Head Shot

by Burl Barer

  Murdach requested clarification. “You think Dr. Tappin’s report and Dr. Muscatel’s report are garbage?”

  “I have not seen them,” replied Allison, “and I am not going to read them to prove my point. We do tests to tell if the patient is crazy or not, but there are not too many tests to see if they are competent or not. That is what you do by the seat of your britches—being human, paying attention to the patient and not packing my head full of paperwork garbage.”

  When asked if he actually participated in writing the report on St. Pierre’s competency, Dr. Allison replied with uncompromising candor. “I told Dr. Proctor to write it, and then I went home. The secretary called me the next day after she typed it and read it to me over the telephone. She signed it instead of me. I told her to sign it after I heard it. I live fifty miles away, and I wasn’t going to ride in just for one report.”

  “Dr. Allison’s testimony was interesting and different,” Judge Stone later commented. “We saw the attitude of a doctor who is absolutely totally independent; he doesn’t have to answer to anyone but himself. He could care less about the administration of Western State Hospital or the opinion of other doctors. I think he was the ultimate as far as independence is concerned because he wasn’t concerned about public relations or administration or internal relations within the hospital. He simply had his opinions.”

  Following Allison’s testimony, Murdach pleaded with Judge Stone to halt the competency hearing. “It’s apparent that there are witnesses which need to be present before this proceeding continues. I don’t have any witness here to rebut the testimony of Proctor and Allison. I was unaware until I cross-examined them that the examination of Paul St. Pierre was done inconsistent with normal procedure, and the fact that the hospital record is still back at the hospital, and the fact that Dr. Lloyd, who had previously maintained that Mr. St. Pierre was incompetent, especially when in solitary confinement, was lifted off the case for mysterious reasons these experts were not able to explain.

  “Quite frankly,” said Murdach, “Dr. Lloyd was taken off the case because he found him [St. Pierre] incompetent on the prior occasion and prescribed medications to him, and for some reason”—Murdach pointed toward Carl Hultman—“they had to bring in their witnesses to find him competent! I think the whole way this was handled, the quick nature of the evaluation, and the way it was done, coinciding with anticipating the start of Christopher St. Pierre’s trial, makes it all transparent.”

  Murdach’s implication was obvious: the hospital administration conspired and/or cooperated with the prosecution. The swift competency evaluation assured that Paul and Christopher St. Pierre would not have separate trials. When Murdach accused the prosecution of manipulating Paul St. Pierre’s hospital examination, he was pointing his finger above and beyond Assistant Deputy Prosecutor Carl Hultman. His target was Pierce County’s chief prosecutor Bill Griffies.

  Murdach’s belief that Bill Griffies masterminded his client’s revolving door evaluation in consort with Western State Hospital may have sounded as if the defense counsel was taking on the paranoid characteristics of his client. There were, however, understandable reasons for his accusations. First, the case’s history was already stained by several allegations of prosecutorial misconduct. Judge Sauriol had scolded Griffies on several occasions. Western State Hospital was fighting a protracted and costly lawsuit involving a settlement or judgment of staggering financial proportions. The attorney handling the suit against Western State Hospital was David Murdach. Based on these facts, coupled with the “dual defendants on trial” outcome, Murdach surmised that Paul St. Pierre’s medical evaluation and declaration of competency had been manipulated and/or controlled by the prosecution.

  “He’s a controlling manipulator,” Carl Hultman said of Paul St. Pierre. “He caused substantial delays and an awful lot of resources have been expended on his behalf to explore this competency issue thoroughly. I think the court can conclude without any question that Mr. St. Pierre is competent to go to trial.”

