by Don Bullis
―And remember that we're not blazing new trails in jurisprudence. We're here, ultimately with the help of a jury, to determine the guilt, or innocence, of one...." The judge paused and shuffled through some papers on the bench, ―Billy Ray White, alias and so forth, according to the law.
―You should also know that on questions of admissibility of evidence, I generally prefer to let the jury see it and decide for themselves. Follow the rules, gentlemen, particularly the rules of evidence, and you won't have any trouble with me. Let's get started. Did someone remember to bring the file down here from Albuquerque? I didn't bring one from Gallup. I had other matters this morning.‖
―I didn't either,‖ Wilcoxson said. ―I thought I had it, but in looking through my briefcase, I apparently do not.‖
―I guess I‘ll have to move for dismissal, your honor,‖ Pratt said.
Judge Ziram showed slight amusement. ―I don't think a failure in my memory, and that of Mr. Wilcoxson, is a sufficient ground, Mr. Pratt. Have you got copies of what's to be done here today?‖
―Yes sir,‖ Pratt said.
―Good,‖ Judge Ziram said. ―How about shooting copies up here of everything filed.‖
Pratt handed one sheaf of papers to the judge and another to the bailiff. ―If you could get us two copies of all this I‘d appreciate it.‖
―Now, Mr. Wilcoxson,‖ Ziram said, ―from what I see here, you want to suppress any examinations Mr. Pratt has had done, or might have done on his client. It that the crux of it?‖
―I don't care about having him examined,‖ Wilcoxson said, ―if I know that there's not going to be any testimony by the psychiatrist. I don't want to be at trial and have their psychiatrist come in and testify to something and not be prepared to rebut it.‖
―Mr. Pratt,‖ the judge said, leaning back in his leather-covered chair. ―What say you?‖
―I'll go ahead and state for the record, your honor, that I do not intend to raise the question of Billy Ray White's competency on the date of the alleged crime, nor his ability to participate in his own defense, but I might call the psychiatrist to testify on other matters.‖ ―Then I want to have him examined so I can rebut," Wilcoxson interjected.
―Your honor,‖ Pratt continued, ―I had a psychiatrist do a narcosis test which is like truth serum. Certain things were said which I feel might get to the crux of this matter without relating to my client's mental capacity. There is the possibility I would put on testimony of that nature.‖
―My position, your honor,‖ Wilcoxson said, ―is that narcosis is like a lie detector and it might be inadmissible.‖
―That's Mr. Pratt's problem, and I'm not going to rule on it now. When a psychiatrist gets up and offers such testimony, you can make your objection and then I'll rule.‖
―Am I allowed to have the defendant examined?‖
Judge Ziram leaned forward and rested his elbows on the desk. ―Since there‘s no defense of exculpatory insanity, there's no basis for evaluation on the part of the prosecution.‖
―While we're on the subject,‖ Pratt said, ―I like to move that I be furnished with the funds to make a lie detector test independent of the DA's office.‖
―On your own client? Even after the narcosis test?‖
―Yes sir.‖
―That's an interesting quirk. What do they cost these days? Anybody know off-hand?‖
―Twenty-five dollars,‖ Wilcoxson said.
―Go ahead and do it,‖ the judge ordered.
―Thank you, your honor.‖
―You're not ruling on the admissibility of this, are you?‖ Wilcoxson demanded.
―No, counselor,‖ Ziram said evenly. ―It's just an aid in the evaluation of his own client.‖
―So there's no misunderstanding,‖ Wilcoxson said, ―Mr. Pratt has assured me and the court that their psychiatrist will not testify....‖
―The only thing he assured you of,‖ the judge said, ―is that he won't raise a defense of insanity or contend lack of present competency.‖
―But what about the defendant's state of mind at some particular time?‖ Wilcoxson seemed agitated.
―We‘ll wait and see,‖ the Judge said.
