facility or any facility. We are just stating, look,
2 ladies and gentlemen of the jury, this is what is available.
3 Now, he is an expert in risk assessment. I just
4 respectfully say to Your Honor, clearly he ought to be able to
5 say that. I mean, there is nothing magic about that.
6 MR. CONRAD: If Your Honor would consider limiting his
7 testimony solely to these options without any further opinion or
8 elaboration, I would withdraw my objection to that.
9 MR. WILLIAMS: Well, I think that's what I understood
10 the Court was instructing us.
11 THE COURT: All right, do that then and we'll go with
12 that, no opinions, just state what is available.
13 MR. WILLIAMS: Yes, sir.
14 THE COURT: All right, ready to go?
15 MR. LAUGHRUN: Judge, can we offer for the record the
16 Defendant's Exhibit I've marked as 59A, the ADX --
17 THE COURT: Oh, yeah, sure.
18 MR. LAUGHRUN: -- information and photographs photograph
19 that Your Honor sustained an objection to?
20 THE COURT: Yes, sir, that's fine.
21 MR. LAUGHRUN: If I could approach the Clerk with that.
22 THE COURT: Are we ready for the jury?
23 MR. WILLIAMS: As I understand, I want to make sure I
24 understand and my expert understands what you are saying, Your
25 Honor, are you -- what he is -- what we are requesting is that
783
1 the jury be allowed to not only list what is available, but to
2 tell the jury in a Super Max situation what it's like. In other
3 words, it involves a single cell bar door and steel door, window
4 faces the inner recreation yard, 23 hour a day lockdown, meals
5 in the cell, double escort, shackled behind the back, one to two
6 15-minute phone calls monthly monitored, no contact visits,
7 glass has one-hour hammer rating monitored, mail is x-rayed,
8 opened and read. He knows that of his own personal knowledge as
9 part of his expertise in risk assessment.
10 I think the jury has a right to know that this isn't a
11 country club, this is what is what we are talking about here and
12 they are having to decide what the sentence is. So I think they
13 have a clear right to know, what are we taking about, are we
14 talking about a prison in the federal system where he is going
15 to go play tennis and go out on passes and he's going to have a
16 nice time, or are we talking about the realities of life as an
17 available possibility in the system.
18 MR. CONRAD: Judge, they want a concession out of the
19 government, they obtained that concession, now they're going
20 back in the back door to talk about this facility that they have
21 no qualifications to talk about. They can't talk about a
22 facility unless they can show that this man is going to be sent
23 to that facility, and that's not through this witness. They
24 could have --
25 THE COURT: Well, we are not talking about any one
784
1 facility.
2 MR. CONRAD: Yes, they are, they're talking --
3 everything Mr. Williams just told you comes from this ADX
4 Florence facility in Colorado Springs, Colorado, and they
5 haven't established that this man is going to be sent there.
6 MR. WILLIAMS: The concern I have, Your Honor, is this:
7 Let's say the jury is back there deliberating on this moral
8 judgment as to what to do in sentencing this man. They go back
9 there and start talking about, well, if we sentence him to life
10 without the possibility of release, what kind of prison is he
11 going to be sent to, what is there available there? And I think
12 that's part of their decision making right to know, and in that
13 process it ought to be told. They ought to have that
14 information available that, you know, if they go back and one
15 juror says, well, gosh what if he gets in the prison system and
16 becomes violent and they've got to find a particular place for
17 this man in the Federal Bureau system, does that place exist?
18 We are simply saying to the jury that kind of place exists if
19 that happens, and I think they have a right to know that in
20 order to make an intelligent decision on a severe, severe moral
21 judgment as this.
22 THE COURT: Well, I think you can say that's what is
23 available in the prisons, but -- and Mr. Conrad, of course, can
24 cross-examine him as to facts that he doesn't know where he is
25 going to be sent.
785
1 MR. WILLIAMS: He can do that, sure.
2 THE COURT: In fact, I could always tell them that
3 myself, because I never have been able to direct anybody
4 anywhere.
5 MR. WILLIAMS: All right, sir.
6 THE COURT: All right, ready to go. Call the jury.
7 (The jury returned to the courtroom.)
8 THE COURT: Members of the jury, the heat is supposed to
9 be on, so hopefully you can take off your coats sometime during
10 this session, but don't plan on it until you get the heat.
11 All right, call your next witness.
12 MR. WILLIAMS: Thank you, Judge Potter, the defense
13 calls Dr. Mark Cunningham.
14 MARK DOUGLAS CUNNINGHAM,
15 being first duly sworn, was examined and testified as follows:
16 DIRECT EXAMINATION
17 BY MR. WILLIAMS:
18 Q. Will you please tell the ladies and gentlemen of the
19 jury your name?
20 A. Mark Douglas Cunningham.
21 Q. Please try and remember that if you get too close to
22 that microphone, you get a kickback.
23 A. Yes, sir.
24 Q. Where do you live?
25 A. I live in Abilene, Texas.
786
1 Q. And how long have you lived in Abilene, Texas?
2 A. Since 1981.
3 Q. And what is your current status?
4 A. I'm a clinical and forensic psychologist in private
5 practice.
6 Q. And what is a clinical psychologist?
7 A. A clinical psychologist is a psychologist who evaluates
8 and treats emotional disorders through testing and
9 psychotherapy, counseling, couples therapy. A forensic
10 psychologist is a psychologist who applies psychological
11 research and techniques to legal issues, things like child
12 custody determinations in a family law arena, or in a civil
13 case, evaluating psychological injuries that someone might have
14 sustained, in a criminal arena, evaluating questions of
15 competency to stand trial or mental state at time of offense, or
16 competency to weigh various rights or sentencing determination
17 issues such as we are talking about today.
18 Q. Would you tell the ladies and gentlemen of the jury what
19 your education is, please, sir?
20 A. Sure. I got my undergraduate degree, my Bachelor's
21 Degree from Abilene Christian College, it's now Abilene
22 Christian University, and that was in 1973. My majors were in
23 mass communication and also in psychology, and I graduated with
24 high honors there. I then attended a doctoral program in
25 clinical psychology at Oklahoma State University, and that
787
1 training was accredited by the American Psychological
2 Association as a doctorate training program in clinical
3 psychology, and received both my Master's and Ph.D. from
4 Oklahoma State in clinical psychology.
5 I then did a one-year clinical psychology internship at
6 the National Naval Medical Center in Bethesda, Maryland while I
7 was also an active duty naval officer, and then served as a
8 staff psychologist at the Naval Submarine Medical Center in
9 Groton, Connecticut and while there did a couple of years of
10 postdoctoral study at Yale, and have participated very actively
11 in continuing education since that time as well.
12 Q. Are you board certified?
13 A. Yes, I am.
14 Q. Would you tell the ladies and gentlemen of the jury what
15 it means to be board certified?
16 A. Well, I am a diplomate of the American Board of Forensic
17 Psychology, which is a subspecialty board of the American Board
18 of Professional Psychology. The steps that are involved in
19 becoming board certified in forensic psychology within this
20 organization require you to have at least five years of
21 experience after your Ph.D. You have to have a significant
22 number of hours in specific forensic practice. You make
23 application and they do a licensing and ethics check and that
24 sort of thing, and then if you are allowed to submit an
25 application, you submit a work sample which is a scholarly work
788
1 product.
2 You send a couple of examples of your work along with
3 relevant research and case law to demonstrate your familiarity
4 with these forensic issues and research that might be associated
5 with them, and that work product is critically evaluated by
6 other board certified forensic psychologists. And if that's
7 deemed acceptable, you are allowed to sit for an oral exam that
8 is about a three-hour exam. It's administered by three people,
9 three board certified psychologists in this forensic area who
10 examine you about both the areas that you focus on in a more
11 specialized way as well as the whole breadth of the field of
12 forensic psychology.
13 Q. What is the failure rate of that oral examination?
14 A. Historically the failure rate of the oral exam has been
15 about 40 percent.
16 Q. Is that throughout the United States?
17 A. That's correct.
18 Q. How many board certified forensic psychologists are
19 there in the United States?
20 A. Less than 200.
21 Q. Are you one of them?
22 A. Yes, I am.
23 Q. Will you tell the jury about your past experience
24 professionally, that is, with regard to academic appointments
25 and clinical experience?
789
1 A. Yes, I will. I was teaching assistant during my
2 graduate training at Oklahoma State and instructed classes in
3 introductory psychology, and was also a teaching assistant and
4 coordinated the lab of an individual intelligence testing class
5 that was taught at the graduate level. There was a professor
6 who taught the class. I handled the lab part of that under his
7 direction.
8 My first professional appointment was as a staff
9 clinical psychologist at the Naval Submarine Medical Center
10 where I was stationed for about three and a half years in
11 Groton, New London, Connecticut. I left the Navy in 1981 and
12 returned to Abilene and for a couple of years was a full-time
13 assistant professor of psychology at Hardin Simmons University
14 and started a part-time practice during those same years. In
15 1983, I resigned that academic position and was just in
16 full-time private practice and have been in full-time practice
17 since 1983.
18 Q. Now, what professional publications do you have,
19 Dr. Cunningham?
20 A. I have three publications that have been accepted or
21 have been published and peer reviewed.
22 Q. What does peer reviewed mean?
23 A. Well, peer reviewed means that -- it's a scientific
24 journal, and when you send a research study or a paper into it,
25 then they send that paper out to review with people who are
790
1 experts in that area. And they evaluate whether or not your
2 methodology is sound and whether this is deemed of sufficient
3 scholarly significance and has been appropriately done to be, in
4 fact, published as a paper in a scientific journal.
5 The first paper that I had published in that way was my
6 dissertation that had to do with the area of learning
7 disabilities. More recently, I have two papers that are in
8 press with the Journal of Behavioral Science and the Law, which
9 is one of the primary forensic psychology journals.
10 Q. Have any of those publications dealt with violence risk
11 assessments at capital sentencing?
12 A. Yes, they have. The title of one of these papers that's
13 currently in press, in press means it's been accepted and
14 approved and it is in line for one of the publications that are
15 coming up across the coming months, the paper that deals most
16 specifically with risk assessments is entitled, Integrating Base
17 Rate Data in Risk Assessments at Capital Sentencing, in other
18 words, applying actuarial, statistical techniques to evaluations
19 of violence risk or future dangerousness in capital sentencing
20 proceedings. And as I said, that paper is currently in press.
21 Q. All right.
22 A. There is a second paper that involves antisocial
23 personality disorder and psychopathy and the diagnostic dilemma
24 that can be present in a sentencing determination of trying to
25 categorize patterns of antisocial behavior. And so that's a
791
1 second paper that's also in press with Behavioral Sciences and
2 the Law.
3 Q. Does that second paper, does that deal with forensic
4 psychology?
5 A. Yes, it does, in a sentencing determination issue. I
6 would also add that both of these papers are co-authored with a
7 colleague of mine, Dr. Thomas J. Reedy, who is the second author
8 of each of those papers.
9 Q. And what professional affiliations do you have?
10 A. I am a member of the American Psychological Association,
11 I am a fellow of the American Academy of Forensic Psychology
12 which is the scholarly organization of the diplomates in
13 forensic psychology with the American Board of Professional
14 Psychology. I'm a member of the Texas Psychological
15 Association, Abilene Psychological Association.
16 Q. Does the State of Texas require continuing education
17 courses in your area of expertise?
18 A. It requires continuing education as a psychologist to
19 renew your license each year.
20 Q. And how much is required?
21 A. As I recall, 12 hours a year of continuing education are
22 required.
23 Q. How much have you had in the last two years?
24 A. About 190 hours.
25 Q. What is your forensic experience?
792
1 A. I began -- my initial exposure to forensic psychology
2 was in discussions during my graduate training, but I didn't
3 actually do any work at that time. There were additional
4 lectures and discussions about this across my internship with
5 the Navy. My initial direct exposure was as a psychologist with
6 the Navy. As I would evaluate individuals who were pending
7 captain's mast, which is judicial proceedings, or nonjudicial
8 proceedings, just below a court-martial, as well as evaluating
9 individuals who were facing court-martial. That was a small
10 part of the work that I did at that time, but that was with some
11 regularity.
12 In my practice, in my private practice in Abilene,
13 across the 1980's I gradually did more and more forensic work,
14 initially primarily in the family law area in evaluations of
15 child custody, but increasingly involving criminal cases. And
16 at this point, have a general practice in forensic psychology
17 with a good portion of that still involving family law, but a
18 very large portion of it involving criminal related
19 evaluations. Most often, appointments by the Court to evaluate
20 competency to stand trial or mental state at time of offense as
21 a neutral examiner on behalf of the Court.
22 Q. Have you ever done an evaluation that you have been
23 asked to do and not testified after you have done the
24 evaluation?
25 A. Yes, I have. That's happened number of times.
793
1 Q. Why is that?
2 A. Well, in some cases, I may do an evaluation and the case
3 ends up settling in some fashion before there is ever a hearing
4 where I might be called to testify. In other cases, the
5 evaluation that I have done is not helpful to the position of
6 the attorney who has asked me to do the evaluation, and so he
7 doesn't then call me to testify.
8 Q. Have you ever testified in capital cases?
9 A. Yes, I have.
10 Q. Have you always testified for the defense in a capital
11 case?
12 A. Yes.
13 Q. If the state had -- has the state ever asked you to
14 testify?
15 A. No, not in a capital case. I have testified at the
16 request of the state in other criminal matters but not in a
17 capital case.
18 Q. Have you ever been asked to provide training in capital
19 sentencing evaluations to other psychologists, forensic
20 psychologists?
21 A. Yes, I have.
22 Q. And who has asked you to do that?
23 A. The American Academy of Forensic Psychology, which is
24 again the scholarly organization of board certified forensic
25 psychologists within the American Board of Professional
794
1 Psychology, has asked me to do that. I have been invited to
2 present a day-long workshop in Milwaukee this March under the
3 auspices of the American Academy of Forensic Psychology on
4 capital sentencing determination issues.
5 Q. Have you provided expert testimony regarding violence
6 risk assessments in other federal capital cases?
