by Don Lasseter
Bobby Grace wanted to be certain that no “diminished capacity” testimony would be allowed. This tactic had been commonly used for decades to convince juries that the mental states of defendants had made them incapable of forming the intent to commit a particular crime. Unlike a plea of insanity, which could result in a verdict of not guilty, diminished capacity could lead the jury to believe the defendant could not form the necessary intent to commit murder, thus could reduce the matter to manslaughter. But California voters had outlawed this type of defense in 1982 due to a notorious trial in San Francisco.
A former city supervisor, Dan White, had shot and killed two victims, Mayor George Moscone and Supervisor Harvey Milk, in 1978. The defense portrayed White as being under diminished capacity resulting from the consumption of too much junk food, largely Twinkies snack cakes. Despite other evidence of premeditation, the jury found White guilty of manslaughter. The story was told in the 2008 film Milk, for which actor Sean Penn won an Academy Award.
Larry Young argued that he wanted to show the long-term effects on Mahler of drug abuse and alcoholism. Judge Wesley ruled that Young’s psychiatrist, Dr. Samuel Miles, could testify but would not be allowed to offer an opinion indicating so-called diminished capacity.
During the discussion, David Mahler sat at the defense table with an angry look on his face, lower lip protruding and eyes glaring.
With the jury seated once again, Bobby Grace showed the videos of Ron Valdiva’s five varying routes. It took an hour, and did not make for good theater. Jurors looked sleepy, and observers seemed restless. But it produced a finding of Larry Young’s objection being overruled. A lunch break afterward revived everyone.
The next two hours would change everything.
CHAPTER 37
SWORDPLAY ON A PSYCHIATRIST
Dr. Samuel Miles came forward at one forty-five that afternoon to answer questions. He would fit most casting directors’ idea of a psychiatrist. With a high forehead, receding gray hair, a matching goatee, deep-set eyes, and wearing a gray suit, with a dark tie, he looked the part.
Jurors appeared particularly interested. This testimony could be crucial in deciding the verdict.
Larry Young asked, “Dr. Miles, what is your occupation?”
“I’m a physician. I specialize in the evaluation and treatment of psychiatric disorders and substance abuse disorders.”
Young said, “We called you now, out of order, and you were able to cancel your appointments and duties you had for today?”
“Yes.”
“As a matter of fact, sir, are you under appointment to examine the defendant, David Mahler?”
“Yes.” Following that answer, the witness spelled out his education and work history, called a curriculum vitae, or CV.
“Can you tell the jury what procedures you used to render an opinion or diagnosis?”
“In general, I rely on history, observations, and tests. In a case like this one, I obtain information from interviewing the defendant and from records provided to me. I may also ask for some testing.” He had requested some psychological and neuropsychological tests to confirm impressions gained through examinations. In addition, said Dr. Miles, he had tried to obtain hospital records from David Mahler being “psychiatrically hospitalized” when he was seventeen years old. Unfortunately, they had been destroyed.
“Did you have a chance to review police reports on the incident for which he has been accused?”
“Yes, I did.”
“In going over the testing and your observations, did you find that there was any type of mental disorder that you would characterize as being present in this gentleman?”
Spectators, lawyers, and jurors leaned forward, determined not to miss a single important word.
“Yes,” said Dr. Miles. “His presentation is consistent with bipolar disorder.”
No one on the prosecution team wanted to hear those words. The statement could undermine all of the investigation, accumulation of evidence, and testimony up to this point.
The witness continued, “It used to be called manic-depressive illness. It is also consistent with cocaine dependence, which at the time of the examination was in remission in a controlled environment... . He did not have cocaine and didn’t have access to it. He had cognitive deficits. His ability to think and reason and planning was impaired because of his chronic use of drugs.”
Observers thought that Larry Young must be ecstatic. This witness had placed a golden crown in the defense case—exactly what Young had needed. The defender asked, “Did you find any type of mental deficit due to what you say is the chronic use of drugs?”
“Yes, the deficit is in the ability to plan and reason. He is easily derailed by impulsiveness and by emotion... . On his IQ test ... he did very, very well on the verbal parts. On the performance parts, he did really not very well. This is significant. It’s the kind of difference we see in people who have difficulty with brain functioning, with planning and figuring out what to do. He’s able to talk well, but not able to do very well.”
Mahler watched and listened with rapt attention. A pink band encircled his left wrist to signify the new jail cell location.
Asked to explain bipolar disorder for the jury, Dr. Miles replied, “It is what we call a new disorder. It’s a major mental illness. It’s chronic, can be episodic, where a person suffers from changes in mood that are not related to the environment. The changes for bipolar disorder are different from straight depression in that there’s at least one episode of mania.
“Mania is sometimes thought of as the opposite of depression. Instead of feeling real bad, someone can feel real good for no good reason. But more often, there’s a kind of irritation that goes with mania. So there can be lack of a need for sleep. There can be a feeling of being on top of the world, or a feeling that one is better than everybody else. The person can be speaking more rapidly, maybe thinking so fast that they can’t keep up with themselves, easily distracted. In an extreme, we get to a kind of a speech that we call a word salad, where someone can’t finish a whole sentence because they get distracted by things around them.”
