Shattered Innocence

by Robert Scott

  Dr. Gerow said, “No, sir.”

  Judge Thompson stated, “Well, then, I rule out that evidence.”

  Because of the judge’s ruling, no juror would hear about Phil Garrido and an attempted kidnapping in the Lake Tahoe area one hour before that of Katie Callaway. And later, no parole board member would ever hear of this as well, unless they scoured the federal court transcripts.

  Leland Lutfy wasn’t taking Dr. Kuhn’s testimony at face value, and asked him on cross-examination, “During your examination, you didn’t think Mr. Garrido had any kind of thinking disorder?”

  “No, I didn’t.”

  “You didn’t think he had any kind of organic impairment?”

  “No, I didn’t.”

  “Would consistent LSD abuse somehow or other change someone physically?”

  Kuhn replied, “That is somewhat controversial. I think it does, myself, but it is not something that is demonstrable in terms of any lab study.”

  “You said at the time of the report that he did have the ability to assist his counsel in the preparation of his defense?”

  “Yes, I did.”

  “You also said at that time that he had a rational and factual understanding of the nature of the charges and proceedings against him?”

  “Yes.”

  Lutfy asked, “How do you know what length of time Mr. Garrido used LSD, if ever?”

  Kuhn said, “I don’t. But much of our work is based on calculated guesses regarding the validity of what people tell us.”

  “Is your opinion of Mr. Garrido’s mental state another calculated guess?”

  “Not so!”

  At that point, Van Hazel angrily jumped in and said, “Your Honor, I will object to the framing of a question of that type to a professional person!”

  Judge Thompson asked, “What is your objection?”

  Van Hazel replied, “I think it is one thing to cross-examine him. It is another to badger a professional witness.”

  Judge Thompson said, “Overruled.”

  Lutfy continued, “Did you ever have occasion when you are examining somebody that they lie to you?”

  “Many times.”

  “Is the defendant psychotic?”

  “No.”

  “Is he neurotic?”

  “Not technically, according to our nomenclature. I think he is.”

  “You can be neurotic and still know right from wrong, can’t you?”

  “Oh, yes.”

  “Can you be a sexual deviant and still know right from wrong?”

  “Yes.”

  “Do you think he knew right from wrong?”

  “Yes.”

  After Dr. Charles Kuhn’s testimony, Leland Lutfy brought on the prosecution’s psychiatrist to present his findings on Phil Garrido. Dr. Lynn Gerow had gone to medical school at McGill University and interned at Walter Reed General Hospital in Washington, D.C. Later he specialized in psychiatry and practiced at Letterman General Hospital and Langley Porter Neuropsychiatric Institute in San Francisco. Within the past few years, he had a private practice in Reno.

  Asked about how he formed his report on Phil Garrido, Dr. Gerow said, “On the material that was supplied to me by the defendant’s attorney, and the history that Mr. Garrido supplied to me and my examination. I felt that he was competent to stand trial, and I felt that he was responsible for the act in question. The defendant did not have a psychiatric disorder or a mental disorder. He gave me a clear, concise statement of the events in question in sequence, told me what happened from early on November twenty-second, until the next morning. There was nothing in what he told me, nothing in the mental-status examination, that one could say that he wasn’t responsible and competent.”

  Dr. Gerow agreed that during tests he administered on Phil Garrido, Phil had good remote memory, recent memory, and could do calculations. Dr. Gerow even asked Phil the meaning of a proverb. The proverb Gerow used was “There is no use crying over spilled milk.” Phil said that he knew the meaning of it, but he had never heard it before.

  Dr. Gerow asked about another maxim, “People who live in glass houses shouldn’t throw stones.” Phil did interpret that one correctly, and said, “People who are vulnerable about something should be careful. Should cover their flank in that regard.”

  As to why Dr. Gerow was asking about these proverbs or maxims, he replied that he wanted to see if Phil could think and interpret abstract meanings. And Dr. Gerow added, “You are looking either for a thought disorder or some kind of organic impairment.”

  Lutfy asked, “Did he evidence any of these?”