―But if a psychiatrist says the defendant is a person who couldn't
kill another person, or couldn't commit armed robbery because of his psychological makeup, then I‘ll be without anything to rebut with.‖
―The rules of evidence will take care of that, Mr. Wilcoxson. You're conjuring up ghosts for yourself. That takes care of your motion to suppress. It's denied. What‘s next?‖
―Ok,‖ Wilcoxson said as he turned abruptly from the bench and walked back to the prosecutor‘s table. ―The state makes a motion requiring the defendant to furnish the state with copies of reports by their psychiatrist and their private investigator?‖
―Do they have.... Mr. Pratt, do you have a private investigator?‖
―It's my understanding,‖ Wilcoxson interjected, ―that he plans to ask you to approve one to investigate ... I don't know what.‖
―Mr. Pratt can speak for himself, counselor. Mr. Pratt?‖
―Your honor, it's a fact that I have engaged the services of an assistant to do some leg work for me in this case. I suppose you could call him a private investigator. I ask the court to approve five dollars an hour for his services. It's not much when you consider the hundreds of man-hours spent by the State Police and other law enforcement people all working to prove my client guilty.‖
―Mr. Wilcoxson?‖
―I don't see the need. Mr. Pratt has access to all police reports and I don't think some amateur Mike Hammer will do any better work than professional law officers. Mr. Pratt is well aware that my office is even handed in these matters and he knows that a previous suspect in this very case was exonerated through my efforts. Besides, we've given him every report he's asked for.‖
―Mr. Wilcoxson‘s efforts left an innocent man sitting in jail for nearly three weeks, your honor. But beyond that experience, I am not at all sure I have a complete set of police reports relating to this case. I have no way of knowing.... ‖
―I get the point, Mr. Pratt. I'll grant your motion. Five dollars an hour. How's a one hundred hour cap?‖
―If that's the best I can get, your honor.‖
―It is. Now let's get back to your making reports available to the prosecution. What's your posture on Mr. Wilcoxson's request?‖
―I have no objection, your honor. I've got nothing to hide here.‖ ―Good. What else have you got hanging here, gentlemen?‖ Ziram leaned back in his chair and laced his fingers together across his stomach. ―I told you both—made it a matter of record—that today is the day. If you've got motions, they‘ll be washed out today or they won‘t be washed out at all.‖
―Those are all the motions the state has, your honor.‖
―How about you, Mr. Pratt?‖
―Thank you, your honor. We're trying to locate some alibi witnesses and I'd like funds provided to bring them to New Mexico for the trial, and also for a day or two in advance so I'll have a chance to confer with them before the trial starts.‖
―This is a dodge, your honor,‖ Wilcoxson said, ―I don't believe there are any alibi witnesses to be found.‖
―Mr. Pratt? You know of definite witnesses?‖
―Absolutely, your honor. Mr. Wilcoxson is aware of them, too. We‘re trying to locate them since the DA‘s office doesn‘t seem to have an interest in this aspect of the case.‖
―The state has an obligation to afford the defendant the same opportunity it does the prosecution, which is to have any witnesses brought here if they are obtainable.‖
―We think they will be, your honor, and these witnesses are definitely necessary to provide an adequate defense.‖
―You‗d best get into high gear, Mr. Pratt. We're running short on time. The trial begins....‖ Judge Ziram paused, leaned forward and leafed through a notebook on the desk. ―Three weeks from next Monday. And that's
when it will start. No postponements.‖
―Understood, your honor.‖
―You have to notify the State,‖ Wilcoxson said, more to Pratt then to the court. ―I need to visit with these people so I can rebut....‖
―That's the problem,‖ Judge Ziram said. ―The mechanics of it are rather arduous. Some courts are faster than others, but some are mighty slow. Are they willing witnesses, Mr. Pratt?‖
―I believe they will be. Yes.‖
―Then you don't have any sweat. Just get them on an airplane.‖
―But they still have to notify me,‖ Wilcoxson whined.
―Yes they will. Mr. Pratt, you make sure your witnesses are back here no later than Friday before the trial begins.‖
―Yes sir.‖
―Fine. Now then, does your written motion here require testimony in support of it?‖
―Is that my motion to suppress Mrs. Rice?‖
―Yes,‖ the judge said.