The doctor’s words seemed almost to be a picture-perfect biography of David Mahler. Was he really the poster definition of the mental illness?
Continuing his riveting definition, Dr. Miles said, “So, if someone has at least one episode of that, we call it bipolar disorder.” Observers wondered about that statement. Most people can recall having at least one episode of feeling terrific, followed by a period of depression. Did that make them bipolar?
Obviously delighted with the doctor’s definition, which appeared to be a mirror image of the defendant, Larry Young asked, “The irritability you mentioned—can you explain what that is?”
Dr. Miles explained that the condition is a defense against depression encompassing a feeling of being all powerful, denial of vulnerability to being hurt, and a need to attack any threatening event or person.
Young wanted even more. “In a rage attack, can that be a momentary thing, or is it something that goes on for a period of time?”
Rage, said the expert, will generally burn out in a short period of time, while irritability might last for days or weeks.
“When it burns out, does the person realize what they said or did?”
“Sometimes, if they’ve got the evidence in front of them, they might realize that they’ve broken something they valued.”
“What if you add to that episode the use of cocaine?”
“Stimulants make mania worse. Drugs like cocaine and amphetamines, on their own, cause irritability. Alcohol impairs judgment... . People who are bipolar, in the course of their lifetime, about two-thirds of them, will at some point suffer from substance use disorder ... to the point of losing control either periodically in a binge of abuse.”
“And you state that Mr. Mahler has been doing that since he was seventeen?”
“Yes.”
“How old is he now? Do you recall?”
>
“In his midforties.” (Mahler would be forty-five on his next birthday, in March.)
“If someone is in such a rage, could they be doing a gibberish-type vocalization?”
“That might happen, yes.”
“And could they also be screaming?”
“Yes.” The exchange brought to mind descriptions from Donnie Van Develde and Karl Norvik of David Mahler screaming at Kristin Baldwin shortly before her death.
Young elicited from the witness statements that he had studied a personal history of the defendant and had collected information from his childhood onward. Dr. Miles said, “He had a troubled childhood. His parents were divorced. He was kept from his father for a while, but he felt a close relationship with him. He had behavioral problems in school and started using quaaludes in his teens.”
Mahler’s relationship with his father had been portrayed differently by other sources who knew him. They had portrayed it as strained and full of anger.
“In your examination of Mr. Mahler, did you go into his remembrances or impressions of what happened in this incident?”
“Yes. His description was consistent with a period of being out of control. He explained that he had some interactions that evening—actually, he’d been kind of in an altered state for a while up to that point. But somebody had come by who wanted some money from him, and he was irritated by that and also threatened. He went to an ATM machine and got the money and this was around eleven thirty at night. He came back to the room and found Kristi with one of the tenants.” The witness presumably referred to Donnie Van Develde but did not use the tenant’s name. Jurors would have to decide the meaning of his words. “He was irritated by that and told the tenant to leave. He said he later realized the tenant wanted some drugs.”
“Did he indicate what the money was for?”
“He had asked this [other] person to help him scare a woman by planting some drugs on her and have a corrupt police officer make like he was arresting her. Mr. Mahler had decided not to go through with that and told the guy to call it off, but the guy was now wanting money and saying he had gotten other people involved and needed to pay them off. He was irritated by that. He felt threatened—like if he did not give the guy the money, that he would be injured.”
At the defense table, Detective Vicki Bynum glanced at Bobby Grace with a skeptical look. This alleged trip to an ATM had never been brought up in any of the previous statements. The entire story sounded to her like more of Mahler’s duplicity.
Young asked, “What happened then as he explained it to you?”
Dr. Miles’s continued account left out any reference to the individual allegedly at Cole Crest who was there demanding money. He seemed to have vanished. “Well, Mr. Mahler asked the tenant, you know, ‘Why are you here with the door shut?’ And then he argued a little with Kristi. Donnie left and then the argument was over. He was calmed down and he was naked in bed doing some cocaine. And he felt it was time for Kristi to do her thing.”
“Did he mention whether or not he had been screaming or yelling at any point that evening?”
“He did not. He called Donnie back to find out what he had been there for, and it turned out Donnie wanted drugs. He asked Kristi if she had any with her, but she didn’t respond. He asked her eight or ten times, and she still didn’t answer. He felt irritated. He snapped. He picked up the gun thinking, you know, this is—this will scare her and him into, you know, answering the question. And then he doesn’t know what happened next, but the gun went off. He doesn’t know if it went off when Donnie was trying to get it from him or whatever. He had not shot a gun since he was ten years old in camp.”
Urged by Larry Young to continue, Dr. Miles said, “Well, at the point the gun went off, Donnie left and [Mahler] doesn’t remember what he did next. But eventually he put his suit on because he wanted to get into the frame of being more organized—that, if he had a suit on, then he’s a lawyer and he’s organized and he can think. Without the suit on, he’s a drug addict and he’s all over the place and can’t think.”