  “No,” Dr. Gerow replied.

  One adage in particular was interesting to Lutfy. It concerned “Those who dance must pay the fiddler.” Phil’s response to that was that he had committed a crime, and should pay for that crime.

  Lutfy asked, “Did you find anything strange about that response?”

  Dr. Gerow answered, “It seemed like a fairly appropriate abstract response from somebody in jail.”

  “Did you conclude whether or not Mr. Garrido had a sexual preoccupation?”

  “He does.”

  “What do you conclude as a result of that?”

  “Nothing. He had a lot of things, one of which was a sexual preoccupation. But that in itself didn’t lead me to any diagnosis. He had a history of being a Peeping Tom, or voyeur. He gave a history of being an exhibitionist and taking off his clothes in front of little girls. He gave a history of impulsive masturbation. These things led me to believe he was sexually deviant and had that mental disorder.”

  “What does it mean to be a sexual deviant?”

  “It means that your sex life is primarily directed toward inanimate objects, or in some way not normally channeled.”

  “Can you be a sexual deviant and still differentiate between right and wrong?”

  “Yes.”

  “Can you be a sexual deviant and still conform your conduct to the requirements of the law?”

  “Yes.”

  Lutfy asked if Phil had told Dr. Gerow about the events of November 22 and 23, in connection to Katie Callaway. Gerow said, “He went into a great amount of detail.”

  Lutfy then asked, “Is it still your opinion, after hearing all of this from Mr. Garrido about what he did, that he could conform his conduct to the requirements of the law?”

  Dr. Gerow replied, “I think he could.”

  “And it was still your conclusion, as a result of hearing all of this, that Mr. Garrido knew right from wrong at the time of the incident that occurred?”

  “Yes, he knew right from wrong.”

  On cross-examination, Willard Van Hazel had Dr. Gerow testify about what Phil Garrido had mentioned in reference to hallucinations that he suffered from, in relation to taking LSD. Dr. Gerow related, “He said he had hallucinations, and he was seeing things that weren’t there. Like he would look at a grain in the wood, and it would move a little bit. Those are very common in people that abuse LSD and other hallucinogens.”

  Van Hazel then asked, “How would you characterize his judgment?”

  “Poor judgment.”

  “Very poor?”

  “Very poor.”

  “You used the term ‘religiosity’ in your report. What is that?”

  “One of the things he was preoccupied about was religious events. He talked at length about the Bible. He had a Bible with him when I saw him and talked about the Lord and God, and he talked about it to enough of an extent that I felt he was preoccupied by those things, and therefore I used the term ‘religiosity.’”

  Asked about Phil’s use of LSD as a sexual stimulant, Dr. Gerow replied, “Without LSD, he was not sexually stimulated to any great degree.”

  After both Leland Lutfy and Willard Van Hazel were through with Dr. Gerow, Judge Bruce Thompson asked him a few questions, with the jurors listening in. Judge Thompson asked, “In your opinion, can LSD have a long-lasting effect on the brain function?”

  Dr. Gerow said
that it could. So Judge Thompson then asked, “Of what sort?”

  Dr. Gerow replied, “Taken in sufficient quantity, in some individuals, it will produce dementia. What I mean by that is memory disturbance, orientation problems, and they break down socially. They don’t have the normal social give-and-take that they once had.”

  Judge Thompson asked, if in Dr. Gerow’s estimation, “Was there any indication on Mr. Garrido that brain damage had occurred?”

  Dr. Gerow replied, “No indication of brain damage.”

  After Dr. Lynn Gerow stepped down, there was a moment of drama in the courtroom. The next witness was supposed to be Dr. Albert Peterman, the neurologist. Judge Thompson asked why that witness was not ready to take the stand, and Lutfy replied, “He was told to report to our office and then come here. He has not been to our office. Our secretary has been trying to reach him. She has not been able to do so.”

  Judge Thompson heatedly responded, “You tell him to be here at ten-thirty tomorrow morning. And if he isn’t here, I’ll get out a warrant for his arrest!”

