Alexander spoke slowly. “I trust the jury will do the right thing, not only because of Angela but for the good of us all. I don’t want anyone else to go through what my family has suffered, and unless the defendant is put to death, there will always be a fear in the back of my mind that he might get out of jail and kill again.”
“That’s all I have from this witness.”
David had a series of questions prepared but, with an instinct many lawyers don’t have or never acquire, he decided to keep his mouth shut.
“No questions of Mr. Hightower,” he said.
“The State rests,” Joe said.
“Ladies and gentlemen,” the judge said, “we will break for lunch. Counsel, if you could remain behind for a couple of minutes.”
After the jury and Mr. Hightower were gone, the judge addressed Mac.
“Mr. McClain, do you intend to handle the balance of the defense during this phase of the trial?”
“I am available to assist, but Mr. Moreland is going to present our proof and argue to the jury.”
The judge picked up his gavel and tapped it lightly against his palm. “I do not want any conduct that would support a claim of ineffective assistance of counsel.”
It was a known tactic of a few defense lawyers to purposely commit legal errors in a death penalty trial in order to increase the likelihood of a reversal down the road in the appellate courts. Mac resented the judge’s implication.
“I understand your point, Your Honor,” he said, controlling his emotions. “Let me assure you that every decision has been made with a goal of providing the best defense for Mr. Thomason. Mr. Moreland’s cross-examination of the prosecution psychiatrist should speak for itself.”
“I want to know if the defendant has been consulted about this matter,” the judge persisted.
“Of course, Your Honor,” Mac said
“Mr. Thomason,” the judge addressed Pete. “Do you want Mr. Moreland to assume primary responsibility for this phase of your case?”
“Yes, sir. We discussed it earlier.”
“Very well. Mr. Moreland, how long will your side of the case take?”
“Two to three hours,” David said.
“All right. Gentlemen, be prepared to discuss requests to charge at the close of the defense’s case and argue to the jury by late this afternoon.”
Before Pete was taken back to the holding cell, he turned to David. “There is no way the psychiatrist spent three hours with me. It was more like an hour and a half.”
Anna Wilkes was due to arrive in a few minutes and David wanted to go back to the office to get some papers he’d forgotten to put in his briefcase. Walking up the sidewalk, he asked Mac, “Would the jail have a record of the amount of time Dr. Newburn spent with Pete?”
“Possibly. Do you want to check?”
“Is there someone you can call?”
Mac thought a moment. “Yes, there is.”
When they returned to the courthouse, Dr. Anna Wilkes, dressed in a tan suit, was standing in the room where the witnesses waited until called to testify.
“Am I late?” she asked.
“No. We’re on lunch break,” Mac said.
Concern etched on her face, she said, “I’m sorry about the verdict.”
“It’s a hard one to figure,” Mac shook his head. “Juries are so unpredictable; you never know what they are going to latch on to from the testimony.”
“How’s Pete?”
“Devastated.”
“Did Dr. Newburn testify yet?”
“Just finished. He started out as a big piece of marble, but David chiseled away at him until he was a little pebble.”
Twenty minutes later the bailiffs led the jury back into the jury box, and the lawyers reassembled at their tables. Fred Davidson, the correctional sergeant whom Mac had called, stuck his head in the back of the courtroom. Mac quickly walked over to him.
“Here it is,” Fred opened the jailhouse log and showed it to Mac.
Mac quickly read it. “This will help,” he said. “David Moreland will be the one to call you to the witness stand and ask you a few questions about it.”
David called Fred as his first witness and, after having him explain his position at the jail, asked him about the day of Dr. Newburn’s visit.
“Were you on duty?”
“Yes, sir.”
“Were you in charge of keeping the log of people coming in and out of the jail to meet with prisoners?”
“Yes.”
“Do you have the official record with you today?”
“Yes.” Fred put the open book on the edge of the witness stand.
“Please tell the jury about the entry for Dr. Newburn’s visit with Peter Thomason.”
“Okay. Dr. Newburn arrived at 4:11 P.M. and left at 5:40 P.M.”
“How much of that time would he have been with Pete Thomason?”
“It takes at least three or four minutes to bring a prisoner down to the interview rooms, so he was with Thomason for about an hour and a half.”
“Not three hours?”
“No.”
David put his hands behind his back. “By the way, do you also have the record of the visit by the psychologist who evaluated Mr. Thomason?”
“That was sometime before the psychiatrist?”
“Yes.”
Fred flipped a few pages back in the log. “Here it is. Dr. Anna Wilkes arrived at 1:08 P.M. and left at 5:52 P.M.”
“Would that mean she spent more than four and a half hours with Pete?”
“Yes.”
Joe didn’t have enough questions to build up a head of steam.
“Sergeant Davidson, do you know what happened during Dr. Newburn’s interview of the defendant?’
“No, sir. I was at my desk outside the interview room.”
“And your desk can be a busy place, can’t it?”
“Sometimes it’s very hectic.”
“So could the accuracy of your records be affected by the number of other distractions that occupy your attention?”