7 A. Yes, I have.
8 Q. How many?
9 A. I have testified by my recollection in six cases that
10 were actively at trial regarding risk assessment and I believe
11 in one federal habeas case that involved issues of risk
12 assessment.
13 Q. Have you additionally testified as an expert involving
14 violence risk assessments in State Court?
15 A. Yes, I have.
16 Q. How many times have you done that?
17 A. By my recollection, there have been four state cases at
18 active trial that I have testified in regarding risk assessment
19 and one or two habeas cases in addition to that, I believe, at
20 the state level.
21 Q. Please tell the ladies and gentlemen of the jury,
22 Dr. Cunningham, what is violence risk assessment?
23 A. Violence risk assessment is -- is estimating the
24 likelihood that someone will behave in a serious violent
25 fashion, in this case, estimating the likelihood that a
795
1 particular individual, a defendant, or Mark Barnette, will
2 behave in a serious violent fashion, in this instance, in
3 federal prison, and applying both conceptual approaches --
4 applying both the theory of the research as well as specific
5 data, specific statistical data to try to arrive at as accurate
6 an estimate as possible.
7 Q. Is that process a science?
8 A. Yes, it is.
9 Q. And what makes it a science?
10 A. It's a science in that risk assessment has a conceptual
11 and research literature. In other words, in the field of risk
12 assessment, there are scholarly articles that are written about
13 how this needs to be approached, that's the conceptual part of
14 it, and then there is also research data that looks at, what's
15 the outcome, what's the degree of violence that is in various
16 populations and what factors seem to be associated with that.
17 And so there is scholarly scientific research data that is
18 associated with the subject, and that's a part of what makes it
19 a science.
20 Q. Are you familiar with that literature, Dr. Cunningham?
21 A. Yes, I am, I study it intensively.
22 Q. And what is the relation of your own publication to this
23 literature?
24 A. The paper that I mentioned regarding the integrating
25 base rate data in risk assessments at capital sentencing is
796
1 specifically oriented to that question, and the paper summarizes
2 the different conceptual approaches that have been taken to risk
3 assessment, looks at various statistical studies that can be
4 supplied to this question at capital sentencing, and is
5 essentially a literature review and a synthesis of these studies
6 and this research into a single paper.
7 Q. What else makes this a science, if anything?
8 A. There is a publish methodology. In other words, the
9 scholarly literature, the publications talk about how you need
10 to go about doing this and what factors you need to pay
11 attention to, what steps are involved in it.
12 Q. What else is considered in showing that this is a
13 science?
14 A. When we talk about risk assessment, we are not just
15 talking about making estimates or evaluations of violence risk
16 potential. The area of risk assessment has a long established
17 history. That's what the insurance industry is, they are in the
18 business of risk assessment, of trying to identify what's the
19 likelihood that someone will have an automobile accident, or
20 what their mortality is, by any number of things that as they
21 try to evaluate how do you go about identifying the likelihood
22 of negative outcomes. And so that part of risk assessment has
23 an established tradition in other industries.
24 Q. Is there anything else that makes it a science?
25 A. The methods of risk assessment can lend themselves to
797
1 being objective, that means that whoever looks at it comes up
2 with a similar kind of approach, as well as reliable, in other
3 words, that you would come up with similar answers each time you
4 evaluate it. That objectivity and reliability, I think, though,
5 depends on how close you stay to the statistics. The closer you
6 stay to the statistics of it, the more likely it is to be
7 objective and reliable. The more it becomes intuitive or even
8 clinical, if you will, the greater likelihood there is that you
9 begin to stray and are less accurate and less reliable.
10 Q. Is there anything else that makes it a science?
11 A. There is progressive accuracy with additional research.
12 In other words, as more studies are done, as more populations
13 are studied and in more detail and outcomes are measured, then
14 our data pool of statistics increases, then we know more, we
15 have better information over time. And so that progressive
16 increase in accuracy, I think, is also part of what makes it a
17 science.
18 Q. Dr. Cunningham, at the conclusion of a risk assessment,
19 are you able to say whether a person is violent or going to be
20 violent or not?
21 A. No, that would be a prediction and prediction is not
22 science. Prediction is a -- that's crystal balls. I don't make
23 predictions, and predictions are not well regarded within the
24 risks assessment community. What I'm attempting to do is
25 evaluate the degree of risk, what is the probability that this
798
1 person will be violent. So it's not an either/or, but it is a
2 probability.
3 Q. So would it be fair to say that it's a probability
4 estimate?
5 A. That's correct.
6 Q. Is this based on research data?
7 A. Yes, it is. The probability estimate stems directly
8 from actuarial follow-up, from research data with individuals
9 who we identify as having various characteristics in common with
10 the person who we are evaluating here.
11 Q. And what sort of data is relied on in doing a risk
12 assessment?
13 A. The basic source of data are group statistics. In other
14 words, you measure the group as a whole. It's -- the analogy
15 that comes to mind is that as the automobile insurance company
16 evaluates the likelihood that my 16-year-old will be involved in
17 an accident. The way they evaluate that is they look at their
18 experience with thousands of 16-year-old's, and on the basis of
19 that, they can identify a statistical likelihood that this
20 16-year-old will have an accident. And so we are going to start
21 the same way. We're going to begin with group statistics that
22 look at large numbers of people, and the next step then is to
23 individualize that to a particular person, to look at what
24 factors there are about a specific individual that might cause
25 us to modify that group statistic a little bit. And I
799
1 emphasize "a little bit," because the farther that you go, the
2 farther you depart from that statistical estimate, the greater
3 the likelihood is that you are going to be inaccurate. But we
4 do try to individualize that risk estimate based on individual
5 characteristics.
6 Q. When you say individualize it, you mean individualize it
7 to a particular person?
8 A. That's right, to bring this down to Mark Barnette,
9 looking at Mark Barnette in relation to these group statistics,
10 where does he look like he is going to fall around that risk
11 level.
12 Q. Dr. Cunningham, have you studied this group statistical
13 data?
14 A. Yes, I have.
15 MR. WILLIAMS: Your Honor, at this time the defense
16 would tender Dr. Cunningham as an expert in the field of
17 forensic psychology involving violence risk assessment at
18 capital sentencing.
19 THE COURT: All right, the Court will so accept him.
20 BY MR. WILLIAMS:
21 Q. Dr. Cunningham, were you asked to evaluate Mark Barnette
22 for the purpose of violence risk assessment in this case?
23 A. Yes, I was.
24 Q. Tell the jury how you did that.
25 A. I began by reviewing extensive, and it's part of my
800
1 ongoing practice and habit of reviewing extensive statistical
2 studies and research data in this area of risk assessment and
3 looking at what data could be brought to bear on the question of
4 Mark Barnette's likelihood of serious violence in prison. I
5 reviewed extensive records in the case that I can detail.
6 Q. All right. And you have a list of those records that
7 you have reviewed?
8 A. Yes, I do.
9 Q. How many pages is the list you have?
10 A. Four pages single spaced, and in many instances there is
11 more than one document per line.
12 Q. And were those the records that were involved in the
13 charges that were brought and now the convictions of Mark
14 Barnette in the killings of Robin Williams and Donald Lee Allen?
15 A. That's correct.
16 Q. And without reading every single document, can you give
17 the jury an overview of the areas that you reviewed, the kinds
18 of documents that you reviewed?
19 A. Well, in addition to the offense reports in this case, I
20 reviewed the offense reports and statements associated with his
21 prior criminal arrest and convictions. I reviewed school
22 records, medical records, reports of past psychological
23 evaluations, reports of the evaluations that were done at FCI
24 Butner and the federal facility this fall, read the entire chart
25 from the federal facility that was made available to me.
801
1 Q. In addition to records, did you review any interviews?
2 A. Yes, there were many other records that I looked at,
3 including records of other experts, extensive interviews that
4 Cindy Maxwell had obtained with a large number of third parties,
5 family members, friends, employers, other individuals that she
6 had collected data from.
7 Q. Did you review all of the reports not only from Butner
8 but from Dr. Duncan, Dr. Grant?
9 A. Yes, I did.
10 Q. And any other medical reports?
11 A. Yes, I did.
12 Q. Did you directly evaluate Mark Barnette, the young man
13 seated next to me?
14 A. Yes, I did.
15 Q. How many hours did you spent in interviewing him?
16 A. I spent just over 11 hours interviewing him.
17 Q. Did you have any interviews of people directly?
18 A. Yes, I did.
19 Q. And what kind of people did you interview directly?
20 A. Directly, I interviewed Jessie Cooper, also Sonia
21 Barnette. Then I spoke to Sonia Barnette for an extended period
22 of time over the phone. Then I conducted telephone interviews
23 of Derrick Barnette, Mario Barnette, Sheila Cooper, Steve
24 Austin, Brian Ard, Shonda Nero, Captain Alan Cobb who I spoke to
25 briefly. He was checking the disciplinary status at the jail
802
1 and so his was more of just to let me know that there had been
2 no additional incidents or other incidents. I also interviewed
3 Tony Harrison, who is a Mecklenburg County jailer, police
4 officer Elizabeth A. Joye and Dr. Sally Johnson. All of those
5 individuals I had direct telephone interviews with, and then
6 there were other individuals who I attempted to contact but who
7 I could not reach.
8 Q. Did you review all of the jail records since Mark
9 Barnette's arrest?
10 A. Yes, I did.
11 Q. Did you go to the crime scene of the Donald Lee Allen
12 killing?
13 A. Yes, I did.
14 Q. Did you review photos and videos?
15 A. Yes, I did.
16 Q. Did you review the findings of Dr. Salton and
17 Dr. Halleck?
18 A. Yes, I did.
19 Q. Have you as part of your extensive review in this case,
20 Dr. Cunningham, prepared some demonstrative visual aids to
21 illustrate your testimony to this jury?
22 A. Yes, I have.
23 MR. WILLIAMS: If Your Honor please, may Dr. Cunningham
24 at this time come down to the overhead projector?
25 THE COURT: All right, sir.
803
1 MR. WILLIAMS: I have a -- I think I have tendered to
2 the Court an exhibit marked, whatever that exhibit number is,
3 Your Honor, I believe it's 58.
4 THE COURT: Well, let's see.
5 MR. WILLIAMS: It's a black book, Your Honor.
6 THE COURT: The one I have here?
7 MR. WILLIAMS: Yes, sir.
8 THE COURT: You have 59 on that one.
9 MR. WILLIAMS: Pardon me?
10 THE COURT: 59.
11 MR. WILLIAMS: All right, 59, Your Honor, and that is,
12 Your Honor, a copy of the various overheads that Dr. Cunningham
13 intends to use. We put them into one exhibit. We provided them
14 to the government.
15 BY MR. WILLIAMS:
16 Q. Before, Dr. Cunningham, you proceed, I wanted to ask you
17 one last question.
18 Before you -- before you attempted to interview Mark
19 Barnette in the case, were you aware of licensing procedures in
20 the State of North Carolina for an out-of-state psychologist?
21 A. I made myself aware of it.
22 Q. And how did you do that?
23 A. I telephoned the State Board of Psychologists here in
24 North Carolina to identify what their procedure was for
25 psychologists coming in from out of state to perform forensic
804
1 work. Each state has different regulations about that and
2 different policies about how you go about getting permission to
3 do psychological work in North Carolina when you are not -- if
4 you are not licensed in North Carolina. And so I inquired of
5 the State Board and then followed their procedures.
6 I submitted an application. They had to verify my
7 license with Texas to be sure that that license was in good
8 standing, and, in fact, my evaluation in this case was delayed
9 by several weeks. I was initially scheduled to go down and talk
10 to Mr. Barnette at FCI Butner and had to cancel that because the
11 board couldn't get the paperwork from Texas in time to approve
12 my getting a limited permit, a temporary license to come into
13 North Carolina.
14 THE COURT: All right, 59 will be admitted.
15 MR. WILLIAMS: Thank you, Your Honor.
16 BY MR. WILLIAMS:
17 Q. Let me ask you also to identify Defendant's Exhibit
18 Number 58, and ask you if you can identify that exhibit, please,
19 sir?
20 A. Yes, I can. This is the copy of the letter that was
21 sent to me by Martha Story of the North Carolina Psychology
22 Board confirming to me that I had been issued a temporary
23 license in North Carolina effective January 1st, 1998.
24 Q. All right, sir, thank you very much.
25 MR. WILLIAMS: Offer Defendant's Exhibit Number 58, Your
805
1 Honor.
2 THE COURT: Without objection, let it be admitted.
3 BY MR. WILLIAMS:
4 Q. Dr. Cunningham, how do the overhead -- you have an
5 overhead projector there with a screen that you are about to
6 use, how do the overheads help explain what you did?
7 A. The overheads will form an outline of the information
8 that I want to present and also displays it in many cases
9 graphically or identifies the primary points. I have a pretty
10 good amount of information to present and thought this was
11 perhaps a way for me to keep it organized and also to make it
12 more understandable and easier to relate to the jury.
13 Q. Do the overheads you are about to show the jury
14 illustrate your testimony and illustrate the studies and the
15 process that you went through before you reached an opinion with
16 regard to violence risk assessment?
17 A. Yes, they do.
18 Q. If you will proceed, Doctor, and use your first overhead
19 and explain to the jury from the beginning and moving on through
20 what you did in this case with regard to violence risk
21 assessment and how you individualized it to Mark Barnette.
22 A. When you undertake a risk assessment, there are four
23 primary components. The question is, will there be violence,
24 and the four specific components of the risk assessment are what
25 is the probability, of what form of violence, at what time
806
1 period, in what context.
2 Now, the issue here is that individuals are not either
3 dangerous or not in toto. It's not that somebody is highly
4 dangerous everywhere they go in every situation, but instead we
5 are looking at a probability of a particular form or severity of
6 violence across a given time period in a very specific context.
7 So those are what we begin with in undertaking a risk
8 assessment.
