Diminished Capacity

by Stephen Penner

  Robyn guessed the jury would be more willing to take Sanchez’s word for it regarding Pollard’s mental condition than they would be willing to take hers to go ahead and acquit him. No, really, it’ll be fine.

  Brunelle knew that was a good call on her part. If she didn’t raise the specifics of the prior bad acts, there was no way the judge would let him do it either. There were several evidence rules directly on point, and exactly for the reason that juries are more likely to convict a defendant of the current crime if they know he has prior crimes, especially prior similar crimes. Doubly so if those prior similar crimes were violent.

  The jurors, of course, didn’t know all of those evidence rules, and were almost certainly curious about the details of Pollard’s other two ‘behavioral outbursts.’ So Robyn did the smart thing. She moved on.

  “Dr. Sanchez,” she asked, “how does a mental disorder like I.E.D. interact with the idea of intent? Does a person have intent if they are experiencing an episode of I.E.D.?”

  Sanchez turned again to the jury and in his most professorial, most authoritative voice, answered, “In my opinion, no.”

  Robyn let that response sit there for a moment, then followed up, “Could you please explain?”

  “I would be happy to,” Sanchez told her. “The common characteristic of all disruptive, impulse-control, and conduct disorders is that the person is unable to control their impulses. Where you and I might be able to say, ‘I’d like that item from the store but I don’t really need it, or I don’t have enough money, so I guess I won’t buy it,’ the person suffering from kleptomania is essentially compelled to take the item. Compulsion is not the same as intent.”

  “What about intermittent explosive disorder?” Robyn encouraged.

  “With I.E.D., it’s not as simple as resisting an impulse to steal. With I.E.D., it’s a question of not reacting explosively to a stimulus that wouldn’t cause most people to react like that. The person with kleptomania has no choice but to steal things. Similarly, the person with I.E.D. has no choice but to react explosively.

  “In fact, the entire point of disruptive, impulse-control, and conduct disorders is that they affect decision making,” Sanchez concluded. “They cause people to do things and to make decisions they wouldn’t do or make absent the disorder. So, in that way, it’s really the disorder that’s making the decisions, not the person.”

  Robyn nodded thoughtfully. Brunelle wondered if that was a stage direction in her script.

  “I believe you testified that you have reviewed the police reports in this case,” she said. “Is that correct?”

  “Yes,” Sanchez confirmed.

  “Including the autopsy report?”

  Sanchez nodded solemnly to the jurors. “Yes.”

  “Do you have an opinion,” Robyn asked, “as to whether the defendant in this case, Justin Pollard, intended to kill the victim in this case, Leonard Holloway?”

  “Yes, I do,” Sanchez answered.

  “What is that opinion based on?” Robyn asked again.

  “Again, my opinion is based on my examination of Mr. Pollard, my review of the relevant reports, and my own expertise in the area of disruptive, impulse-control, and conduct disorders.”

  “What is your opinion, Dr. Sanchez,” Robyn finally asked the million dollar question, “as to whether Mr. Pollard was able to form the intent to kill Mr. Holloway?”

  “It is my expert opinion,” again Sanchez delivered his response directly to the jury, “that Justin Pollard lacked the ability to form the intent to kill Leonard Holloway.”

  Brunelle wasn’t surprised by the statement—it was the entire reason Robyn had called him as a witness. But he still didn’t like hearing it out loud. It only took one of the jurors to buy it and they couldn’t get a conviction.

  “Mr. Pollard suffers from intermittent explosive disorder,” Sanchez went on. “At the time of the incident, he was experiencing a significant episode of the disorder which caused him to lose control of his ability to make decisions. It was the disorder making the decisions, not him. Therefore, Mr. Pollard did not have the intent necessary for the crime of murder.”

  “Thank you very much, Dr. Sanchez.” Robyn gave him another thoughtful nod. Exit, Stage Left. “No further questions.”

  Carlisle stood up as Robyn sat down. She buttoned her coat and rubbed her hands together. She didn’t have a script.

  “No intent, huh?” she began.