  Murdach took the opposite view. Only a few days earlier, the court had ruled that his client was incompetent. The court also ruled that his client should spend ninety days in Western State Hospital for observation and evaluation. “Now we have the benefit of an hour and forty minute examination by [the] doctors Proctor and Allison—one doctor who wrote the report, and the other doctor who had the report read to him over the phone, didn’t examine him, and had his secretary sign it. Also the reason Proctor and Allison performed the evaluation is of some question. Dr. Lloyd was familiar with the case, and Dr. Lloyd had previously examined Paul St. Pierre. Suddenly, Dr. Lloyd is replaced on the evaluation by Proctor and Allison. Instead of examining my client, Dr. Lloyd was getting chewed out in the superintendent’s office for something he supposedly did wrong in this case. We also have the newspaper coming out with that quote about St. Pierre being too dangerous to keep out there.”

  Murdach offered a quick, if sardonic, recap of current events: “We have a finding of incompetency, he goes out to Western State, he is there for three and a half days, and he’s seen for an hour and twenty minutes and found competent by one of the examining psychiatrists who does not read the reports of the other doctors because he thinks it’s a bunch of garbage. I don’t think that is a thorough examination.We are not dealing with just a question of evidence,” argued Murdach, “we also have to deal with the appearance of fairness to the defendants. That appearance has been shattered by the quick transfer of Dr. Lloyd off the case and bringing in Dr. Allison, a retired man, to examine Mr. St. Pierre. I don’t think there has been an appearance of fairness to Mr. St. Pierre in these proceedings as far as what has been done at Western State.”

  Judge Stone asked John Ladenburg if he had any comments or observations, and he most certainly did. “It’s the court’s responsibility to decide competency, and not that of the doctors, because competency is a legal question and not a medical one. I think Dr. Proctor misunderstood the legal definition, and the problem is that he thinks that if the defendant is somewhat cooperative with his counsel, he is therefore competent. That is not the law. Paul St. Pierre’s mental defect, the elements of his paranoia, is affecting his relationship with his counsel. I don’t see how the court, based on the evidence before it, can find this gentleman competent, since the evidence is clear that he is suffering from a paranoia affecting his ability to deal with his counsel, and that, in and of itself, makes him incompetent.”

  Judge Stone faced a surging sea of conflicting opinions, definitions, arguments, and diagnoses. “The court will proceed on the basis of the evidence and the testimony that I had before me this morning,” said Stone after serious reflection. “The court was impressed in all the hearings that those who had absolutely no responsibilities at Western State Hospital felt that would be an excellent place for Paul St. Pierre, while those who had responsibilities at Western State Hospital expressed different opinions in varying degrees.”

  As for Murdach’s suspicion that Western State rushed St. Pierre’s evaluation simply so the brothers could be tried together, Stone gave the concept no credence. “I’m not willing to conclude all that speed with which Western State acted had anything to do with the court dockets, or whether two defendants should be tried together or separately. I think that Western State Hospital, and particularly administration, perhaps not the doctors, were very much concerned with public relations, with news media, and less concerned with a particular result.

  “I’m not thrilled with some of the things Mr. Murdach has pointed out—the quickness of the review, and sending back, and people drawing their own conclusions—Murdach has his conclusions and the judge has his, and other people will have their own. I don’t think there is any question that the court is looking for some reassurance that it would be doing the right thing if it were to proceed to trial. The court has now found that reassurance that it was looking for, and I find it in two doctors. The court makes the finding of competency.”

>   Hultman immediately moved for “a court order that Paul St. Pierre be rejoined with Christopher St. Pierre and that their trial commence as soon as practicable. He told the judge, “The state would be prepared to begin jury selection tomorrow in King County.”

  “I need a few days before this case starts,” said Murdach, “and there are a couple of reasons for that. We learned this morning that Mr. Webb is not even going to be a witness in this case. It seems I should be elated about that. I am concerned because it was my understanding that Mr. Hultman was going to call witnesses concerning statements that my client had made about whether or not he participated in the homicide. For example, statements he made to Mr. Kissler about stabbing this individual and so forth. Mr. Webb has stated that my client did not stab Damon Wells. So I’ve got a real challenge to the prosecutor if he starts presenting evidence which he knows is not true, although my client maybe said the statement as boasting or whatever.”