9 Q. That is with regard to an overhead on risk components.
10 What are risk components?
11 A. These are the same components that we just talked about,
12 the -- using our automobile insurance analogy, the issues are
13 will this driver have an incident, what is the probability, of
14 what type of accident, with what age driver, and what driving
15 location. They are the same questions that the automobile
16 insurance company is asking, those are the same ones we're
17 asking in terms of will there be violence. The risk components
18 are the same regardless of what field of risk assessment I am
19 in.
20 Q. With regard to risk assessments, do you have certain
21 techniques that you would use as an expert in forming your
22 ultimate opinions?
23 A. Yes, I do. There are four broad approaches to risk
24 assessment, and these go from more scientific to less scientific
25 as we go down the list. The most scientific approach is the
807
1 insurance company method, the actuarial method. The next most
2 reliable after that is what we call an anamnestic approach, and
3 that's used with patterns of how the individual has behaved in
4 the past to evaluate and to estimate their behavior in similar
5 situations.
6 Now, there are two keys to the anamnestic approach. One
7 is that there is a sufficient pattern of behavior in the past,
8 and second, that the situation that we are talking about
9 predicting for is very similar. And so that -- those are
10 essential elements, that there is a sufficient pattern and a
11 similarity of situation in the anamnestic approach.
12 Then there is intensive clinical evaluation. This is
13 what psychologists more routinely do. As someone comes into my
14 office and I am evaluating them on the basis of interview and
15 the history that I take from them and my observations of them
16 and their mental status, the way their thought processes and
17 emotions are working, and on the basis of that I'm evaluating,
18 is this somebody that needs to be in the hospital, what is the
19 likelihood that this person may try to kill himself across the
20 next week or two. I'm looking at very short-term issues. I may
21 be looking at some long-term personality characteristics that
22 may shape things over time.
23 And then the last one, number four, is hypothetical
24 inference. That's where I have very limited data, and it's like
25 star gazing. It's like seeing the shapes of animals in the
808
1 stars. I'm going dot to dot, I'm filling in lots of space in
2 between, and that, of course, is the least reliable approach in
3 risk assessment.
4 Q. Now, is there models of violence risk assessment in the
5 literature, Dr. Cunningham?
6 A. Yes, there are. This is not an inclusive list, these
7 are just some highlights, some different studies that I have
8 identified to talk about models of risk assessment, and it
9 begins with Monahan in 1981. Monahan is considered in forensic
10 psychology to be kind of the grandfather of risk assessment, and
11 Monahan in 1981 described risk assessment as being best based
12 first on actuarial methods on these group statistics and then
13 individualizing that actuarial information with data about the
14 persons personality style, their disposition, how they interact
15 with other people, what kind of context they are in.
16 Then Morris and Miller in 1985 picked up similar
17 things. Morris and Miller talk about actuarial approaches using
18 how people like him will behave to estimate how he is going to
19 behave. Anamnestic approach is using how the individual has
20 behaved in the past to estimate behavior in similar
21 circumstances, and then clinical approach, using life experience
22 for any knowledge. Morris and Miller point out that this
23 clinical approach adds very little to these first two, that our
24 best risk assessments are based on these two, the clinical
25 approach adds only a small amount.
809
1 Hall in 1987 talks about risk assessment approaches
2 varying depending on whether we are talking about risk
3 assessment in the next several days, or if we are talking about
4 a short-term in the next several months, or as in the case in a
5 capital sentencing determination, the likelihood of long-range
6 violence over time. And Hall talks about long-range violence
7 being best estimated by the base rate of violence, the
8 statistics regarding violence in the group to which the
9 individual belongs.
10 Q. What is a good way to put in layman's terms what base
11 rate is?
12 A. I'm not sure this is in layman's terms, the statistical
13 prevalence of a particular behavior over a set period of time.
14 The base rate is like what is the likelihood that a man who is
15 46 years old will have a heart attack in the United States, and
16 there's a base rate for that, and maybe it's seven per thousand
17 or something like that. That's the base rate per year. That's
18 the statistical prevalence of a particular behavioral outcome
19 over a set period of time. This is the fundamental group
20 statistic. It's the single most important piece of information
21 necessary to do an accurate risk assessment. If I can't have
22 any other data, give me the base rate. If I can't have anything
23 else, I would like to have the base rate.
24 Q. And you are going back to the --
25 A. I'm going back to this last model, which is Serin and
810
1 Amos in 1995, and Serin and Amos are talking about a multi-step
2 process that you begin with a group base rate from relevant
3 group statistics. You then consider clinical information about
4 how this person has been violent in the past and under what
5 circumstances. Then you do a very important thing here at
6 number 3, you evaluate what risk management variables and what
7 contentional factors might be modified to reduce the likelihood
8 of risk.
9 Now, number 3 is what the insurance industry has done
10 and our government has done with a padded dash, padded steering
11 wheel, seat belts, driver's air bags, side door beams. Those
12 are all steps that have been undertaken as risk management
13 variables that work to reduce the likelihood of injury in an
14 accident. So that's another step in risk assessment is
15 identifying what steps can be undertaken to reduce the
16 likelihood.
17 And so then you have a final revised estimate. So we
18 have a base rate, we modify that for clinical information, we
19 look at what we can do to reduce the risk, and we have a final
20 revised estimate of the violence potential.
21 Q. Are there certain steps that you go through,
22 Dr. Cunningham, in doing this?
23 A. Yes, there are. There are seven actuarial steps that
24 can be undertaken. We begin by identifying the general
25 characteristics. In our automobile insurance analogy, it was
811
1 unmarried male drivers between the ages of 16 and 25. In this
2 case, we would look at general characteristics about Mark
3 Barnette, such as having been convicted of capital murder, and
4 serving a term in prison. We might identify him additionally as
5 a long-term prisoner as opposed to a short-term prisoner. We
6 might evaluate him in terms of the likelihood of assault within
7 the federal prison system. We could look at the likelihood of
8 staff assault or staff death in the prison system across the
9 United States, and that way begin to gather statistical
10 information, our base rate information about what is the
11 likelihood that he is going to engage in serious violence.
12 Now, within each one of those general characteristics we
13 are then going to review the experience, that's where we look at
14 the data to see, so what happens to these folks. The insurance
15 company is studying their outcomes with unmarried male drivers
16 between 16 and 24. We are going to track inmates across the
17 general characteristics here as well, and then establish a base
18 rate, which is an historic percentage. That base rate can be
19 adjusted for context in our driving analogy. That's whether the
20 person is driving in a major city perhaps or in a more rural
21 area. In our base rate estimates, obviously we are going to be
22 paying a lot of attention that we are talking about the context
23 of prison, not open, free society, but prison, a very specific
24 context, and additionally, as there are different contexts of
25 confinement available within the federal prison system. That
812
1 may also affect the likelihood of risk of this person acting out
2 in a serious violent fashion.
3 We will adjust the base rate individual differences. In
4 our driving analogy, that's like you get some insurance
5 deduction if you have taken behind the wheel or if you are an
6 honor student. You might have an increase in your premium if
7 you dropped out of high school. Those are modifications in the
8 base rate that are made based on individual differences, and we
9 will look at individual characteristics of Mark Barnette and how
10 that will affect the base rate.
11 Number 6, adjust the base rate for preventive measures
12 that might be undertaken, we talked about that. It could also
13 be useful to compare the base rate to other base rates, to
14 compare our 16-year-old drivers to 55-year-old drivers just as a
15 way of having a point of reference.
16 Q. What does that overhead illustrate, Dr. Cunningham?
17 A. In the overheads that follow, I'm going to talk about
18 five different groups of base rates that are relevant to the
19 likelihood of violence in prison, that talk about follow-up with
20 capital offenders, convicted capital murderers and other
21 murderers in the general prison population. We are going to
22 talk about the frequency of assaults by inmates in federal
23 prison. We will look at base rates of homicide of inmates or
24 staff in state and federal prison. We will look at the rate of
25 disciplinary infractions of short-term inmates, those are
813
1 inmates who are sentenced to less than five years, as compared
2 to inmates sentenced to more than five years, and we'll look at
3 that in terms of age and admission to prison and the seriousness
4 of the infraction and fights and assaults and their frequency,
5 and then also base rates associated with the effects of age.
6 So as we evaluate the likelihood of violence for Mark
7 Barnette in prison, that number is not a static one but instead
8 is one that can be expected to change with the effects of aging,
9 and we will look at base rates regarding that as well.
10 Q. What does that overhead illustrate, Doctor?
11 A. This is the first study that I want to talk about that
12 is related to follow-up of capital murderers in prison and their
13 behavior in prison, and let me provide some context for this as
14 well.
15 The next few studies that follow are going to look at
16 the experience of capital murderers in state prison. We are
17 going to look at various states as well as across the nation, a
18 sample of many states. None of these studies are going to talk
19 about outcomes of commuted capital offenders in federal prison.
20 The only studies that I can find deal with a state prison
21 setting.
22 Q. Have there been any studies in federal prison?
23 A. Not to my knowledge. I find these to be relevant and I
24 rely on these, because I believe that Mark Barnette's
25 characteristics are essentially the same whether he is here in
814
1 the Federal Courthouse being tried, or whether he is across town
2 being tried in the State Courthouse for the same charge.
3 Now, there is a different context that he is going into,
4 he is going into the federal prison system as opposed to a state
5 prison system. My perception is that the federal system is a
6 model prison system and has significant resources available to
7 it, and that the context in the setting of federal prison is
8 such that federal prison should not have a worse outcome in
9 terms of the behavior of capital offenders as compared to the
10 state prison system. So this is a different context. I think
11 it's one that continues to be very relevant to our discussions.
12 Q. Is this a study that was done in 1989?
13 A. 1989, yes, it is. This is a study that's based on
14 capital offenders in Texas. We have a group of capital
15 offenders who were initially sentenced to death and subsequently
16 had their sentences commuted to a term on appeal. Because of
17 perhaps errors in the sentencing phase of trial, their sentences
18 were commuted to a capital life term, and so they are moved from
19 death row into the general prison population and then are
20 followed for an average of about seven years in terms of their
21 behavior across the time after their sentence has been commuted.
22 Q. What does this show, Dr. Cunningham?
23 A. We have 90 inmates who were released from death row in
24 the general prison population. There are 102 capital murderers
25 who were initially sentenced to capital life, were not given the
815
1 death penalty, who were also followed. Then we have all of the
2 inmates in the Texas state prison system, there were 38,000 of
3 them in 1986, we are comparing them, and these are a group of
4 about 1,700 individuals who are on a high security unit within
5 the Texas Department of Corrections.
6 Now, this is the -- the numbers that are reflected here
7 in the graph are the average yearly number of serious violent
8 rule violations per hundred inmates per year. So our two
9 capital groups averaged about two serious violent events per 100
10 inmates per year. The general prison population averages 11.66
11 and the guys in the high security unit average 19.54, so that
12 our capital offenders, rather than being disproportionately
13 likely to behave violently in prison, are disproportionately
14 less likely to behave that way. They are about one-fifth as
15 likely as the system wide and about an eighth or a ninth as
16 likely as the guys in the Darrington unit.
17 Within this same group of Texas inmates, there were a --
18 there is a group of those that did constitute a significant
19 management problem to the corrections personnel. 8 of the 90
20 who were released from death row were identified as prison gang
21 members. At this point in time in the Texas prison system,
22 there was a very significant problem with prison gangs, and they
23 were identified as gang members and were confined indefinitely
24 in administrative segregation. That means that they are put in
25 single cells where they remain 23 hours a day. They are
816
1 shackled when they're taken out of the cells for their hour a
2 day of exercise when they exercise alone. They eat in their
3 cells. They don't have general population contact. So their
4 behavior was effectively constrained by putting them in
5 lockdown. And six of the control life sentence group were also
6 identified as gang members and were confined indefinitely in
7 administrative segregation.
8 What we see here is that two-thirds of both groups had
9 never been in solitary confinement, which is the punishment for
10 more serious disciplinary infractions, and 90 percent of them
11 end up being trustees. That doesn't mean that they have a cushy
12 life in prison, it means that they are engaged in providing
13 services in the prison, they do work in the prison and
14 contribute to their own upkeep and are not viewed as being such
15 a risk that they have to be under constant, very close, tight
16 supervision. So for 90 percent of both groups, they were not a
17 management problem in prison and were treated as trustees.
18 Now, there is a very similar experience from another
19 study that looked at 533 former death row inmates nationwide
20 whose sentences were commuted in 1972 under a Supreme Court
21 decision, Furman v. Georgia, and so everyone who was on death
22 row at that time had their sentence commuted to a term of
23 capital life. And then their prison behavior after the
24 commutation, after they are in general prison population off of
25 death row, prison behavior is followed over an average of about
817
1 15 years. And the outcomes, the base rates are very similar to
2 the Texas study that we just looked at. About 70 percent, 69.5
3 percent of these inmates had no serious violent violations, none
4 at all. About 15 percent had one violation, seven and a half
5 had two violations, and about seven and a half percent had three
6 or more violations. In fact, this group here was responsible
7 for about half of all of the violence that occurred.
8 So you have a very small group even within this group of
9 capital murderers, a small group that accounts for the
10 overwhelming majority of the violence. This is significant.
11 These individuals who have a single violation across a 15-year
12 period of time in that if someone is violent prone in a really
13 malignant sort of way, we would expect that they would have
14 gotten in trouble more than once across a 15-year period of
15 time. So a single event across 15 years may well reflect a
16 significant contribution from the situation that the context,
17 the situation, the person is in may well have had something to
18 do with these events.
19 Q. And that was a study in 1989?
20 A. This is again 1989, and it's looking at the follow-up of
21 inmates beginning in 1972 over a 15-year period of time up to
22 about 1987.
23 Q. All right. Is this overhead a study done in 1996?
24 A. That's correct. This is a study out of Missouri in 1996
25 by Sorensen and Wrinkle, and this study looked at three groups
818
1 of inmates. It looked at 93 guys on death row, 323 life without
2 parole inmates, and 232 life with parole inmates, a total of 648
3 inmates. These groups did not differ in their assaultive rule
4 violations. It didn't make any difference whether the guy was
5 on death row or life without parole or life with parole. In
6 Missouri, these groups are all housed in the same facilities, or
7 at least these two, the death row guys and the life without
8 parole are housed in the same facilities and are treated
9 essentially the same, and their disciplinary rates did not
10 differ in terms of problems.