  Dr. Peterman did show up the next day, without incident, for a short period of testimony. Dr. Peterman told the jurors about the neurological examination he performed on Phil Garrido. Asked what his conclusions were, Dr. Peterman said, “I found that he had a normal examination. I was asked specifically if there was any evidence of brain damage. I did not feel that there was. I didn’t find any impairment of his brain functions or nervous system.”

  Defense attorney Van Hazel had a few questions as well. He asked, “Doctor, would all instances of drug addiction show some type of organic change or disorder that the tests would pick up?”

  Dr. Peterman replied, “No, they would not.”

  “And would the answer be precisely that if I asked you in the instance of addiction to LSD?”

  Dr. Peterman said, “In the instance of addiction to LSD, I would likely find nothing on examination.”

  After Dr. Albert Peterman, both sides rested their cases. It basically now came down to whether the jurors thought that Phil Garrido had been so addicted to drug use that he could not control his actions when he kidnapped and raped Katie Callaway. In other words, whether his capacity to reason had been so impaired, he really didn’t understand what he was doing when he took her to the warehouse in Reno.

  CHAPTER 14

  “RIGHT NOW HE’S A DANGEROUS MAN.”

  It didn’t take long for the jury to reach a decision on Phil Garrido’s federal case. On February 11, 1977, they came back with the following decision: We, the jury, duly empaneled in the above entitled case, upon our oaths do say that we find the defendant, Phillip Craig Garrido, guilty of the offense charged in the Indictment.

  Compared to all the media attention that Phil Garrido would garner in future years, there was very little attention paid to him in 1977. A short article in the Reno Gazette-Journal stated, KIDNAP VERDICT RETURNED. A federal court jury has convicted a Reno musician of kidnapping a South Lake Tahoe woman on November 23rd. He faces Washoe County charges of possession of a controlled substance, rape and sex perversion.

  If Phil Garrido hoped for a light sentence in the federal case, he was greatly disappointed. On March 11, 1977, Judge Bruce Thompson handed down a sentence of fifty years in a federal penitentiary. Phil wasted no time firing his lawyer and appealing the sentencing. Willard Van Hazel related to Judge Thompson, On or before March 16, 1977, Mr. Garrido wrote a letter to the Office of the Federal Public Defender counsel, and the appointment of a new counsel, which indicated Mr. Garrido’s desire to file an appeal for reduction of sentence under rule 35.

  Van Hazel could not have been too happy about the reasoning in Phil’s actions. Phil was now claiming: ineffective assistance of trial counsel. In other words, he was blaming the trial performance of Willard Van Hazel. Under the circumstances of the case, however, Van Hazel had put up an extensive defense considering all the factors detrimental to Phil. The most obvious having been Katie Callaway’s eyewitness account of what had occurred. But Phil did not see things that way. Instead, he retained a new counsel, Kenneth Cory, from the federal defender’s office.

  Phil’s letter, with misspellings intact, went as follows: My appointed councel from beginning to end has not been in my behalf. Van Haizel has tried his best to keep me from trial. By telling me there was no defence. I stayed with him because I have no insight on the law.

  Phil wrote that he and Van Hazel had at one point planned to change his plea to guilty, hoping for some kind of plea deal. Phil even claimed that the judge in the case did not want to accept his plea. At that point, he and Van Hazel had returned to a plea of not guilty in the case.

  Then Phil claimed in the letter that “Van Haizel” did not come to see him until four days before trial. Phil also said that his counsel kept trying to change his mind about defense tactics. He also claimed that Van Hazel actually wanted him to go to prison.

  Phil even claimed that the defense attorney had told the judge that he thought Phil should have state time added on to federal time. At least that was Phil’s take on the matter. Phil then stated that Van Hazel never tried to help him and only turned in a lukewarm performance to keep from looking completely incompetent in court.

  Before Phil Garrido could go very far in his federal case appeal, he had to contend with charges against him in the Washoe County court system. The grand jury in Washoe County had brought a bill of indictment against Phil on three charges: forcible rape, an infamous crime against nature, and possession of a controlled substance. The “infamous crime against nature” charge, still being used in Nevada in 1977, concerned anal intercourse. DDA Michael Malloy became the prosecutor in the case.