  “Not in the classic sense, no,” Sanchez answered. He was calm enough. He’d testified before. He wasn’t about to be rattled by yet another random prosecutor.

  “But Mr. Holloway’s death wasn’t accidental either, was it?” Carlisle put to him.

  “I suppose that depends on your definition of ‘accidental’,” Sanchez answered.

  “Let’s use the standard definition,” Carlisle suggested. “He didn’t trip and accidentally step on Mr. Holloway’s head, thereby crushing his skull, right?”

  “Well, I can’t say he never tripped,” Sanchez pushed back. He was calm, but he was also cocky. But Brunelle could see the smallest of smiles appear in the corner of Carlisle’s mouth. She smelled blood.

  “So, maybe he just tripped and accidentally stepped on the victim’s head?” she asked.

  “It’s not impossible,” Sanchez replied. “Especially if he were experiencing an episode that caused him to lose focus on the world around him.”

  “If he was experiencing an episode?” Carlisle questioned.

  “Because he was experiencing an episode,” Sanchez corrected himself. “I should have been more careful in choosing my words. I forgot,” he grinned to the jurors, “you’re a lawyer.”

  The quip garnered a couple of small chuckles. About as much as Sanchez could have hoped for, given the otherwise serious nature of the proceedings.

  “Did he maybe trip and catch his balance by placing his fist into the victim’s face?” she asked.

  “Certainly he could have lost his balance at some point,” Sanchez pushed back. “He may well have grabbed onto Mr. Holloway at some point. There’s no way to know.”

  “So, the four or five or six times he punched Mr. Holloway in the face,” Carlisle asked, “those all could have been just Mr. Pollard continually losing his balance?”

  “Not all six times,” Sanchez conceded.

  “What about the ten or eleven or twelve times he stomped on Mr. Holloway’s head?” Carlisle pressed on. “Were those also just Mr. Pollard trying to regain his balance? On Mr. Holloway’s head?”

  “I think you’re missing my point,” Sanchez replied. “Whether he tripped or not, his actions that night were not volitional.”

  And the blood started to gush. Sanchez just didn’t know it yet.

  “Volitional?” Carlisle repeated back to him. “That’s a new word in your testimony. What does ‘volitional’ mean?”

  “It’s basically the same thing as intentional,” Sanchez returned. He wasn’t talking to the jury any more. He was focused on her. That meant Carlisle had him rattled.

  “Basically the same,” she repeated. “But not completely.”

  Sanchez frowned. “Is that a question?”

  Oh yeah, Brunelle thought. He’s bleeding. The charming professor was turning into a thin-skinned know-it-all.

  “No,” Carlisle admitted. “But this is. When Mr. Pollard balled up his fist, pulled his arm back, and punched Mr. Holloway in the nose, you’re saying none of that was volitional, because the disorder made him do it. Do I have that right?”

  “Yes,” Sanchez answered. “The disorder was in control at that moment.”

  “Because he didn’t want to do it, right?” Carlisle went on. “Volitional means doing something you want to do, isn’t that right?”

  Sanchez took a moment. “That is what volitional means,” he had to agree.

  “Okay, but,” Carlisle raised a palm to him, “and stay with me here. When he balled up his fist, that required a signal from his brain to do that, right
? And when he pulled his arm back, that required a signal from his brain to do that, right? Those didn’t just happen because a strong breeze blew by or it was a Tuesday, right?”

  “I think you’re conflating intent and volition,” Sanchez non-answered.

  “Well, one of us is,” Carlisle responded. “He had to intend to ball up his fist, didn’t he? That doesn’t happen without a thought, correct? It’s not like blinking or coughing or sneezing.”

  Sanchez sighed deeply. “Neuropsychology is a very complex field.”

  “I’m sure it is,” Carlisle replied. “But why don’t you go ahead and do your job as an expert witness and answer my question? A person had to think about balling up his fist in order for that to happen, right?”

  Sanchez stared at Carlisle for several seconds, but then admitted, “Yes, there has to be a thought to make that happen.”

  “And when a person pulls their arm back and throws a punch,” Carlisle pressed her advantage, “that requires a thought too, doesn’t it?”