11 This pie chart looks at the cumulative prevalence across
12 15 years. That means as we add up all of the violence across
13 the 15-year period of the follow up, up to 15 years, for the
14 whole group, 78.2 percent had no assaults at all across 15
15 years, 6 percent of them had minor assaults, 14 percent were
16 more serious assaults, and of the 642, 1.2 committed another
17 homicide across this period of time on an inmate. So this again
18 is quite consistent with the numbers that we saw out of the
19 Texas study and also out of the Furman study that looked at
20 inmates across the country.
21 Let me point out in relation to this study, this study
22 provided us a good deal of information about the nature of the
23 inmates involved and what their past offenses had been and
24 what -- the nature of their crime and that sort of thing, and
25 that's broken out for us. A -- as I review that data, a
819
1 domestic -- this kind of homicide if it's there is of a very
2 small percentage. It's about 1 percent or something. Most of
3 them are murders that were done in the course of an armed
4 robbery or in the course of a rape or that sort of thing. So
5 this situation, this offense is a little different.
6 Q. What offense?
7 A. Mark Barnette's offense, doesn't match entirely those
8 offenses that were represented more significantly in this.
9 Again, I think it's a reasonable assumption to view this capital
10 offense as being still within that same capital murder group
11 that lets these studies be applicable to it. The other studies
12 don't break out the particular type of capital murder as I
13 recall.
14 Then there is one other study that I'll just mention
15 briefly. This is looking at New Jersey capital offenders, a
16 very small study on 55 inmates whose sentences were commuted
17 between 1907 and 1960 and followed across the period of time
18 that they were in prison and were serving life sentences. There
19 were no allegations of unmanageable behavior in this group at
20 all. Its a small study. Unmanageable behavior as I recall was
21 not defined, but at least it's an indication they were not
22 regarded as being ongoing major disciplinary problems. So
23 that's -- those are the base rates that are associated with our
24 capital offenders.
25 The next couple of slides deal with the relationship of
820
1 the offense history to prison adjustment. In other words, is
2 there any connection between the fact that this person committed
3 murder and how violent they are going to be in prison, or that
4 they committed armed robbery and how violent, or other offenses.
5 These are conclusions from a U.S. Justice -- summarize a U.S.
6 Justice Department publication. Past violence is not strongly
7 or consistently associated with prison violence. Violence in
8 the community may be strongly associated with violence in the
9 community. Prison is a very different context. And violence in
10 the community is not strongly or consistently associated with
11 violence in prison according to the Department of Justice
12 studies they commissioned.
13 Current offense, prior convictions and history are
14 weakly associated with prison misconduct. Severity of offense
15 is not a good predictor of prison adjustment. There are a
16 couple of studies that we might look at that illustrate this.
17 This is a very small study, I think there were only 30 inmates
18 involved. They were looking at factors associated with violence
19 in the first six months of confinement in federal prison. And
20 what they identified is the individuals who were more likely to
21 have violence in the first six months were younger inmates. In
22 this study, the oldest inmate, I think, was about age 30 and
23 they went down to 18. More prior arrests and convictions and
24 not having resided in major cities, those were the things that
25 seemed to identify the ones who had a somewhat greater
821
1 likelihood of violence. The severity of the current offense did
2 not predict inmate violence, contrary to what we might otherwise
3 expect.
4 This is a study out of the Bureau of Justice Statistics
5 in 1989, and here we're looking at the average number of prison
6 rule violations per inmate per year in terms of what their
7 offense of conviction was. It was back in 1986 that this data
8 was collected. So here is the offense of conviction and here
9 are the average number of infractions for inmates, and notice
10 that our inmates who were convicted of homicide or manslaughter,
11 rather than having more incidents, disciplinary incidents of all
12 sorts, not just violence but all disciplinary incidents, in
13 fact, were on the lighter end of this with robbery inmates
14 having the highest number, followed by the property offenders.
15 The next set of base rates has to do with the frequency
16 of assaults in federal prison, among the federal inmate
17 population. And this is based on a 1992 study out of U.S.
18 Department of Justice, Federal Bureau of Prisons. This depicts
19 the frequency, this is the annual, each year, the annual
20 percentage of assaults on staff, and this is just over 1
21 percent. About 1 percent of the inmates will assault a staff
22 member in a given year, about one chance in 100. Now, what this
23 describes, though, is only one-fiftieth of those assaults are
24 serious or major. Serious or major means where the staff member
25 got stitches, got a broken bone, had to be admitted to the
822
1 hospital, got a concussion, only one-fiftieth of those, of that
2 1 percent. That's depicted here in this circle. We have 98.84
3 percent of the inmates who did not assault a staff member that
4 year. We have 1 percent of them that did, and that little line
5 right there is the .02 percent where it was serious. And this
6 gives you some sense of the degree of risk that we are talking
7 about.
8 The next graph shows the frequency of inmate on inmate
9 assaults, and about 1.1 percent, 1 in 100, assaulting another
10 inmate, here the frequency of it being a serious or major
11 assault was greater, about a fifth of those were serious or
12 major, or about a fifth of a percent, .22 percent. That looks
13 like this when we graph it. 98.9 percent had no assaults. 1
14 percent had an assault. Of those assaults, a fifth of a percent
15 were serious or major.
16 Q. What is the base rate there?
17 A. The base rate then on an annual basis, if we are talking
18 about the base rate of inmate on staff assault is 98.8 percent
19 that it's not going to happen with a given inmate this year.
20 The likelihood that it will happen is 1.16 percent. If we're
21 talking about an assault on an inmate, the base rate is 98.9
22 percent likelihood it's not going to happen in a given year,
23 just over 1 percent likelihood that it will.
24 Well, we might say, okay, what about in a high security
25 facility? I mean, granted, the assault rate is going to
823
1 be -- may be low in a white collar facility that's of a lower
2 security doesn't have more seriously violent individuals
3 committed to it. What about in a high security facility? And
4 so this is the same graph that you saw a minute ago. This
5 represents our high security population. This is based on
6 Leavenworth, Lompoc and Lewisburg, just over 4,000 inmates.
7 And, in fact, the frequency of assault on staff is greater in
8 the high security facility. Here it's 2.8 percent as supposed
9 to 1.6 percent, so it is significantly greater than this. Here
10 it's depicted on our pie heart chart. Again, 95.5 percent have
11 no assaults. About 2.8 percent have an assault on a staff
12 member. And our assaults on other inmates is somewhat greater
13 as well, 1.7 percent as opposed to 1.1 percent, and that's what
14 this looks like on the graph. Now, here's the comparison of our
15 two pie charts. There is a greater degree of risk in high
16 security prison in terms of our base rate and looking at it
17 graphically. But again, the overwhelming majority of inmates,
18 this doesn't happen with.
19 This looks at the base rate of inmate and staff homicide
20 across the country in 1995. In the federal system, this is
21 inmate on inmate, one inmate killing another, in the U.S. Bureau
22 of Prisons, there were seven homicides per 100,000 inmates.
23 You've got 100,000 guys in prison, there were seven homicides.
24 In state prison, there were 5.6 inmate on inmate homicides per
25 100,000 inmates.
824
1 Now, we have compared that, in the United States as a
2 whole, there were 8.2 homicides per 100,000 in the population.
3 In North Carolina, there were 9.4 per 100,000. In
4 charlotte-Mecklenburg, there are 16.4 per 100,000. The base
5 rate of homicide in prison is lower than it is on the street,
6 which is what you would -- even though 47 percent of the
7 individuals in state prison are serious violent felons. You
8 have a large concentration of serious violent felons, but your
9 base rate of homicide is lower than it is on the street. The
10 reason for that is that prison works. They are in situations
11 where they are highly supervised and classified, and are either
12 shakedowns and there are search for weapons and access to
13 substances is reduced and many, many factors are present in
14 terms of structure and supervision that are not present on the
15 street, so your base rates are lower than the surrounding
16 population.
17 Inmate on staff homicide is exceedingly rare in prison,
18 and in the federal system in 1995 there was one homicide with an
19 inmate population of about 100,000. In the country as a whole
20 with a prison population of close to a million, there was also a
21 single staff member who was killed. In 1994, with a million
22 inmates in prison nationally, there was not a single homicide of
23 a guard either in state or federal prison. So you are talking
24 about an event that is extremely, extremely rare.
25 There is a way of trying to translate the base rates
825
1 that we looked at in terms of assaults on staff. The likelihood
2 of an inmate on staff assault of any assault is about 1 percent
3 a year. That's about 1 inmate in 100. It's about one assault
4 about every 86 inmate years. A major assault occurs about a
5 fifth or a fiftieth of a percent of a year. That's less than
6 one inmate in 5,000 in any given year. That's an assault, a
7 serious assault on a staff member every 4,300 inmate years. And
8 actually, this statistic is incorrect. Based on '94, '95, it's
9 one staff homicide for every 200,000 inmate years.
10 Inmate on inmate assault, about any assault about 1
11 inmate in 100, one assault every 90 inmate years, a serious or
12 major assault, about one inmate in 500 in any given year, or one
13 assault every 454 inmate years. One inmate homicide, about
14 every 9,000 inmate years.
15 Another way of looking at the likelihood of disciplinary
16 infraction is based on whether the inmate is a short-term or
17 long-term inmate. This is a dissertation that was initially
18 done by Flanagan in 1979 and it was published in a summary
19 article in 1990. And this is the line that depicts the level of
20 disciplinary infractions of short-term inmates at different
21 years and admission and how old they were when they were
22 admitted, and this reflects the experience with long-term
23 inmates. That's inmates who have been sentenced to more than
24 five years. And notice that at each age, long-term inmates have
25 a lower likelihood of disciplinary infractions than short-term
826
1 inmates do. Flanagan talks about this in terms of long-term
2 prisoners adopting kind of a long-term perspective. This is
3 where they are going to live and where they were going to be
4 from now on and settling into that and viewing prison in a
5 different sort of way, of trying to make an adjustment to that
6 and not make their stay harder than it would otherwise be.
7 Now, when we look at, so who are these long-term inmates
8 that have this lower rate of disciplinary infractions, 47
9 percent of them are guilty of homicide and 27 percent of them
10 are guilty of robbery. So these are inmates again who are
11 significantly represented by a homicide population and yet have
12 lower rates of disciplinary infractions over time. We can ask,
13 so what is the seriousness of these disciplinary infractions
14 that occur? And our long-term inmates do have a somewhat higher
15 frequency of high seriousness incidents such as interfering with
16 an employee or staff or assault or escape. So notice that they
17 are somewhat more likely. The short-term inmates look like they
18 are at about 18 percent, long-term is about 25 percent. Of this
19 group here, though, these more serious incidents, only 11.8
20 percent involve a fight or assault. Most of these serious
21 incidents are not directly violent in nature. So again, we are
22 talking about a relatively infrequent phenomenon occurrence.
23 One of the things that this study also depicts, notice
24 that as the individual is older when he comes into the prison,
25 that his likelihood of disciplinary infractions is also lower.
827
1 This is one of the most well-established principles in
2 criminality and forensic psychology, that age matters, and that
3 the older someone is, the lower the incidence is of criminal
4 behavior, the lower the incidence is of violent behavior, the
5 lower the incidence is of murder, the lower the incidence is of
6 disciplinary problems in prison. Whatever area we want to look
7 at, we see that trend. And I'll just briefly go through these.
8 This shows long-term inmates across the years of their
9 confinement. There is an initial rise in disciplinary
10 infractions, and then after that it falls across the years of
11 confinement.
12 It's another study that looks at the average number of
13 prison rule violations per inmate by age. Here is where the guy
14 is 17, 18 to 24 and falling off here to age 25. Even at the
15 peak age, we are talking about just over two and a half rule
16 violations per year, falling off to .3 rule violations per year
17 at age 45.
18 This is another analysis of Flanagan's data that looks
19 at the likelihood of infractions as a function of age. It peaks
20 here at just over age 20. By age 30, the disciplinary
21 infraction rate is only a half as much and continues to fall
22 across the life span. This is a phenomena that is demonstrated
23 from generation to generation. This is the incidence of
24 criminal offenders in England and Wales in the 1840's, and this
25 is the United States in the 1970's.
828
1 Q. Are all of those studies basically consistent with
2 regard to what they find?
3 A. Yes, they are. And regardless of the context that we
4 look at, age is a very significant factor in these.
5 This study is a community violence since 1990 study and
6 looked at violence in the community, and again you see the same
7 fall-off with age, violent offense and murder by age in the
8 United States in 1981 peaking between the ages of 20 and 24, the
9 age of Mark Barnette in this case, and following across the life
10 span.
11 This is looking at prison admissions across the life
12 span, all offenses for murder, the likelihood of being admitted
13 to prison fall into those as well, and the rate for offenders
14 committing murder or manslaughter in 1995 and peaking at age 18
15 to 24 and falling thereafter.
16 This is a summary of prison findings, a very low rate of
17 serious violent infractions -- the seriousness of offense does
18 not predict prison violence. Federal prisoners have very low
19 rates of serious violence against inmates and extremely low
20 rates of serious violence against staff. Rate of inmate and
21 staff homicides in prison are lower than general prison
22 population. Violent offenders represent almost, just under half
23 of the state prison population. Murderers represent over 11
24 percent, murderers and manslaughter in the state prison
25 population.
829
1 Almost half of the long-term inmates are murderers. The
2 state studies that we looked at, disciplinary infraction rates
3 are lower for long-term inmates than short-term inmates with
4 fights and assaults representing only one-ninth of the
5 infractions, and infraction rates are progressively lower as the
6 inmate ages. And so from general base perspectives, those are
7 all conclusions that generate from these studies.