―Three witnesses, your honor, and I'd like to invoke the rule of exclusion.‖
Judge Ziram was surprised. ―In a motions hearing?‖
―Yes sir.‖
―I don't see any reason for it,‖ Wilcoxson snapped.
―I don't either,‖ Ziram said. ―Let's go ahead.‖
―Could I, for the record, make a tender of my reasons for wanting to invoke the rule?‖
―Go ahead.‖
―Testimony will be presented here today arising from a series of consultations between a psychiatrist, a hypnotist, and Flossie Rice. I‘ll argue that a high degree of suggestibility on the part of the witness was made possible by the hypnotist and the psychiatrist. I feel that to properly present evidence to show this, the witnesses should be excluded when they are not testifying so they cannot hear each other testify as to what specifically took place during their respective sessions with Mrs. Rice.‖
―Will all the testimony be that of experts?‖
―Two experts, your honor, and Mrs. Rice. We‘ll attempt to show she was hypnotized, and for that reason we would specifically want her excluded.‖
―I'll admit she was hypnotized, your honor.‖
―That isn't what he's shooting for, Mr. Wilcoxson. I think, in view of what you've said, Mr. Pratt, there is wisdom in granting your request.‖ Judge Ziram addressed two men seated in the front row, both of whom were dressed in dark conservative suits and white shirts.
―Subpoenaed witnesses, when not testifying, will remain outside the courtroom, outside earshot of testimony being given, and they will not discuss their respective testimony, either before or after it is given, with anyone other than the attorneys in the case. Call your first witness, Mr. Pratt.‖
―My first witness will be Mrs. Flossie Rice.‖
Flossie made her way to the witness box as Sol Gold and Dr. Jon McArthur left the courtroom. Wilcoxson sat down at a long table—to the left as he faced the bench—reserved for prosecutors. Max Atkins alone occupied a seat in the courtroom spectator area and he sat in the front row of benches which very much resembled church pews. He leaned back, his feet extended into the aisle in front of him, his arms folded across his chest. The look on his face dared anyone to ask anything of Flossie he didn't like. She raised her right hand and Judge Ziram administered the oath.
―Mrs. Rice, without going into the details, would you state whether or not you have ever identified anyone as the killer of your late husband, Bud Rice, and of Miss Blanche Brown?‖
Wilcoxson got to his feet. ―Your honor, I'm going to have to object on the grounds that this is an improper question at this type of hearing. What Mr. Pratt is doing, in effect, is trying to take another deposition from the witness.‖
―How far are you going to go, Mr. Pratt?‖
―I just want to know if she identified somebody to lay a foundation for the hypnosis.‖
―I'll let you go ahead on that point. Mrs. Rice will answer.‖
―Yes.‖
―Who have you identified?‖
―They's been two.‖
―Who were they?‖
―Mr. Bunting. But it wasn't a definite identification. But Mr. White was definite.‖
―At the time you identified Mr. Bunting, had you ever been under hypnosis or psychiatric treatment?‖
―No, sir.‖
―At the time you identified Mr. White, had you been under hypnosis or psychiatric treatment?‖
―At the time when I identified his picture, the first time I seen it, I had not been under hypnosis. No.‖
―What was the date when you identified his picture?‖
―I would say it was the 18th.‖
―The 18th of what?‖
―November. 1967. My husband was killed on the 17th.‖ ―You identified Mr. White's picture on the 18th? The morning following the, ah, murders?‖
―Yes.‖
―Was Mr. Bunting in custody at the time?‖
―No, no sir.‖
―This was before Mr. Bunting was picked up later the same day? Late that night. And the same night you identified Mr. Bunting as the killer. Is that correct?‖
―I said he resembled him. Yes.‖
―Let's be clear here. Who resembled whom?‖
―Mr. Bunting resembled the man who shot my husband. So did the picture of Mr. White.‖