  “Sure,” Sanchez offered with a frown.

  “And lifting up your foot, with its heavy boot, and smashing it down on somebody’s head, that’s not an accident, right? That requires the person to think about doing it, doesn’t it?”

  “It’s still not intentional,” Sanchez insisted.

  “It’s not?” Carlisle took a surprised step back. “Never?”

  “Well, sometimes it is, of course,” Sanchez acknowledged. “But it wasn’t that night for Mr. Pollard.”

  “Because his leg spontaneously convulsed up and then down again?” Carlisle asked. “Like some sort of leg sneeze?”

  Sanchez set his jaw. “No. Because his intermittent explosive disorder caused him to have the thought to raise his leg and lower it again.”

  “You mean stomp?” Carlisle suggested.

  “Fine, stomp,” Sanchez acquiesced. “Whatever you want to call it, the I.E.D. caused the thought that caused the action.”

  Carlisle paused her questioning. She nodded. She raised a finger to her lips and nodded at the good doctor. She turned and took a few paces away, still nodding thoughtfully. When she reached the front of the jury box, she turned around again.

  “So, you admit there was a thought that caused the action?” she challenged him. “Mr. Pollard did have the thought to raise his leg and stomp on Mr. Holloway’s head?”

  “The thought existed, of course,” Sanchez conceded. “But that doesn’t make it intentional.”

  “You mean it doesn’t make it volitional, right?” Carlisle asserted. “His leg raised and lowered because of a thought to do those things. It wasn’t a convulsion or an accident. But you’re saying he wouldn’t have wanted to do those things absent the conduct disorder.”

  “I’m not sure I would say it that way,” Sanchez answered.

  “Well, I’m saying it that way,” Carlisle said. “Am I wrong?”

  “I’m not sure you’re right,” Sanchez responded.

  “But you won’t say I’m wrong?”

  “Fine. You’re wrong.”

  “Really?” Carlisle questioned.

  Sanchez sighed again. “I don’t know.”

  Carlisle smiled. “I know you don’t.” She glanced up to the judge. “No further questions, Your Honor.”

  Robyn didn’t wait for Carlisle to vacate the well before stepping around the defense table and starting her redirect examination.

  “You really have a Ph.D. in psychology, don’t you, Doctor?”

  “Uh, yes,” Sanchez confirmed.

  “And you really specialize in disruptive, impulse-control, and conduct disorders?”

  “Yes.”

  “And I.E.D.—intermittent explosive disorder—that’s a real conduct disorder, correct?”

  “Correct.”

  Robyn pointed back at her client. “Mr. Pollard really suffers from I.E.D., doesn’t he?”

  “He does, yes.” Sanchez was getting the rhythm.

  “And when he experiences an episode, he really can’t control himself, can he?”

  “No, he cannot.”

  “And so, Dr. Sanchez,” Robyn summed up, “he really didn’t intend to kill the victim in this case, did he?”

  Sanchez remembered to turn to the jury again to deliver that answer. “In my opinion, no, he did not.”

  “No further questions!” Robyn announced triumphantly.

  Carlisle waited for her to sit down and for Judge Whitaker to invite, “Any recross-examination?”

  Carlisle nodded, but didn’t answer audibly. Instead she stepped over to the top of the bar, where the clerk kept the exhibits handy for the attorneys. She sorted through them quickly, then placed Exhibit Twenty-Eight on the projector and pressed the ‘on’ button. Leonard Holloway’s bloody, twisted face filled up the wall of the courtroom. “Really?”

  Sanchez didn’t respond immediately, unsure whether he was really supposed to answer that type of question. Carlisle cleared it up for him.

  “No further questions.” She turned off the projector again, and Mr. Holloway’s death mask faded from the wall.

  There was no re-re-cross for the one question that the witness didn’t even answer, so Dr. Sanchez was done. Judge Whitaker excused him, then asked Robyn the question they had all been waiting for.

  “Does the defense have any further witnesses?”