Fred narrowed his eyes. “One of my main jobs is to monitor the visitors coming in and out of the jail. If I don’t keep accurate records, I could lose my job.”
Joe took a step back. “And you don’t know how much time the psychologist spent actually testing the defendant, do you?”
“No. I just know when she arrived and left.”
David stood and called out, “The defense calls Dr. Anna Wilkes.”
The bailiff went to the witness room, and in a few seconds Anna appeared, walked directly to the witness stand, and raised her hand. At the conclusion of the oath, she said, “I do,” in a clear voice.
David asked the necessary questions about her educational and professional qualifications, then moved to her evaluation of Pete.
“What was the nature of your psychological evaluation of Pete Thomason?” he asked.
“Clinical interview and testing.”
“Do you have a copy of your report with you today?”
“Yes, sir.”
“What tests did you perform?”
Anna propped her glasses on the end of her nose and referred to the summary portion of her evaluation. “WAIS IQ testing, Rorschach, Beck’s Depression Inventory, and General Achievement Testing.”
“Please explain the purpose of each test for the jury.”
Anna gave a brief description of the origin, purpose, and methodology of each test.
“What were your findings?
“I can summarize by telling you that Mr. Thomason is not psychotic, had an emotionally deprived upbringing, and is above average in intelligence. At the time of the evaluation, he was seriously depressed.”
“Would other psychologists agree with the results of your testing?”
“Objection,” Joe said. “She can’t testify about the opinion of another psychologist.”
“Sustained. Rephrase your question.”
David glanced down for a second t
o organize his thoughts. “Could you explain the standard of review for the tests you administered?”
“Any psychologist trained in reading the answers would reach the same or virtually the same results.”
“Is a psychiatrist trained to review the tests you administered?”
“They are familiar with the tests and rely on them to help patients, but it would depend on the training received by the individual.”
“What other observations did you make?”
“The absence of any memory of the night of the murder. There had to be a reason for it.”
“And did you reach a conclusion?”
Anna leaned forward in her seat. “Yes. Mr. Thomason was either faking memory loss or it was the result of a foreign substance in his system, some drug or combination of drugs.”
“Are you familiar with gamma-hydroxybutyrate, GHB?”
“Yes. I was the one who suggested that a chemical analysis be performed to determine if GHB was in Mr. Thomason’s system. A positive finding would give a clear reason for his temporary amnesia.”
“Do you have an opinion whether Pete Thomason has violent, anti-authority, psychopathic behavior patterns?”
“Yes.”
“What is your opinion?”
Anna put her report in her lap and looked directly at the jury. “I didn’t see any of those characteristics. He is depressed, but not psychotic or psychopathic.”
“Based on your testing, would he be a danger to society in the future?”
Anna shook her head. “He can make choices that could harm others, but there is no psychological dynamic operating that makes that type of choice or behavior more likely.”
“That’s all. Thank you.” David returned to his seat.
Joe stood and began by asking, “Ms. Wilkes, who hired you in this case?”
David objected. “It’s Dr. Wilkes, Your Honor.”
“Sustained. The witness has been qualified as an expert with appropriate qualifications.”
Anna, her hands folded in her lap, continued in the same level voice she used during David’s questioning. “I was contacted by Mr. McClain’s office and paid by Echota County for my work. A copy of my report was sent to you, Judge Danielson, and Mr. McClain.”
“And you have talked several times with Mr. McClain and Mr. Moreland about this case after preparing your report, haven’t you?”
“Yes.”
“How many times have you talked with me or my staff?”
“You never contacted me, so we never talked.”
Joe stepped closer to the witness stand. “Would it be fair to say that your contact with Mr. McClain has exceeded the typical level for a psychologist working on a case for a lawyer?”
Anna’s face flushed. “We’ve seen each other in social settings on several occasions.”
“Could you tell us about that?”
Anna described the lunch at Rock Springs, the meal at her house, and dinner at Kincaid’s. Mac ground his teeth.
“Was Mr. Moreland present at any of these meetings?”
“No.”
“Did you and Mr. McClain discuss your testimony?”
“No, we talked about personal matters.”
“What does that mean?”
“We talked about our lives and backgrounds.”
Joe waited a few seconds before asking his next question. “Would you characterize yourself as romantically involved with Mr. McClain?”
David wanted to object, but Joe had the right to uncover a reason for partiality in favor of the defense. Dr. Newburn had his potential for bias. So did Anna Wilkes. Meanwhile, Mac kept grinding his teeth. If the questioning didn’t end soon, he would need dentures.
Anna smiled. “Mr. McClain is a fine man. My social contact with Mr. McClain did not develop until after I performed the testing on Peter Thomason and prepared the report I sent to the parties in this case. My testimony today is based on that report and that report alone.”
“But couldn’t your relationship with Mr. McClain influence your evaluation of his client in subtle ways?”
“My opinion is based on testing and generally accepted standards of psychological analysis.”
“So your assessment is based solely on cold-blooded facts?”