8 Next the task is given this base rate information, is to
9 particularize the risk assessment to Mark Barnette, to go from
10 the broad statistical information to then adjusting our base
11 rate a little higher or lower based on his characteristics. As
12 I would individualize this assessment to Mark Barnette, in this
13 case I would begin by evaluating his history and the place that
14 violence has had across his life in trying to understand the
15 violence that he's exhibited historically and his violence in
16 this tragic offense, and my understanding is that there's been
17 quite a bit of testimony about these factors as well.
18 Mark Barnette's background was one, his childhood was
19 one what I would describe as recurrent damage attachment. That
20 means that in his primary relationships, with his mom, that she
21 was inconsistently there for him and his dad was gone a good
22 deal of the time when he was growing up, and there was some
23 indication of having been physically abused and neglected and
24 left to fend for himself and many injuries that affected the way
25 in which he attached himself, he connects to other people. I
830
1 think of early childhood as being like a time when emotionally
2 you grow arms that let you feel good about holding other people
3 emotionally. And so if you are in a family where there is
4 security and stability and routine and trust and care, then you
5 learn to approach relationships in a really open, trusting way,
6 you learn to love pretty well by the way that you were loved.
7 And if that isn't what happened, then as you come into
8 adulthood, your capacities, the way in which you try to attach
9 to someone else may be injured and disabled in some way.
10 Out of his recurrent damage attachment, I think there
11 were two primary themes that emerge. One was this hurt and
12 anger about that recurrent experience across his growing up, and
13 the other is neediness. The way you learn to become autonomous
14 as an independent person is as other people love you and care
15 about you, that they fill you up and give you solidness so that
16 you can be out there as an independent portable unit. And when
17 that doesn't happen, then you don't feel so good about yourself
18 being out there and you end up being more needy for other
19 people.
20 Now, there is also these other factors that are going on
21 at the same time. There is a family legacy of domestic
22 homicide, that his -- one of his grandmothers was shot by a
23 boyfriend, and the family story about the other grandmother is
24 that she was poisoned by a boyfriend. He saw domestic violence
25 in his own parents' relationship. He had relationship failures
831
1 of his own and had experience of being victimized, of being
2 beaten up and shot, and I think also ended up having some
3 effects interpersonally.
4 Now, out of the neediness comes dependance on a female
5 partner, and Mark Barnette doesn't go very long before he
6 attaches himself to a female. Once he begins to separate
7 emotionally from his family of origin and adolescence, he begins
8 to make these attachments to women and become dependant on
9 them. Now, the problem is when you are dependant on someone,
10 then there is emotional vulnerability, and his experience of
11 emotional vulnerability is, gee, you get hurt, you're injured,
12 people betray you, things aren't the way they seem to be. So he
13 behaves in a pretty insecure, fearful sort of way. He's
14 obsessively, and he's jealous and he has got all kinds of
15 controlling behaviors and is physically abusive. And my risk
16 assessment includes the assumption that all of the things that
17 he was convicted of are true, and the reports that his
18 girlfriends have had about the way he treated them are true and
19 are consistent with this kind of behavior within this system.
20 Now, when he behaves in that way, then the relationship
21 understandably enough begins to break down. When it breaks
22 down, he has tremendous abandonment anxiety and rejection. The
23 borderline personality disorder that Dr. Halleck diagnosed is a
24 disorder that's characterized by profound anxiety and distress
25 at the prospect of being abandoned. And he becomes excessively
832
1 preoccupied about this abandonment and begins to experience a
2 mixed mix experience of depression, rage and desperate futility
3 that his life is over and that nothing has meaning, begins to
4 have suicidal impulses and homicidal ideas towards his female
5 partner.
6 Now, other parties of this are feeding it as well. The
7 hurt and anger that he experienced is part of what feeds this
8 obsessive possessiveness and controlling behavior, it feeds this
9 excessive preoccupation, it feeds this desperate futility that
10 he has. In some instances, he emerges out of this back to
11 establishing dependance on a female partner, so it stalls out
12 and starts over again. These events here feed his emotional
13 vulnerability and his obsessive possessiveness and the rage and
14 the homicidal ideas. And then you have whatever way in which
15 these young women and their own immaturity may have ways that
16 also contributed to relationship trouble or to his insecurity
17 and the presence of alcohol abuse on occasion that also
18 occurred.
19 So this is for me kind of an organizing model of under
20 what circumstances does he become violent and what context does
21 that occur. And as I evaluate his history of violence, it
22 virtually all seems to surround a domestic situation where he is
23 in a relationship with a woman, and against the experience
24 this -- these sequential steps and these two murders in this
25 case seem to be a part of this final outcome, of the homicidal
833
1 ideas towards Robin Williams and finally acting them out of this
2 in killing Donald Allen along the way to get there.
3 Now, as we individualize these factors to Mark Barnette,
4 there is some that I think increase, in summary increase his
5 risk of violence in prison, both the base rate somewhat and
6 others that are likely to drop below the base rate. His age at
7 admission into prison is a factor that will increase, I think,
8 the likelihood somewhat, although I qualify that because a
9 significant number of the individuals that are convicted of
10 capital offenses are about this age when they go into prison.
11 And so maybe our base rates have already taken care of that, but
12 in fairness I think that given his younger age, that's a risk
13 factor of increased risk.
14 There are several factors, I think, that may be
15 associated with decreased risks, and again we are talking about
16 very minor modifications in our base rates, not substantial
17 departures. That this offense was in a domestic relationship
18 context, that the offense is of a chronic, I would describe as a
19 chronic catathymic type. That means that there's a long-term
20 relationship, the relationship has ended. There's a period of
21 depression and brooding and that sort of thing that finally ends
22 up being acted out and may be prompted in part by alcohol
23 abuse.
24 His prior violence was primarily restricted to the
25 domestic relationship or related context. With Crystal's
834
1 children, he used a coat hanger on them. That was not directly
2 associated with having a fight with her, wasn't a family
3 situation where he apparently was feeling more vulnerable in
4 that relationship with Crystal. There are no writeups in the
5 past or current county jail incarcerations. In this instance,
6 an argument could be made that he is on good behavior because he
7 is facing a capital trial, although individuals don't always act
8 well prior to trial. There are no writeups by my understanding
9 in my of his prior jail experiences as well when he wasn't
10 facing a capital trial. And as I visited with Tony Harrison, he
11 described him as being an unremarkable inmate. Tony has known
12 him since childhood and said his demeanor as a child was quiet
13 and nonaggressive and not belligerent, not a trouble maker, kept
14 to himself, and that his presentation in jail is much the same.
15 He had a positive adjustment to his evaluation
16 incarceration at FCI Butner, and, in fact, was transferred there
17 from a kind of seclusion, locked in his room setting into a
18 general population. He turned himself in, confessed, expressed
19 remorse as I observed in the videotape of the confession. Sally
20 Johnson in her Butner records identified he was taking
21 responsibility for the offense. He is facing long-term
22 incarceration, and he will be aging across the capital life
23 term. Again, this may or may not, these two may also be
24 accounted for in our base rates. All of these guys are aging
25 across their terms and they are all facing long-term
835
1 incarceration.
2 These factors, I think, are primary ones as I would see
3 as perhaps reducing his risk of violence somewhat below the base
4 rate, as compared to our whole pool of capital offenders who
5 potentially have had history of violence across a broad spectrum
6 of situations, have been violent in prison or had offenses that
7 were more armed robbery, predatory violence oriented.
8 In terms of custody options that are available, this
9 overhead is not complete. I modified this and then put the
10 wrong one in my packet. But, in fact, in terms of options that
11 are available within the federal prison system, there is also
12 low and minimum security. And then increasing through medium,
13 then the U.S. penitentiary, which are considered high security.
14 The U.S. penitentiary at Marion is one step up in security from
15 the other high security prisons. And then there is ADX
16 Florence, also called Super Max, that has very particular and
17 specific security apparatus in place to take care of inmates who
18 have not been able to be managed elsewhere in the prison system
19 or who because of their offenses have been identified as folks
20 that are just thought to be too dangerous to be in the general
21 prison population. So they are placed in a Super Max setting
22 either on a more temporary basis of a three-year pass through
23 ADX Florence to kind of re-orient their adjustment to prison, or
24 potentially on an indefinite basis. There are some that are
25 just kept there from now on.
836
1 Q. Is that the last overhead you have, Doctor?
2 A. There is one other regarding errors.
3 Q. Oh, all right, go ahead and show that and then I'll ask
4 you a question.
5 A. There are a number of methodological errors,
6 methodological meaning there are a number of ways to go about
7 this risk assessment wrong, are faulty, and this overhead is
8 intended to summarize some of the approaches that are identified
9 in literature as being faulty to make you a better consumer of
10 risk assessment information.
11 So there are a number of ways this can go wrong. One
12 way is insufficient data. If there is not enough information
13 about the defendant or not enough information about the context
14 that he is going into, then that's one way that the risk
15 assessment can be faulty, because then I'm overreaching, I'm
16 going beyond my data and I'm casting the net too broadly, I'm
17 overgeneralizing about what these figures mean in this situation
18 over here. Often when this occurs, the person is not paying
19 attention to how often what the base rate is of these things in
20 the general population. For example, there were studies of
21 various parts of the country that 25 to 30 percent of males
22 below the age of 30 have a nontraffic arrest. So before I view
23 a nontraffic arrest as highly predictive of something, I need to
24 know how often that's occurring out there.
25 Illusory correlation, that means that I think two things
837
1 are related to each other, but they are not. When we looked at
2 the severity of the offense and whether he is likely to be
3 violent in prison, if I think those things are directly
4 connected to each other, that's an illusory correlation. That's
5 my own bias and belief, that isn't what the data tells us.
6 Perhaps the most important thing in terms of errors is
7 if there is no reference to base rate. In the Forensic
8 Psychiatry Board review course, they talk about that absence of
9 knowledge of the base rates, not knowing the base rates is a
10 common and very serious error in risk assessments. So again, I
11 must have the base rates. In doing it wrong, there is typically
12 an emphasis on the offense severity, inferring that the guy
13 can't have a conscience if he did that, absolutely he is going
14 to do this in the future, the offense scares you to death,
15 therefore, I have to be scared o him, he is going to be violent,
16 that kind of emotional reasoning.
17 Another area is neglect to risk components. In other
18 words, is there a differentiation between risk in the community
19 as opposed to the risk in the context of prison, or have we
20 differentiated whether or not -- what level of custody he is
21 going to be at in prison. The other risk component that is
22 often ignored is there is no discrimination between what is his
23 likelihood of getting into a fight and slapping somebody as
24 opposed to a serious assault as opposed to killing an inmate as
25 opposed to killing a guard, and instead they just talk about in
838
1 a very simplistic and absolute way, the person is dangerous or
2 is not, without breaking it down into these components.
3 Q. Is that your last overhead, Your
4 Honor -- Dr. Cunningham?
5 A. Yes, it is.
6 Q. Let me ask you this question: Have you formed an
7 opinion in this case about Mark Barnette's likelihood of serious
8 violence if confined for life in federal prison?
9 A. Yes, I have.
10 Q. What is your opinion?
11 A. My opinion is that likelihood is very low.
12 Q. Would you face the jury when you answer that question,
13 please?
14 MR. CONRAD: Asked and answered.
15 THE COURT: Sustained.
16 MR. WILLIAMS: You may take the stand now, Doctor. You
17 may cross-examine.
18 THE COURT: Is your cross-examination going to be
19 lengthy or short or what?
20 MR. CONRAD: Moderate.
21 THE COURT: Well, you want to go to lunch first -- you
22 know how long it's going to be, lunch?
23 MR. CONRAD: I have no preference, Judge, whatever the
24 Court wants.
25 THE COURT: Members of the jury, probably ought to go
839
1 ahead and take lunch period at this time. Do not discuss the
2 case among yourselves or with anyone outside of the courtroom.
3 We'll see you at -- 1:30 going to rush you too much? Say 1:40?
4 1:40, I think I heard a couple of nods there. All right, 1:40
5 then.
6 (The jury left the courtroom.)
7 THE COURT: Recess until 1:40.
8 (Lunch recess.)
9 CROSS-EXAMINATION
10 BY MR. CONRAD:
11 Q. Mr. Cunningham, I believe you testified that you
12 interviewed the defendant for 11 hours starting January 3rd, is
13 that correct?
14 A. Yes, as I recall that was 11 hours and 22 minutes.
15 Q. And that was approximately a month after the lawyers for
16 the defendant filed a summary of your testimony and expertise
17 with the Court, is that correct?
18 A. That's correct, I'd been scheduled to come out in early
19 December, as I recall, and that trip was delayed as I was
20 waiting for my temporary permit from the North Carolina
21 Licensing Board.
22 Q. And then you filed a report on January 14th which is
23 basically a page and a half report indicating your findings with
24 respect to the defendant, Aquilia Marcivicci Barnette, correct?
25 A. Up to that -- my conclusions up to that time, that's
840
1 correct.
2 Q. And what did you do since that time, if anything?
3 A. On January 24th and following, I had telephone
4 interviews of Derrick Barnette, Mario Barnette, Sheila Cooper,
5 Steve Austin, Brian Ard, Shonda Nero, Sonia Barnette, Captain
6 Allen Cobb, Jailer Tony A. Harrison, Charlotte Mecklenburg
7 Police Officer Elizabeth Joye, and Dr. Sally Johnson from FCI
8 Butner. I attempted interviews of other individuals and
9 reviewed the interviews that Cindy Maxwell had provided,
10 summaries of regarding an extended list of additional third
11 parties.
12 Q. How did any efforts that you made in this case after
13 January 14th affect your testimony here today?
14 A. The information that I gathered after that time extended
15 and expanded and corroborated for the most part most of the
16 conclusions that I had from the earlier report that I filed.
17 Q. And how did it do that?
18 A. By extending the amount of data that I had, I had up to
19 that point, the information that I had obtained from Mark
20 Barnette and it had his description of life history, and had
21 seen a limited amount of summary information in his life history
22 that Cindy Maxwell provided. That's not the same though as
23 actually speaking directly to the family members who were then
24 involved with him and who could tell me about his life events or
25 in reading the summaries of Cindy Maxwell's interviews with
841
1 those individuals.