Wilcoxson was back on his feet. ―I object to Mr. Pratt examining the witness on the merits of the case, your honor.‖
―I'll allow it, Mr. Wilcoxson.‖
Pratt continued. ―Your honor, I'd like the record to reflect that Mrs. Rice just stated that her husband was killed on November 17, 1967. In fact, he was killed on November 18 and Mr. Bunting was arrested on the 19th. Am I correct then, Mrs. Rice, when I suggest that this alleged picture of my client that you saw, that you saw it on Sunday, the 19th of November, in 1967?‖
―Yes. It must have been. I know you're right, sir. Bud died on the 18th. Evening of the 18th.‖
―Thank you. I just wanted to make sure we're all swimming in the same creek. Now then, Mrs. Rice, when were you first placed under hypnosis, and by whom?‖
―I don't remember the date.‖
―To the best of your recollection.‖
―It was maybe a month later or so.‖
―Would you argue with me if I said it was more than two months after the events of November 18?‖
Wilcoxson stood. ―Your honor, counsel is not here to debate the witness.‖
―You know better Mr. Pratt. The witness said a month or so. I take that to mean more than a month. Let's move along.‖
―Yes, your honor. What was the occasion of the hypnosis?‖
―Mr. Spurlock came to the trading post and he said I should go to see this psychiatrist.‖
―It wasn't your idea?‖
―No, sir. I thought it was Mr. Spurlock‘s idea.‖
―Who is Mr. Spurlock?‖
―An officer. With the State Police.‖
―Did you discuss going to the hypnotist or psychiatrist with anyone other than with Mr. Spurlock? Mr. Wilcoxson, for instance?‖
―No, sir. Well, Charlie Scarberry. But that was later on.‖
―You're referring to the deputy chief of the State Police?‖
―Yes. He said hypnosis was snake oil, or something like that, but I was willing if it would help out.‖
―He was opposed to you being hypnotized?‖
―Yes. He was.‖
―Ok. Now, who was present, to your recollection, on that first occasion?‖
―Officer Spurlock took me and I met Dr. McArthur at his office up there in Albuquerque.‖
―How long were you there? Do you remember?‖
―Probably about forty-five minutes. An hour.‖
―Can you tell the court what Dr. McArthur did at that time?‖
―He asked me about my childhood. And my first husband. Then I think he asked me about what had happened. If I could tell him what had happened.‖
―Did you tell him?‖
―I think I did.‖
―Were you placed under hypnosis on that date?‖
―No, sir.‖
―Did Dr. McArthur suggest that you might go under hypnosis at some later date?‖
―Yes sir. He did. We talked about it on that date.‖
―You didn't consider this a client-patient relationship with Dr. McArthur, did you?‖
―I was just doing whatever I could.‖
―To help with your second husband's murder case?‖
―Yes.‖
―Good. Did Dr. McArthur show you any pictures?‖
―No, sir.‖
―No diagrams, reconstructions, drawings or anything like that?‖ Wilcoxson stood. ―Asked and answered, your honor.‖ ―Move along Mr. Pratt.‖
Pratt led Flossie through a session by session recounting of her several examinations by Dr. McArthur and a hypnotist named Sol Gold. She contributed very little. Each of the sessions had been very much like the first. Flossie held no conviction that hypnosis had ever taken place. Toward the end of his inquiry, Pratt asked her again about pictures she‘d been shown.
―Now, Mrs. Rice. At any of these sessions, were you shown pictures and asked to identify them?‖
―I don't remember any pictures 'til I think it was the last visit.‖
―Were they photographs?‖
―Yes.‖
―What about drawings? Did they show you any?‖
―No, but that officer that was out at my store the day after.... The one with a funny name. Like a beer of some kind.‖
―Budwister?‖
―Yes. Budwister. He came to Dr. Gold‘s office.‖
―And did he ask you to describe the man who did the shooting?‖
―Yes. And then he showed me the picture he'd drawed.‖
―And was this while you were under the influence of hypnosis?‖
―Well, I don't know whether I was or not. I don't remember.‖
―Was this before or after you were shown the photographs?‖
―I don't remember.‖
―Do you remember discussing the pictures with anyone?‖