  Judge Stone granted Murdach a five-day extension, and ruled that Paul and Christopher St. Pierre were once again joined. “The cases will be tried together,” he said, “and we will start jury selection on Monday, April eighth.”

  Jury selection is an arduous process, and the previous mistrial added additional pressure to all involved. All three attorneys exercised discretion and caution, avoiding another potential upheaval or delay. Jury selection was completed without incident. Opening testimony was scheduled for April 18, 1985.

  On April 17, Andrew Webb and the St. Pierre brothers were reunited in a Pierce County courtroom. Also present were defense attorneys Murdach and Ladenburg, prosecuting attorney Hultman, and Webb’s legal representative, Larry Nichols. In this pretrial hearing, Judge Stone would rule on whether or not Andrew Webb’s statement, given as part of his plea-bargain agreement, could be admitted as evidence against the St. Pierre brothers.

  Using out-of-court statements is seldom allowed, exceptionally controversial, and most often unconstitutional. It was Carl Hultman who made the motion, and he knew full well the legal dangers inherent in his request.

  “I basically pointed out in my memorandum,” said Hultman, “that there is a provision under state law that would support that the out-of-court statements made by Andrew Webb may be admissible if they can be shown to be accurate, whether or not there is sufficient basis to show their reliability.”

  If Andrew Webb was unable to testify, and the court knew that the state intended to use him as one of its main witnesses, then (according to Hultman) Webb’s out-of-court statements should be admissible.

  To buttress its argument, the state set forth what it considered an essential and imperative point of fact: Webb made a deal, and that deal involved his promise to testify against the St. Pierres. Webb, however, recently informed Hultman that he’d changed his mind. The state’s star witness now refused to testify.

  “He supplied, through his attorney, a handwritten first-person statement describing what he would be willing to testify to as part of a plea agreement,” recounted Hultman. “The state agreed that if Andrew Webb testified truthfully, the state would not seek to have the death penalty as punishment for him, but permit him to enter a plea of guilty to a crime of first-degree murder.”

  In addition to Webb’s plea-bargain statement of July 17, there was the earlier statement given to Detectives Yerbury and Price. Hultman encouraged Judge Stone to determine reliability by comparing Webb’s statements to those of Chris and Paul St. Pierre.

  “We are asking the court to rule today on the issue,” said Hultman, “and we intend to call Andrew Webb to the stand and determine if he’s going to testify.” Stone agreed, advising the prosecutor that the court would hear Webb’s testimony or nontestimony. Stone then asked Nichols if he wished to make any brief statements.

  “Mr. Webb is on the witness list,” stated Nichols, “and he related to me, as his attorney and as an officer of the court, that he does not wish to testify in these proceedings against the two individuals.”

  “The court respects Mr. Nichols’s statement,” responded Judge Stone, “but Mr. Nichols is an attorney and not the client. The court needs all the information it can get to make the ruling, and regardless of what the testimony or nontestimony is, there may be some questions the judge wants to ask Mr. Webb. Whether he answers them or not remains to be seen. I will direct Mr. Webb to come forward and be sworn and take the stand, and I note the exception to Mr. Nichols on the court’s ruling.”

  Andrew Webb, duly sworn, testified that he would not testify. Hultman, visibly irked, reminded his recalcitrant witness that they made a deal after Webb’s arrest for the aggravated first-degree murder of Damon Wells. “At a certain point, you asked your attorney to let me know that you were interested in pleading guilty if we would not pursue the death penalty, and that you were willing to testify.”

  “That was the agreement made,” confirmed Webb. “And yes, I was intending to plead guilty.” He further acknowledged the formal written statement to Yerbury and Price, but did not recall it being a sworn statement. Hultman asked if the statement was “the truth,” Nichols objected, and Webb refused to answer.

  “What is your response if you are called as a witness to testify truthfully about what happened concerning the death of Damon Wells?” inquired Hultman.

  “I will not testify,” replied Webb.