2 There was other data that I obtained from the report
3 that had been filed by Dr. Johnson and her staff, information
4 that I obtained from talking to jailer Tony Harrison regarding
5 his adjustment in an institutional setting that I had not
6 directly had, so it gave me much more direct information to try
7 to base my conclusions on.
8 Q. And how did the obtaining of that direct information,
9 how did that -- in what way substantively did it change anything
10 that you said here today from what you filed on January 14th?
11 A. (Pause while witness reviews documents.) I don't know
12 that I see anything that is substantively different in the
13 initial report that I filed on the basis of those things, it's
14 certainly the pool of information that I had to work with and to
15 integrate was substantially larger. And --
16 Q. I understand that you have --
17 MR. WILLIAMS: Objection, he is interrupting the
18 witness.
19 THE COURT: Wait just a minute.
20 BY MR. CONRAD:
21 Q. I understand that you had additional information to look
22 at, I'm asking you how it's changed or added to your testimony?
23 A. Well, it's added to it in terms of significant detail
24 and significant information that I didn't have at the time that
25 I filed this initial report.
842
1 Q. And what in your presentation today changed or was added
2 to, what things did you testify about today that you could not
3 have testified about back in December when your attorneys filed
4 the summary of your report?
5 A. The report was -- a summary was filed in January.
6 Q. No, there was a summary of your testimony filed December
7 8th with this Court prior to your examining the defendant and
8 prior to conducting interviews on January 24th, and I'm asking
9 you what did you testify to today that you couldn't have
10 testified to back in December?
11 A. You are forgetting, I'm not familiar -- did I recall a
12 report that I filed on December 8th of this year.
13 Q. Let me hand to you what I marked as Government Exhibit
14 71.
15 MR. CONRAD: May I approach, Your Honor.
16 MR. LAUGHRUN: We would like to be heard on this if we
17 can.
18 THE COURT: All right, sir.
19 (Bench conference not recorded.)
20 BY MR. CONRAD:
21 Q. Did you have any contact with attorneys Williams and
22 Laughrun prior to December 10th, 1997?
23 A. I don't recall my date of first contact with them. By
24 my recollection my first contact was late in November, early in
25 December of 1997.
843
1 Q. Let me approach to hand to you what has been marked for
2 identification Government's Exhibit 71 entitled Defense Notice
3 to Government of Intent to Introduce Mental Health Testimony at
4 the Penalty Phase. And I'll ask you if you turn your attention
5 to the highlighted portion on page two, and would you read that
6 to the jury?
7 A. A brief general summary of the topics Dr. Cunningham
8 will address relate to the issue of future dangerousness of the
9 defendant and future dangerousness of capital defendants in
10 general as well as potential mitigation testimony in this
11 regard.
12 Q. Now, my question to you is how is your testimony any
13 different today than it would have been on December 10th, 1997
14 as a result of interviewing the defendant for 11 hours and
15 conducting interviews on January 24th?
16 A. On December 10th, I did not have firsthand data to
17 individualize or particularize the base rates that we had
18 discussed today, so that that individualization of this risk
19 assessment is based on the information that I obtained
20 individually about this defendant and about this case, including
21 reading all of the records and interviewing him and talking to
22 third party members, that's what gave me the data base to
23 individualize or particularize my risk assessment.
24 Q. Is it fair to say that the first 36 slides you showed
25 this jury were not influenced in any way because of your
844
1 interviewing the defendant or other witnesses in this case?
2 A. Again, I didn't take a number of the slides, the slides
3 that dealt with future dangerousness, the base rate slides were
4 not directly influenced by my interviews with the defendant.
5 Some of that additional research was undertaken after December
6 10th. I continue to be a student of this literature, and some
7 of those slides were prepared and that research data I have
8 accumulated across the last couple of months.
9 Q. Did you not bring with you yesterday afternoon Barnette
10 Exhibit Notebook and through the attorneys tender it to us
11 yesterday afternoon?
12 A. Yes, I did.
13 Q. And were those a compilation of slides many of which you
14 used today?
15 A. Yes.
16 Q. And you indicated that you didn't keep a number of the
17 slides, I numbered them as you went through them, would you like
18 to take a look at the first 36 and tell me which ones were
19 influenced by your interview of the defendant?
20 A. Be glad to.
21 Q. What I'm looking for, Doctor, is which of the first 36
22 slides that you presented to this jury are any different today
23 than they were December 10th of last year before you ever
24 interviewed the defendant.
25 A. (Pause). The slides on base rates would be no different
845
1 whether we are talking about this defendant or another, the base
2 rates are the same.
3 Q. They are the same slides that you presented in Richmond,
4 Chicago, Arkansas, Texas and other places where you have
5 testified in death penalty cases, are they not?
6 A. Some of the slides have been utilized as I testified
7 about base rates in other places, some of these slides have not
8 been presented at all.
9 Q. How have your interviews of the defendant or other
10 witnesses in this case changed in any way your risk assessment
11 of this particular defendant?
12 A. My initial impression of the defendant -- well, before I
13 interviewed him or before I collected the data, I didn't have a
14 particularized risk assessment of this defendant. I had, you
15 know, significant knowledge of the base rates that apply but I
16 didn't know this defendant to individualize that risk assessment
17 to him. So everything that I undertook after that was to gather
18 data to individualize this risk assessment to this defendant.
19 Q. Have you ever testified in a death penalty case and
20 given testimony that after the particularized process that the
21 defendant was a risk of violence?
22 A. In every case that I have testified in I have identified
23 that the defendant has some risk of violence. What I have given
24 is a base rate and I have individualized that base rate, and in
25 each one of those cases there is some risk. And I have simply
846
1 attempted to assess the degree of that risk as closely as
2 possible.
3 Q. I think one of the last statements that you made is that
4 the likelihood of this defendant being a risk of danger is very
5 low in the future?
6 A. Confined for life in federal prison, that's correct.
7 Q. And have you ever testified in a death penalty case
8 about any defendant and concluded otherwise?
9 A. The base rates are such -- the base rate likelihood of
10 violence in this group is very low. The individualized factors
11 that I have looked at in those other cases have not persuaded me
12 that the degree of risk with that defendant was far beyond that
13 low base rate estimate.
14 Q. I listened to your presentation and I'm aware of your
15 opinion, but the question I asked you was, have you ever
16 testified in a federal death penalty case and concluded other
17 than your conclusion here today? That can be answered with a
18 yes or no.
19 A. My conclusion in all of those other cases was that there
20 was a low risk.
21 Q. Okay. Now, you are not affiliated in any way with the
22 Bureau of Prisons are you?
23 A. No, I'm not.
24 Q. Not affiliated with the Texas Department of Corrections?
25 A. No.
847
1 Q. You indicated that you are board certified, when did you
2 get board certified?
3 A. In February 1995.
4 Q. Was that about the same time you started testifying in
5 death penalty cases?
6 A. My first death penalty case that I was involved in was
7 prior to that, perhaps a couple of years before that, but that
8 had been the only death penalty case that I was involved in
9 prior to becoming board certified.
10 Q. I believe you testified to at least either death penalty
11 cases or habeas cases, how many times have you testified
12 concerning risk assessment in those type of cases?
13 A. As I described, I believe in six federal cases, an
14 active sentencing and once in federal habeas that I testified
15 regarding risk assessments in capital cases, and in four state
16 cases that were in active penalty and one habeas regarding
17 future dangerousness.
18 Q. And those have all been in the last couple of years?
19 A. That's correct.
20 Q. And there is a 20 year gap between the time you obtained
21 your Ph.D. and the time you obtained your board certification?
22 A. That's correct. It's not unusual in psychology for
23 board certification to be something that's delayed . In
24 medicine it's typical that individuals are board certified as
25 soon as they finish their residency and it's virtually kind of
848
1 an entrance credential. In psychology, board certification is
2 not at all universal, it's a relatively unusual thing, and it's
3 intended to identify individuals who are more senior in status
4 and are practicing at the highest levels of expertise. So it's
5 not a routine credential. And most of my forensic colleagues
6 obtained their board certification in forensic psychology in mid
7 life.
8 Q. So there is a 20 years gap between obtaining your Ph.D.
9 and your board certification?
10 A. I obtained my Ph.D. in 1978 and I was board certified in
11 1995, so that's 16, 17 years.
12 Q. Now, you take this slide show and testify all over the
13 country, do you not?
14 A. I have used these overheads and have testified about
15 risk assessment in many different jurisdictions.
16 Q. Chicago in November?
17 A. That's correct.
18 Q. Richmond in July?
19 A. That's correct.
20 Q. Hot Springs, Arkansas in June?
21 A. That's correct.
22 Q. Louisiana, Texas?
23 A. That's correct.
24 Q. How are you paid in these cases?
25 A. I'm paid by the hour for my time.
849
1 Q. It's a fairly lucrative part of your practice, is it
2 not?
3 A. I'm not sure how to respond to the characterization.
4 Q. Let me ask you a straightforward question. How much
5 were you paid in Hot Spring, Arkansas for your testimony,
6 evaluation and testimony there?
7 MR. LAUGHRUN: Objection to relevancy.
8 THE COURT: Overruled.
9 THE WITNESS: First I'm not paid for my evaluation or my
10 testimony, I'm paid for my time.
11 BY MR. CONRAD:
12 Q. How much income did you receive as a result of your
13 participation in the federal capital case in Hot Springs,
14 Arkansas in June of 1996?
15 A. I'm not going to be able to quote you an exact figure,
16 but it was someplace in the neighborhood of $21,000.
17 Q. Have you ever testified for the government in a capital
18 case?
19 A. I have not been asked to testify by the government in a
20 capital case.
21 THE COURT: The question was have you ever testified,
22 can you answer the question and then you can go back and
23 explain.
24 THE WITNESS: No, I have not testified for the
25 government. And if I might expand, I have not been asked by the
850
1 government to testify although I'd be glad to do that. I'm not
2 sure that this statistical information is helpful to the
3 government's position in these cases.
4 BY MR. CONRAD:
5 Q. In addition to the 11, approximately 11 matters you have
6 testified in, how many are pending at this point where you've
7 been retained as an expert witness in either a death penalty
8 case or a habeas case related to the imposition of the death
9 penalty?
10 A. Again, I don't know that I can speak with certainty
11 about that, and I have not prepared a list but I would expect
12 that there are 8 or 10 cases that I have been contacted about.
13 Q. Now, the Hot Springs, Arkansas case, that involved a
14 defendant named Trinity Ingle, did it not?
15 A. Yes.
16 Q. Do you recall testifying in that case about two sharp
17 instruments possessed by Trinity Ingle in jail?
18 A. Yes, I did.
19 Q. And were they referred to in court as shanks?
20 A. That was a characterization of them by the government,
21 that's correct.
22 Q. What was your characterization?
23 A. Well, these were two instruments that Trinity Ingle had
24 in his cell. One was a water color paint brush that had the
25 point sharpened on it, and the other was a razor, a plastic like
851
1 Bick disposal razor that he had broken open and had taken the
2 blade and using a match melted the end of the plastic and
3 attached the blade to it, and these had been in open view in his
4 cell for apparently a couple of weeks.
5 And what he was doing with them is he would take an
6 athletic sock and use the pointed end of the water color brush
7 to tease out the elastic and use the sharpened blade to cut the
8 elastic until he had all the elastic out of the sock. And then
9 he unraveled the sock into one long line of yarn. And then he
10 had taken that and had knotted a very intricate necklace out of
11 it and also had done this intricate knotting of the letters
12 spelling out Twitty, which was his nickname, Twitty Bird,
13 because he was a small slender guy, head seemed a little large
14 for his shoulders, and he had this nickname, so he was making
15 himself a necklace with these instruments with that.
16 Q. Did you also testify that a baton he had with 12 double
17 A batteries inside which was described as a weapon was actually
18 a home made baseball bat?
19 A. Yes, I did. By his description, it's my understanding
20 it had some batteries that he rolled newspaper around and then
21 had taped that or wrapped it with his twine, and had a little
22 ball that was the ball out of a deodorant roll on tube, and
23 would take that outside to the rec yard and use that to wack his
24 little ball up against the wall. And apparently he had it for a
25 week or so until the staff determined that this could
852
1 potentially represent a security hazard and took it away from
2 him.
3 Q. Did you characterize Trinity Ingle in court as a low
4 risk of violence?
5 A. That was my testimony based upon base rates that I
6 described.
7 Q. Do you recall testifying in Richmond, Virginia in the
8 Dean Beckford case in July of last year?
9 A. Yes, I did.
10 Q. And did you testify there that someone who carries a
11 weapon in prison for quote, self protection, end of quote really
12 reduces the degree of risk of violence?
13 A. I'm not sure that -- I don't recall that
14 characterization specifically.
15 Q. Do you recall testifying about an attack on an inmate
16 with a razor embedded in a plastic holder and testifying that
17 that would only modestly affect the increase in risk because
18 some of the factors that produced it including the stress of
19 trial, and that quote, some willingness to protect yourself
20 might be seen as phenomena that lowers the risk of serious
21 violence?
22 A. Yes, I recall that. If someone in prison behaves in an
23 overly passive fashion and does not stand up for himself, then
24 inmates who are around him who are more violent and more
25 predatory will begin to prey on him. So there is a need for a
853
1 person to try to stand up for himself and protect himself in
2 that situation that others don't see him as someone to prey on.
3 When somebody a being preyed on and doesn't defend
4 themselves along the way, they increase potentially the
5 likelihood eventually of having to stand up in a very dramatic
6 way, or retaliate in a more significant fashion so the minor
7 skirmishes that helped kind of establish someone's boundaries
8 while increasing the likelihood of kind of fight sort of
9 violence, may reduce the likelihood of a more substantial
10 violence in the long run.
11 Q. I believe you testified concerning base rates that one
12 of the studies that you relied upon was the Texas study
13 involving 92 death row inmates who in one form or another had
14 the death sentences commuted?
15 A. That's right, that's the first chart that was put up
16 today.
17 Q. And your conclusion was that murderers are less
18 dangerous in prison than other inmates?