To Vicki Bynum and several spectators, the story seemed increasingly bizarre, too pat, and hard to believe. A case could be made that David Mahler had taken bits and pieces from testimony at the preliminary hearing and built a patchwork narrative for the doctor. He had woven self-serving, made-up details around verifiable facts to create this scenario of an unfortunate man driven by bipolar disorder.
Young seemed to like the image of him donning a suit. “Boy, that’s almost like Clark Kent putting on a Superman suit, isn’t it?” The psychiatrist agreed. Young asked, “Now, was this consistent with your diagnosis of a bipolar individual?”
The answer may not have been what the defender expected. “It was, and it wasn’t. It was, I think, something very unusual about him.”
“Wasn’t it somewhat of a grandiose fantasy?”
“I don’t think of it in those terms, because, in fact, he was a lawyer. I thought it represented his insight into the fact that he wasn’t thinking clearly and needed to, because he was confronted by something awful.”
Young followed up with a few more questions to reaffirm the manic and the depressive aspects of Mahler’s behavior, plus the possibility that Mahler felt remorse about the event.
If Las Vegas had put odds on a verdict of murder versus manslaughter at that moment, there would have been a long line of gamblers placing tons of money on the latter.
With that, Larry Young turned the witness over to Bobby Grace.
The prosecutor first established that the evaluation by Dr. Miles had been developed after conversations with the defendant. Then he asked, “When was the first time you spoke to him?”
Dr. Samuel Miles said it took place on September 16, 2008, and again on June 30, 2009, about two months before the trial started. Most of Mahler’s account of the killing had come during the June 30 meeting.
“Doctor, how long would you estimate the defendant has had this bipolar disorder?”
“He may have had it all his life, but the first symptoms he described might have occurred during his adolescence. After that, it was fairly quiet or masked by his substances.”
An air of confidence seemed to radiate from Bobby Grace. He had the appearance of a swordsman testing the edge of his blade. “Did the defendant tell you that he graduated from college?”
“Yes.”
“Did he tell you that he graduated from law school?”
“Yes.” Observers could sense the importance of these questions.
“Did he tell you that he passed the New York State Bar the first time he took it?”
“Yes.”
“Did he tell you that he passed the New Jersey Bar?”
“Yes.”
“Did he tell you that he practiced law on his own in the New York area?”
“Yes.”
“Did he tell you that once he came to California, he started doing day trading?”
“He may have. I don’t recall that specifically.”
“Well, did he tell you how he supported himself during his time in California?”
“I’m pretty sure he did. He was practicing some law. I don’t recall if he also talked—oh yes, he did talk about some kind of stock trading. I don’t recall if that was day trading or not.”
“Did you do anything to confirm any of these uses of drugs that the defendant reported to you, other than the testing that you described?”
“The only confirmation I had was contained in the police reports with interviews of various people who described the drug use.”
“So, did you personally talk to anybody that said they saw him take drugs?”
“No.”
“Did you watch [a DVD] of the nine-hour interview the police did with the defendant after he was arrested in connection with this case?”
“No, I did not.”
A feeling hung in the courtroom that Bobby Grace’s sword had already scored “touché” several times, and the defense was goin
g to need a good supply of bandages.
“Have you heard of a term called ‘malingering’?”
“Yes. ‘Malingering’ is the conscious faking or exaggeration of symptoms in order to gain something.”
“And when you talked to the defendant about this particular incident that occurred in May of 2007, he had a law degree?”
Perhaps feeling a little feisty, the doctor snapped, “Yes, he did. I don’t think they take that away from you.”
“Nope, they don’t,” Grace happily agreed. “Doctor, about how many people in the United States suffer from what you call bipolar disorder?”
“It’s about two to three percent of the population.”
“And of these two or three percent, do many of them function on a day-to-day basis ... being able to pass a couple of bar examinations?”
“Yeah.”
“Practice law?”
“Yes, most commonly, bipolar disorder is episodic, and between episodes people function fairly well.”
“And, as far as you know, from the defendant’s reports, he had been using some kind of drugs since the age of seventeen?”
“Yes.”
“He told you that it was just about six months prior to the shooting that he started using meth, or speed, as you referred to it?”
“Yes. At one point, he said that the only drug he had used in the last twenty years—or ten to twenty years—was cocaine. And then he later corrected himself, saying that over the last six months he was using speed from time to time because of a woman he was involved with.”
Bobby Grace, pacing back and forth, nodded and said, “Well, let’s talk about that. In your interview with the defendant about the actual shooting, did he indicate to you that he was upset with Kristi because she didn’t respond to him quickly enough regarding his questioning if she had any drugs with her?” Yes. “As a result of that, did he tell you that he went and got a handgun from somewhere in the room?” Yes. “At some point, did he tell you he loaded the weapon?”