  Ron Bath, a Washoe County public defender, was Phil’s attorney in this case. Right off the bat, Bath put forward a motion to have Phil examined by psychiatrists, as had been done in the federal case. This was so ordered by Judge Ernest Bowen, and as in his federal case, the psychiatrists were Dr. Charles Kuhn and Dr. Lynn Gerow. In a pretrial hearing, Bath stated to a judge just what the purpose of the psychiatrists for both the defense and prosecution would be: According to Mr. Malloy, he was also requesting with respect to the psychiatric examination, the issue of whether this individual knew the difference between right and wrong at the time of the offense.

  In the end, as far as a trial went, it wouldn’t matter whether Phil knew the difference between right and wrong, because there was no trial. Phil made a plea deal through his attorney and changed his plea to guilty. By doing so, Phil signed a statement that he waived his rights to the privilege of self-incrimination, trial by jury, and the right to confront his accuser. What he admitted to was That on the 22nd and 23rd of November, 1976, in the county of Washoe, State of Nevada, I did willfully and unlawfully have carnal knowledge of and with Katherine Gayle Callaway, a female human being against her will.

  Where Phil gained in the bargain was that the “infamous acts against nature” charge was dropped, and so was the possession of an illegal substance. For signing the agreement, Phil was to receive a period of imprisonment in Nevada from five years to life.

  In March 1977, Judge Roy Torvinen held a hearing about all of these matters. Judge Torvinen asked Phil, “Are you satisfied with the legal representation you received from the public defender’s office?”

  Unlike in his federal case, Phil said, “Definitely, I am.”

  Judge Torvinen then asked Phil, “Has there ever been any threats or coercion of any kind except for the fact of the prosecution in this case to induce you to plead guilty?”

  Phil replied, “No, sir.”

  There was an interesting exchange between attorneys and Judge Torvinen on April 11, 1977, concerning the case, with Phil also present. Phil’s attorney, Ron Bath, addressed the judge and said, “We’re not making light of the offense that Mr. Garrido has pled guilty to. However, I would like to point out to the court that this is one of the things that took place across state lines, and everybody is trying to get a
pound of his flesh. But he’s presently under a fifty-year sentence in the federal jurisdiction. I can relate Mr. Garrido’s feelings that he’s extremely remorseful over this thing. It’s something that happened with extreme use of drugs. He’s hoping to benefit from the time spent in prison to better his life, and I think he’s a candidate for the court’s consideration in this matter.”

  Malloy spoke up and said, “I don’t know which of us, Mr. Bath says, is getting the pound of flesh—the federal government or the state of Nevada, or both. Anyway, I don’t know that I’m getting a pound of flesh. He says he’s referring to California. I don’t mean to make light of it, either, but this is an extremely serious offense.

  “We could take first custody of him because he’s in state custody now and has been all along. In this case, we could send him directly to the Nevada State Prison and leave it up to the federal government to take him from there. As crowded as the state prison is, it doesn’t matter where he does his time, and the federal prisons aren’t as crowded. I don’t object to sending him to federal prison first and have the state of Nevada place the hold. I think the sentence should be for the crime committed, and maybe by the time he’s released, he won’t be so dangerous, because right now he’s a dangerous man.

  “Mr. Bath informed me that Mr. Garrido has to do a minimum of two-thirds of the federal sentence before paroled. And he got fifty years in the federal prison on the federal sentence.”

  Judge Torvinen asked Phil if he had anything to say. Phil replied, “Well, the only thing I do say is that I’m very fortunate that this happened to me because my life was in a crash course. Before I ever came into using marijuana, my life was clean. I had no arrest record, but association with marijuana led me to harder drugs, and I’ve used LSD for the last seven years. And if it wasn’t for the drug LSD, I wouldn’t be here right now. But this has given me a chance to find something more important than anything, and that is God. And I can straighten out my life.”