19 A. Yes, when you look at the base rates of violence rather
20 than being disproportionately more likely to engage in serious
21 violence in prison, they as a group are disproportionately less
22 likely from that study.
23 Q. Would you agree with me that the key to the accuracy of
24 your assessment is determining a group in which the defendant
25 actually belongs?
854
1 A. That's correct, that was why we were looking at him in
2 terms of other capital offenders in terms of long-term inmates,
3 in terms of being someone who is in federal prison, as being
4 someone who is in federal high security prison. Those were all
5 attempts to try to characterize him by different groups and
6 evaluate what the base rate likelihood of violence would be
7 within each group.
8 Q. You agree that group characteristics that are not
9 sufficiently defined will cause the predictions that you make to
10 be considered invalid?
11 A. If the person simply has no correspondence to the group
12 that you are using to compare them to, then obviously your
13 prediction, your estimate is going to be faulty. In most cases
14 in a risk assessment, the person that you are talking about is
15 not going to be a perfect match with the whole group, but
16 instead it's as close -- it's a close fit. You try to work for
17 the nearest possible group fit, and as I described, ideally
18 there would be a study that would follow federal capital inmates
19 and look at their risk of violence over time.
20 Q. What was the average age of the Texas inmates that were
21 studied, the 92 Texas inmates, what was average age?
22 A. I'm not sure if that was recorded. Let me look in that
23 article and see. (pause.)
24 I don't think the age of the inmates was specified in
25 this study.
855
1 Q. How many of those inmates were in custody for committing
2 more than one murder within a 24 hour period of time?
3 A. That I don't think is reported among the offense
4 characteristics of these inmates.
5 Q. How many of these inmates were in custody for committing
6 10 or more felony offenses within a six week period of time?
7 A. The periods of time prior to their arrest are not broken
8 out specifically. There is discussion in the study about the
9 number of prior offenses in general that someone has, but not in
10 specific relationship to across a three or four week or six
11 month period of time.
12 Q. And those people -- inmates were followed for seven and
13 a half year period of time?
14 A. On average.
15 Q. And do you know what happened to them after the seven
16 and a half year period of time?
17 A. That's as far as this article reported, that's correct.
18 Q. You also cited a national study, a Furman commutation?
19 A. That's correct.
20 Q. And those inmates were followed for a 15 year period of
21 time?
22 A. Up to 15 years, that's correct.
23 Q. I believe that you do know something about some of those
24 inmates after the 15 year period, do you not?
25 A. Not beyond, I don't have information beyond what is in
856
1 the article that I described.
2 Q. You know for a fact, do you not, that one of those
3 inmates killed a correctional officer outside the 15 year period
4 of time, do you not?
5 A. There may be an indications to that effect, I don't
6 recall that being reported in the article.
7 Q. Do you recall testifying to that effect in the Beckford
8 trial in Virginia?
9 A. I would again have to look in the study to refresh
10 myself, if it's described --
11 Q. My question to you is, do you recall testifying to that
12 effect in Virginia in July of last year?
13 A. No, I do not.
14 Q. Do you recall testifying in Virginia that another of the
15 subjects in that study from Ohio murdered a prison shop
16 supervisor after the 15 year period of time?
17 A. I don't recall -- I don't recall my testimony clearly in
18 that case or which article that I was referencing at that time.
19 Q. Now, you indicated that your actuarial method is similar
20 to the auto insurance business?
21 A. Yeah, that's an analogy.
22 Q. If you were to establish a base rate for accidents in
23 New York City and try to conclude something about the risk in
24 Gastonia, North Carolina would you think you had a sufficient
25 base rate to do that to be helpful?
857
1 A. It depends on the nature of the drivers that we are
2 talking about and what the actuarial studies tell us about what
3 factors are most important. For example, our actuarial data
4 might reveal that age is the primary factor, being 16 years old
5 is the primary factor, and what local you are driving in affects
6 that in only a minor way. Alternatively our base rate data
7 might tell us that age is not very important and what city I'm
8 driving in is what's fundamentally important.
9 So we look at, as we study the base rates from one
10 geographic zone to the next, do different factors seem to
11 emerge, and that's's part of the strength of this capital data.
12 To the extent that the base rates are similar from Texas to
13 nationwide to Missouri to New Jersey, then it increases our
14 sense that we can generalize that to additional correctional
15 settings.
16 Q. Do you think the auto insurance establishes rates in
17 Gastonia, North Carolina based upon driving experiences of
18 16-year-olds in New York City?
19 A. I can't tell you with certainty exactly how they arrive
20 at their rates there in Gastonia and how much they factor in
21 place as opposed to age.
22 Q. Would you also agree that another analogy for what
23 you've done here today with your rate assessment is similar to
24 predicting the weather?
25 A. That's another analogy in that the weather forecaster
858
1 also uses scientific methods, doesn't tell you for certain, yes,
2 it's going to rain or no, it isn't, but instead gives you a
3 percent likelihood of that phenomenon. And that analogy is one
4 that has been used in, again, the conceptual literature that was
5 a studied about a year ago in the American Psychologist that
6 referred to it in that fashion.
7 Q. And you have testified before under oath in other
8 jurisdictions that it's similar to predicting the weather?
9 A. I made that analogy as well.
10 Q. Let me approach and hand you again the three ring binder
11 entitled Barnette Exhibits which I understand you to have
12 provided to us yesterday and ask you if you would turn to a page
13 which I have labeled page 9.
14 Now, you have a corresponding slide that contains
15 information similar to what is on page 9?
16 A. Yes, I do.
17 Q. And what is page 9 in that book?
18 A. Page 9 is a break down of the individuals in the Texas
19 study by their prior criminal history in terms of prior
20 incidents, prior violent incidents, prior convictions for
21 violent crimes, convictions for property crimes, past adult
22 incarcerations. And it breaks out both the individuals that
23 were released from death row and those who got a capital life
24 sentence in the beginning and has a percentage for each of
25 those. And it might be easier to see, I'll be glad to put that
859
1 up.
2 Q. Sure, that will be fine.
3 A. (Witness puts slide on projection screen.)
4 Q. This is a slide that states at the top, Inmate Prior
5 Criminal History?
6 A. That's correct.
7 Q. And you have used this slide in testimony before in
8 situations where the particular defendant you were testifying
9 for did not have a significant criminal history?
10 A. That's correct.
11 Q. Now, how is prior incident defined in that slide?
12 A. It says, includes every known contact with a police
13 agency.
14 Q. So that if a particular defendant had five or
15 more -- strike that.
16 If someone had five or more prior incidents, only 35
17 percent of those 92 death row inmates had five or more prior
18 incidents, is that correct?
19 A. That's correct, that is the highest representative
20 percentages of both the folks released from death row and the
21 life sentence group.
22 Q. So that if a particular defendant had five or more prior
23 incidents he would be different than 65 percent of the 92 death
24 row inmates?
25 A. That's correct, or consistent with 35 percent of them,
860
1 and which is also the modal distribution here of being the
2 largest percentage represented, so 65 percent that he is not
3 consistent with and 35 percent that he is.
4 Q. Right. How about prior violent incidents, how is that
5 defined?
6 A. Prior violent incident are defined as -- includes
7 violent arrests from serious such as murder to minor such as
8 fighting.
9 Q. So that if -- only 11 percent of those death row inmates
10 had three or more prior violent incidents, correct?
11 A. That's correct.
12 Q. So that if a particular defendant such as Aquilia
13 Marcivicci Barnette had three or more prior violent incidents,
14 he would be different than 89 percent of the 92 death row
15 inmates in the Texas study?
16 A. That's correct, 11 percent had three or more and 89
17 percent had fewer than that.
18 Q. Turn to convictions for violent crime, how is that
19 defined?
20 A. Convictions for violent crimes includes murder,
21 aggravated assault, armed robbery and rape.
22 Q. So that if a defendant had prior convictions for violent
23 crimes one or two, he would be different than 85 percent of
24 those inmates studied?
25 A. If his convictions were for murder, aggravated assault,
861
1 armed robbery or rape, if that's what the convictions were for,
2 and he had two or more, then he would be discrepant in that
3 way. If they did not include those issues, then he would fall
4 into another group.
5 Q. How about convictions for property crimes?
6 A. Property crimes are identified as burglary, auto theft,
7 arson and larceny.
8 Q. Would it include breaking and entering?
9 A. Not according to this chart, I'm not sure where that
10 would go. Property crimes are oriented towards crimes that are
11 done with an intention of profit, by my understanding, that may
12 be the implication here. I'm not sure where breaking and
13 entering falls into this, perhaps under every known contact with
14 the police since this really isn't burglary, auto theft, arson
15 or larceny.
16 Q. Let's talk about adult incarcerations. If a defendant
17 had three or more, he would be different than 93 percent of the
18 death row inmates?
19 A. That's correct, the feature of this that I'm not certain
20 about is whether by adult incarcerations in the study they are
21 talking about prior prison incarcerations or prior jail
22 incarcerations, in terms of the three or more periods of
23 incarcerations.
24 Q. This is a slide that you have used elsewhere but not
25 here today?
862
1 A. That's correct. I had a lot of slides and was trying to
2 be sensitive to the fatigue of the jury.
3 Q. Uh-huh. How about your slide on the type of homicide,
4 do you have that with you today?
5 A. Certainly do.
6 Q. Would you put that up for the jury.
7 A. (Witness complies.)
8 Q. What does that slide depict with respect to the 92 death
9 row inmates that were studied in the Texas study?
10 A. This slide depicts what I described in my testimony on
11 direct that within this group of offenders in the Texas study
12 these are the elements of capital murder from the individuals
13 that were released from death row into capital life terms, and
14 these were the ones sentenced to capital life from the
15 beginning. And these represent elements of capital murder and
16 what percentage of the individuals was involved in each of
17 these.
18 Q. Well, something you did not testify to on direct, I do
19 not believe, and correct me if I'm wrong, is the category,
20 relationship to victims, did you testify about that?
21 A. I don't think so.
22 Q. Why don't you go ahead and tell the jury what that
23 category is.
24 A. The relationship to the victim involves what percentage
25 of these individuals, whether the murder involved the murder of
863
1 a stranger or whether the murder involved someone who was not a
2 stranger. And in this case, we have one of each, there is the
3 murder of a stranger and the murder of a nonstranger.
4 Q. You understand from your review of the discovery, do you
5 not, that Donnie Lee Allen was a total stranger to Mark
6 Barnette?
7 A. Yes, I do.
8 Q. So that with respect to that murder, he is different
9 than 75 percent of the Texas inmates, correct?
10 A. No, the relationship of the victim, 75 percent of those
11 were strangers to the perpetrator.
12 Q. Oh, I see.
13 A. So he is consistent with a large group of those here.
14 The nonstranger aspect of this study involves the 25 percent,
15 the -- murder is -- relatively high percentage of murder
16 involves individuals who are known to the defendant, many of
17 those though are not in a capital setting.
18 Q. Okay, but the murder of Robin Williams would qualify as
19 a murder that is different than 75 percent of the murders
20 reflected in the death row study?
21 A. That's correct. 25 percent of these individuals killed
22 someone who was a nonstranger.
23 Q. What percentage of those individuals killed both a
24 nonstranger and a stranger?
25 A. That's not broken out. I can't provide you with that
864
1 information.
2 Q. This was a slide that you have used in other
3 jurisdictions but not here today?
4 A. That's correct. This slide is, or one very similar is
5 contained in the article that reported this study.
6 Q. Now, one of the slides that you did use was a slide
7 involving the Factors Associated With Violence in the First Six
8 Months in Federal Prison Confinement, do you recall that slide?
9 A. Yes, I do.
10 Q. And two of the three factors in that slide would fit
11 this defendant, would it not?
12 A. Yes, they would. The younger age again, the age range
13 in that study as I recall was from 18 to 30, and so he is not
14 down in the lowest end of that age range, but I would
15 characterize him as being on the younger side in terms of that
16 study. In terms of more prior arrests and convictions, he has a
17 number of prior arrests, all, you know, involving domestic
18 situations, there is not a spectrum of arrests he has, but he
19 has had multiple arrests.
20 Q. In multiple jurisdictions?
21 A. That's correct.
22 Q. Male and female victims?
23 A. There are both male and female victims, the male victims
24 involved in each case are in a context of a disturbed
25 relationship with a female.
865
1 Q. Did you testify in Richmond last year that Dean Beckford
2 was a low risk because he did not have prior violent
3 convictions?
4 A. I don't recall that I identified him specifically as a
5 low risk for that reason alone. As we individualize the risk
6 assessment, that may have been one of the issues that I
7 identified that could have a potential bearing.
8 Q. I have a transcript, would you like to see it?
9 A. I certainly would, be glad to.
10 Q. If you turn your attention to the United States v.
11 Beckford case, and if you turn to page 69 of that case. Does
12 page 69, carry over to 70, indicate testimony concerning the
13 chart we previously have seen concerning the prior criminal
14 histories?
15 A. Give me a moment and let me review this. (Pause.)
16 In response to your earlier question, this testimony
17 does not reflect that I said that he was a lower risk because of
18 an absence of prior arrests for violent offenses. In my
19 testimony here, I was identifying the distribution of
20 individuals by the percentages on the chart and where he fell
21 associated with those. But I don't see a statement that
22 reflects about a specific risk assessment to him.
23 Q. Go ahead and read carry over to 71.
24 A. Okay. (Pause.) I have read those, and there is nothing
25 here where I'm making a specific individualized risk assessment
866
1 about him in response to this table. I'm simply pointing out
2 where he is in relation to the table.
3 Q. Do you recall testifying in the Beckford case which
4 involved the defendant participated in more than one gang
5 related murder --
6 MR. LAUGHRUN: Objection, objection.
7 THE COURT: Let him get the question out first. Start
8 over.
9 BY MR. CONRAD:
10 Q. Dean Beckford was a defendant who was involved in a gang
11 and involved in multiple gang related murders, correct?