“Not totally,” Anna said. “There is a degree of opinion in every evaluation, but I think mine in this case is as objective as possible.”
“Really?” Joe raised his eyebrows. “Dr. Wilkes, are you being ingenuous with this jury?”
“Ingenuous? No.”
“Just checking,” Joe said. “No further questions.”
David called Charles Gallegly. When Pete saw him walk into the courtroom, he suddenly teared up. The kind, little man had shown him nothing but God’s love and acceptance in the midst of circumstances that were harsh and cruel.
David asked Mr. Gallegly to describe his twenty-year ministry at the jail. He then introduced Pete into the story as a continuation in the line of lives that had been changed by the power of the gospel.
“How often have you been meeting with Pete?”
“Every evening this week. Before that I saw him on at least a weekly basis.”
“How would you describe him to the jury?”
“I believe his conversion is real and his desire to grow as a Christian is genuine.”
“Why do you say that?”
Mr. Gallegly leaned forward in the witness chair. “The Bible says you know a tree by its fruit. It’s the same with a Christian whether they’ve been born again two weeks ago or thirty years ago. Pete is studying, praying, telling me about changes in his conduct and attitude. I’ve been around a lot of ‘jailhouse conversions’ and admit that many of them don’t stick, but I believe this young man is a new person in Jesus Christ.”
“What else can you tell the jury about Pete?” David asked.
Mr. Gallegly looked to Pete, who nodded.
“He told me about some incidents in his childhood. Difficult times with a man who lived with his mother and physically abused Pete when he was between the ages of eight and ten. He asked me to pray with him about what he’d gone through. That’s what I did, and we closed the book on that part of his past.”
“Do you believe Pete is a danger to society?”
Mr. Gallegly looked at the jury, which saw the same face that had welcomed scores of prisoners into the kingdom of God. “I’ll answer this way. All my children are grown, and I would let Pete come to my house and stay with me as long as he needed a roof over his head. I would go to sleep at night without any fear and wake up the next day glad that I could be around him.”
Pete rubbed his eye. Mr. Gallegly’s words of trust, even in the face of the jury’s verdict, were like water to his thirsty soul.
Joe was respectful in his probing, making Mr. Gallegly admit that two weeks is a short time to predict someone’s future behavior and re-enforcing the often transitory nature of jailhouse religion.
“Mr. Gallegly, would you agree that physical abuse of the type you mentioned can cause a child to resent authority?”
“Yes.”
“And the defendant considered this an important part of his upbringing. Important enough to mention it to you.”
“He did, so we could pray about it.”
“But before you prayed with him, the problem was unresolved, wasn’t it?”
“I guess so,” Mr. Gallegly said.
“And the defendant could still have harbored anger and resentment against authority figures based on what he suffered as a child, couldn’t he?”
“Yes, that’s possible.”
“So, you’re not telling this jury about Peter Thomason’s mental state prior to your contact with him at the jail. Only your opinion about him after you met him.”
“I didn’t know him before.”
“That’s my point. Thank you.” Joe took his seat.
“That’s all on behalf of the defense, Your Honor,” David said.
It was almost thr
ee o’clock.
“We’ll take a thirty-minute break to go over the charges and proceed to closing arguments.”
38
The winepress of eloquence.
ST. JEROME
Mac found Anna outside the courtroom.
“I apologize about the other night,” he said, standing close to her so he wouldn’t be overheard. “And I’m sorry about the questioning by Joe Whetstone, too. You handled it well.”
“That’s okay on both points,” she smiled wryly. “I’ve testified many times, but I’ve never been cross-examined about my personal feelings toward one of the lawyers in the case.”
Relieved that she wasn’t upset with him, he said, “You also said some kind things about me that aren’t justified.”
“I’m entitled to my opinion. How did he know to ask about our social contacts?”
“Either a lucky guess or he’s had me followed to see who I was talking to.”
“Would they do that?”
“If money isn’t an issue, they can do almost anything. Are you going to stay for the closing argument?”
“Yes. Are you going to do it?”
“No. It’s in David’s hands,” Mac said.
“And God’s,” Anna added.
Mac pointed to the ceiling. “I’m not sure I trust him. David thought he had a promise from the Almighty that Pete wouldn’t be convicted.”
Anna put her hand on Mac’s arm. “Don’t lose hope. God can make a way where there seems to be no way.”
The lawyers went into Judge Danielson’s chambers to go over the jury instructions. Anna sat by herself on a bench toward the back and waited. Celeste Jamison cracked open the door of the courtroom and joined her.
“I heard about the verdict on the radio and thought I should come,” Celeste said. “How long have you been here?”
“Today. I testified during the sentencing phase. All that’s left are closing arguments.”
“Have you talked to Mac?”
“Just for a minute.”
“How is he doing?”
“Discouraged. David Moreland, the young lawyer who is helping him try the case, is going to give the closing argument.”
They sat silently for a few moments.
“How have you been handling the burden of the Lord for Mac?” Celeste asked in a quiet voice.
The Trial Page 33