  “I think the court will direct Mr. Webb to testify,” said Judge Stone. “If he continues his refusal, then he is subject to contempt. We can all speculate how effective contempt would be.” The court then specifically directed Andrew Webb to testify.

  “I refuse to testify,” he said once more, making the phrase his witness-stand mantra. He chanted the noncommittal phrase in repetitive, predictable monotone, occasionally adding qualifiers, such as “at this time” or “about that also.” When Carl Hultman exhausted all relevant and unanswered questions, Andrew Webb explained why he wouldn’t testify against Paul and Christopher St. Pierre.

  “I intended to testify against these individuals out of vengeance,” said Webb, “and I also wanted to testify for selfish reasons—making myself look good in the public eye. And there was another reason. It has to do with the agreement. I was going to testify because I was threatened with death if I did not. In the agreement there were certain elements which were to be provided for me in exchange for my testimony.”

  According to Webb, one of those “certain elements” was protection while incarcerated. “As soon as I was turned over to the Department of Corrections, no provisions for protection were made whatsoever.” Webb further asserted that verbal death threats were made against him in prison on at least three occasions. Because he was entered into the prison population without any provisions for protection—inmates have a low regard for informants and snitches—he believed that the state “negated the agreement they made, and therefore released me from any responsibility of honoring that agreement.”

  Alan Achord, John Achord’s older brother, regarded Webb’s excuse as total nonsense. “From my own experience from being in prison,” he said several years later, “any time that you feel you need protective custody you can check in. You do not need to be assigned that. All you have to do is go to the sergeant, one of the guards, tell them that you’re in fear for your life, and they will put you in protective custody. So the deal where he says the state did not live up to their part is wrong. All you have to do is ask and you are put in protective custody.”

  When attempting to question his uncooperative star witness, Carl Hultman tried once more, and he was willing to ask it whether or not an answer was forthcoming. “You do understand one of the possible options that the lawyers will be arguing about is whether the statements you made will be presented to the jury. Are you aware that is part of what this hearing is all about? You are aware of that possibility, that your statement will go to the jury?”

  Webb simply said, “Yes.”

  The prosecution insisted Webb’s statements were sufficiently reliable to qualify a
s evidence. “The indicia of reliability are substantial in this case, and that is why we supplied the court with all the statements made, so the court would have the ability to read the statements made by all the participants in this crime, and determine for itself how accurate they are.”

  John Ladenburg, defense attorney for Christopher St. Pierre, spoke strongly against the motion. He pointed out that the prosecution was attempting to use an exception in the state’s conspiracy law that says that out-of-court statements of conspirators are admissible as evidence if they were made “in the furtherance of a conspiracy, and during a conspiracy.

  “The state has not alleged a conspiracy,” insisted Ladenburg, “and the statements made by Mr. Webb were not made in the course of a conspiracy, they were made after the arrest, and in the furtherance of a plea bargain.” He then quoted directly from the state of Washington’s legal advisory commission’s admonitions: “A statement admitting guilt and implicating another person made while in custody may be motivated by a desire to curry favor with the authorities.”

  In Ladenburg’s view, the prosecution attempting to admit a plea-bargaining statement as evidence was exactly what the advisory commission feared and condemned. “Going beyond that argument,” he continued, “there is a question of reliability of the statements.”

  Ladenburg assaulted Webb’s plea-bargain statement from all angles, including Webb’s recent admission that it was inaccurate and self-serving. “What I call one big inaccuracy,” declared Ladenburg, “is that now he remembers that Paul did not participate in the homicide, and that he himself threw the knife into the gentleman’s back. What happened here is that Mr. Webb is, in effect, admitting it is he who did the homicide, and these gentlemen had nothing to do with it. If that is not an indication of unreliability, I cannot imagine what would be. What we have here is contradictory evidence to the heart of the matter. I cannot imagine how the court could be any more convinced that his statements are inherently unreliable because they are repudiated by the gentleman who made them.”