12 MR. LAUGHRUN: Object to relevance.
13 THE COURT: Overruled.
14 THE WITNESS: Some of the specifics of case I may not
15 recall as clearly as it's been a number of months. As I recall,
16 he was convicted of participating in a continuing criminal
17 enterprise. Whether that was a gang or not is perhaps difficult
18 to characterize specifically.
19 BY MR. CONRAD:
20 Q. It was a drug organization?
21 A. There was drug-related trafficking, and he was convicted
22 of that in a continuing criminal enterprise case, that's
23 correct.
24 Q. Did you testify that he was low risk because he was
25 older than 30, lacked prior arrests and came from a stable
867
1 family?
2 A. I described that he was a low risk because of the base
3 rates about capital offenders. As I individualize those base
4 rates to him, there are factors such as you identified that
5 reduce the likelihood of his behaving in a violent fashion in a
6 prison environment and among those included his age as well as
7 some other characteristics that I think are beyond -- in
8 addition to the ones you just described.
9 Q. Did you testify in the United States v Ingle case in
10 Arkansas that there will always be mitigating factors in a death
11 penalty case?
12 A. Yeah, I think that in most instances there will be
13 mitigating factors that are present. Those may not rise to a
14 level outbalancing the aggravating factors in the minds of the
15 jury, but I would expect that in all instances there are
16 features about someone's history that are relevant for the jury
17 to hear and to weigh.
18 Q. Having flown in from Abilene, Texas yesterday, is it
19 fair to say that you were never present when any of the events
20 of the defendant's life that you testified about occurred?
21 A. No, I was not present when during those events, I only
22 had those reported to me by third parties that I have spoken to,
23 his description, interviews that Cindy Maxwell undertook, and
24 records.
25 Q. Would you say that when you interviewed the defendant a
868
1 couple days before jury selection in this trial and interviewed
2 other people January 24th when this trial started, that the
3 defendant and his family knew that his capital murder trial was
4 about to occur?
5 A. Certainly they did.
6 Q. And did that in any way affect your assessment of his
7 candor?
8 A. I am always reasonably sceptical of the interview
9 information that I get from any defendant, whether it's in a
10 capital case or other cases, which is part of why I think it's
11 so important to review records and to talk to third parties, not
12 just family members but if possible to get information from
13 employers and guards and police officers and people who are --
14 who can give both varying perspectives and are less likely to be
15 influenced perhaps by the pending trial.
16 Q. Did you reflect in any portion of your page and a half
17 report or in your presentation today those areas if any that you
18 were skeptical of the information that the defendant gave you?
19 A. I don't know that I identified -- I don't think those
20 are specifically identified in the report that I gave, nor were
21 those probed on direct. So I have not spoken to those issues.
22 MR. CONRAD: If I could have a minute.
23 (Pause.)
24 MR. CONRAD: That's all I have.
25 THE COURT: Redirect?
869
1 MR. WILLIAMS: I would just like to clear -- make
2 something clear, where is the government's exhibit, if Your
3 Honor please, Mr. Conrad that you showed this witness?
4 MR. CONRAD: I showed him a lot of exhibits.
5 MR. WILLIAMS: The notice, Exhibit 71.
6 May I approach the witness, Your Honor.
7 THE COURT: Yes, sir.
8 BY MR. WILLIAMS:
9 Q. I believe you were asked, Dr. Cunningham, whether or not
10 you filed a report. And I believe the government referred to
11 the word -- used the word report on December 10th and showed you
12 Government's Exhibit 71?
13 A. That's correct.
14 Q. Is that your report?
15 A. No.
16 Q. That's not your report?
17 A. No, sir, I did not draft or prepare this or as I recall
18 view it.
19 Q. And your name is not even on there and you didn't even
20 sign that document, did you?
21 A. Well, my name is on there as somebody who is going to be
22 coming to testify, but I didn't sign it.
23 Q. Well, that's what I meant by name on it. You didn't
24 sign that document?
25 A. No, I did not dictate or draft this or sign this, either
870
1 one.
2 Q. In all fairness, that is a document captioned, is it
3 not, Defense Notice to Government of Intent to Introduce Mental
4 Health Testimony at the Penalty Phase filed by Mr. Barnette's
5 lawyers Paul Williams and George Laughrun, is that correct?
6 A. That's correct.
7 Q. Simply notifying the government of the intent to use you
8 as an expert witness with regard to the issue of future
9 dangerousness, and that's all that notice is, is that correct?
10 A. That's correct.
11 Q. As a matter of fact, the document that you filed as a
12 report, is it not, and I will show you a document which I will
13 mark as Defendant's Exhibit --
14 MR. LAUGHRUN: 60.
15 MR. WILLIAMS: 60.
16 BY MR. WILLIAMS:
17 Q. If you didn't tender your report signed by yourself on
18 January 14, 1998?
19 A. That was filed on January 14th, I believe mine is dated
20 January 9th.
21 Q. The date of your report is January 9?
22 A. Filed January 14th.
23 Q. And that's the report that you signed -- filed at that
24 time?
25 A. That's the preliminary report, that's correct.
871
1 MR. WILLIAMS: That's all, Your Honor.
2 MR. CONRAD: Brief follow-up Judge.
3 RECROSS EXAMINATION.
4 Q. Now, the notice which is Government's Exhibit 71, in
5 that notice, there is listed under Paragraph 3 your name and a
6 brief general summary of the topics you testified about,
7 correct?
8 A. Of the general actuarial information that I testified
9 regarding. It indicates that I will testify regarding risk of
10 future violence, as I recall, you have to let me see it again to
11 tell you exactly what it says.
12 Q. (Hands document to witness.)
13 A. Yes, sir. If I were to testify for the U.S. Attorney's
14 Office, this is also the same way that I would describe my
15 pending testimony to used to describe.
16 MR. CONRAD: Your Honor, I object, that's totally
17 nonresponsive to the question.
18 THE COURT: Listen to the question and answer the
19 question. Restate your question.
20 BY MR. CONRAD:
21 Q. Paragraph 3 in that notice mentions you by name and
22 gives a general summary of your testimony, does it not?
23 A. It says I will -- yes, does not particularize the
24 defendant. It says that I will address the issues -- the topics
25 that Dr. Cunningham will address relate to the issue of future
872
1 dangerousness of the defendant and the future dangerousness of
2 capital defendants in general as well as potential mitigation
3 testimony in this regard. This does not speak to what that
4 testimony will be.
5 Q. In order for this document to be filed, you would have
6 had to communicate that information to the defense attorneys,
7 would you have not had to do that?
8 A. I would have had to communicate, this is the scope of my
9 testimony. That testimony -- this is testimony I may or may not
10 have been actually called to deliver depending on whether or not
11 the outcome or nature of it was particularized to the defendant
12 was seen as being helpful to the defendant's case I suppose.
13 But what I am going to address if I'm called to testify
14 are issues of future dangerousness about this defendant, issues
15 of future dangerousness of capital offenders in general, and
16 issues that may relate to mitigation.
17 Q. And you communicated that to those guys over there?
18 MR. WILLIAMS: Objection to the phraseology "those
19 guys."
20 THE COURT: All right, defense counsel.
21 BY MR. CONRAD:
22 Q. And you communicated that to either Mr. Laughrun or Mr.
23 Williams on or before December 10th?
24 A. I communicated that the nature of issues that I would
25 evaluate in a capital sentencing proceedings include the
873
1 defendant's future dangerousness, the future dangerousness of
2 the capital offenders in general, and the relevance of any
3 mitigation issues. And that would be the nature of testimony.
4 If someone in any capital case said, if you appear here
5 and testify, what are you going -- what are the issues you are
6 going to testify about, that's what I would identify. If I am
7 doing evaluations of competency and criminal responsibility and
8 they say what are you going to testify about, I'm going to say
9 I'm going to testify about the defendant's competency to stand
10 trial and his mental state at time of the offense. This does to
11 speak to my party determining my outcome of the conclusions of
12 that testimony. These are the areas that I'm going to address.
13 Q. And you told that to those lawyers a month before you
14 interviewed the defendant?
15 A. That those are the issues that I would testify about if
16 called, that's correct.
17 MR. CONRAD: That's all I have.
18 MR. WILLIAMS: That's all. No further questions, Your
19 Honor.
20 THE COURT: Thank you, sir, come down. Any more
21 witnesses?
22 MR. LAUGHRUN: Judge, we have a videotape to play, take
23 about two minutes to set up, if we can have five minutes to set
24 that up.
25 THE COURT: You want to take a short recess while we do
874
1 that? Do not discuss the case among yourselves.
2 (The jury left the courtroom.).
3 THE COURT: Recess until 2:50 if that's enough time.
4 (Brief recess.)
5 MR. CONRAD: Your Honor, could we approach on the side
6 real quickly.
7 THE COURT: Yes.
8 (Bench conference not recorded.)
9 (The jury returned to the courtroom.)
10 THE COURT: Members of the jury, remember when we
11 started the court reporter had not arrived, I just started after
12 the lunch period. As I recall I asked Mr. Conrad to repeat
13 everything that had been done and the witness did too. In any
14 event disregard anything that was said while the court reporter
15 was not here. I don't think there is any conflict. Thank you.
16 Is that satisfactory?
17 MR. LAUGHRUN: Yes, sir, no objection. And that was
18 what was discussed just a second ago, and no objection to that
19 at all.
20 Judge, at this time we would offer Defendant's Exhibit
21 19 which has been stipulated to by the government.
22 THE COURT: 19.
23 MR. LAUGHRUN: It is a videotape of part of
24 Mr. Barnette's confession. It's set up and I would like to play
25 that for the jury at this time, if Your Honor please.
875
1 THE COURT: Okay.
2 (Videotape played for the jury. )
3 MR. LAUGHRUN: Judge, at this time we have some exhibits
4 to offer. At this time we offer Defendant's Exhibit 2, 2 A, 11,
5 17, 21, 26, 26 A, 27, 28 A through D inclusive.
6 THE COURT: A, B and C.
7 MR. LAUGHRUN: I'm sorry, Your Honor?
8 THE COURT: A, B and C.
9 MR. LAUGHRUN: 29 A, B, C and D, 33, 37. 37A, Judge, is
10 a big blowup of 37; 38 and 38 A, which is a big blowup of 30 A;
11 39 and 39 A, which is big blowup of 39; 42, -- 32, I'm sorry, I
12 had one out of order; 32, 45, 46, 47, Your Honor, A through I,
13 and 47 J, K and L that was mounted on the poster board. Your
14 Honor, 48 A, B, C and D; 49, 50, 51, 52, 53 A, 53 B, 56, 58, and
15 the life line, Your Honor, which the jury saw this morning which
16 is 43, and the blowup of that, 43 A. If we did not offer that,
17 we would offer that at this time. And 59 I believe Your Honor
18 was the exhibit book that the jury saw this morning with the
19 time line and the artwork if Your Honor please.
20 THE COURT: 59, I think, was the notebook, I believe.
21 THE CLERK: 59 was the black notebook, Cunningham
22 notebook.
23 MR. LAUGHRUN: 59. Judge, and we would like to pass
24 these exhibits, they have not been distributed to the jury and
25 publish these to the jury at this time if we can.
876
1 THE COURT: Photographs?
2 MR. LAUGHRUN: Some are photographs, some are documents,
3 some of them are court records and the like, if we can pass
4 those to the jury, if Your Honor please.
5 THE COURT: All right, let them be admitted. Any
6 objection to those.
7 MR. WALKER: (Shakes head.)
8 THE COURT: They will all be admitted.
9 MR. LAUGHRUN: And judge, Exhibit 40, I apologize.
10 THE COURT: 40?
11 MR. LAUGHRUN: Yes, sir.
12 THE COURT: Let's it be admitted. Is that the front
13 page, I guess.
14 MR. LAUGHRUN: Whole thing, I don't care for them to
15 look at the whole thing, just the front page.
16 THE COURT: They are not going to sit here and read the
17 whole paper?
18 MR. LAUGHRUN: No, sir.
19 MR. CONRAD: Your Honor, could we approach while the
20 jurors are looking at the exhibit.
21 (Bench conference not recorded.).
22 MR. LAUGHRUN: May I approach the clerk with these
23 exhibits, they were offered and viewed by the jury in phase
24 one,.
25 THE COURT: Yes, sir.
877
1 Mr. Conrad, to save time, will you check with Ms. Grier
2 to make sure everything is in.
3 MR. CONRAD: Yes, sir.
4 (Long pause while jury looks at documents.)
5 THE COURT: I believe everybody has now seen all of the
6 exhibits.
7 (Jurors nod heads.)
8 THE COURT: Members of the jury we will recess for the
9 evening and ask you to come back in the morning at 9:30. Do not
10 discuss anything with anyone about this case, do not look at
11 anything on TV about it. Be careful going home, there is a
12 little rain out there. See you tomorrow morning at 9:30, have a
13 nice evening.
14 (The jury left the courtroom.)
15 THE COURT: Mr. Laughrun, are you going to rest before
16 the jury tomorrow morning.
17 MR. LAUGHRUN: That's fine.
18 THE COURT: I want to ask your client now.
19 MR. LAUGHRUN: Yes, sir.
20 THE COURT: Mr. Barnette, I assume you have been advised
21 that you could testify and you know you have a right to testify
22 in this case, is that correct?
23 THE DEFENDANT: Yes, sir.
24 THE COURT: Have you decided that you do not wish to
25 testify in this case?
878
1 THE DEFENDANT: That's correct.
2 THE COURT: You understand that you do not have to
3 testify but you have been informed that you have a right to
4 testify? Do you want to testify?
5 THE DEFENDANT: No, sir.
6 THE COURT: You do not want to testify, is that
7 correct?
8 THE DEFENDANT: That's correct.
9 THE COURT: Recess until tomorrow morning.
10 MR. LAUGHRUN: We had a bench conference earlier about
11 scheduling of witnesses for tomorrow and that's all that was
12 discussed.
13 THE COURT: Recess until tomorrow at 9:30.
14 (Court in recess.) Al exhibit home thing that took place
15 at the bench conference was /SKEDZ /KWRULG for today, tomorrow
16 and the rest of the evenings.
17 THE COURT: Recess until 9:30
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