  Brunelle hung on the answer. He’d prepared a cross-examination of Pollard, of course, even though he didn’t think Robyn would put him on. Crossing the defendant in a murder trial was too important to just wing it. For a split second he let himself believe Robyn might actually put Pollard on the stand, leaving him open for Brunelle after she announced ‘No further questions.’

  But instead, she announced, “No further witnesses, Your Honor. The defense rests.”

  Brunelle was disappointed, but he wasn’t alone. That announcement of no more witnesses—that the defendant would not take the stand and tell his side of the story—sent a wave of disappointment throughout the courtroom, and nowhere more intensely than in the jury box. The jurors, like everyone else, knew what it meant if someone refused to take the stand and say he was innocent. But the jurors had also been instructed by the judge, more than once, that a defendant was presumed innocent, that he had the right to remain silent, and that exercising that right could not be used in any way to infer guilt or otherwise prejudice the defendant.

  They wanted to hear him say he didn’t do it. But he didn’t say it. And the judge told them it didn’t matter.

  What mattered was what the witnesses who did testify said. Witnesses like Kevin Langford and Jim Goodman and Dr. Nicholas Sanchez. And one last witness for the State.

  “Does the State wish to call any rebuttal witnesses?” Judge Whitaker asked. But it was a formality. She knew the answer.

  “Yes, Your Honor,” Brunelle responded. “The State calls Dr. Alastair Mount.”

  CHAPTER 38

  The name ‘Alastair Mount’ couldn’t help but conjure up images of an old British man, in a tweed jacket, with perhaps a bow tie, and definitely glasses. The sort of person who would be a supporting character on that British mystery show they used to run on the local PBS station.

  But no, Alastair Mount was young and American, dressed in a dark sport coat and pants, with an open collar, no tie at all. He was tall, with wispy blond hair, blue eyes, and a nice smile. If he were on television, it would be in a network dramedy, as the good-looking professional colleague/love interest to the plucky female lead.

  Mount stood up from his spot in the front row of the gallery and approached Judge Whitaker to be sworn in. He was the only witness to have appeared from within the courtroom, and a small murmur travelled through the jury box at the novelty.

  Once Mount was seated in the witness chair, Brunelle began his examination. That had been the deal. Carlisle got Sanchez; he got Mount.

  “Please state your name for the record,” Brunelle began. It was the same first question he’d asked every sin
gle witness for twenty years. In addition to being an important place to start, it allowed him to get the ball rolling no matter how nervous he might be. And after twenty years of trying cases, yes, he still got nervous.

  “Alastair Douglas Mount,” he turned and gave his name directly to the jury. Two could play at that game.

  “Thank you for coming today, Mr. Mount,” Brunelle said. “Or should it be Dr. Mount? Do you hold a doctorate degree in any subjects?”

  “Mr. Mount is fine,” Mount assured him. “I do have a Ph.D. in psychology, but I don’t feel the need to add ‘doctor’ to my name.”

  “Do you practice as a psychologist?” Brunelle asked. He had a script too, although it was really just bullet points, and he’d written it himself on a legal pad.

  Mount laughed lightly at the question. A boyish laugh. Endearing, Brunelle hoped, not disrespectful. “Uh, no.”

  “Why not?” Brunelle followed up. “Are you not putting that Ph.D. to use?”

  “On the contrary,” Mount replied, “I believe I put my extensive education regarding psychology to the best possible use. I don’t practice as a psychologist because psychology is an unprovable, unsupportable discipline. It may have some limited uses, but for the most part, it’s just human beings pretending to understand things we can’t possibly understand, categorizing things that can’t really be categorized, and labeling things that defy labels. All from inside the very systems we claim we can be independent enough from to make those sorts of explanations.”

  And they were off to the races.

  But Brunelle didn’t want to lose the jury right out of the gate. They were unlikely to truly believe psychology was useless, even if it were. When Galileo told everyone the earth revolved around the sun and not the other way around, he was right. But he still recanted when they threatened him with death for heresy. It wouldn’t matter if Mount was right if the jury thought it was too much. He couldn’t let it be about all of psychology. He needed it to be about something smaller. It needed to be about intermittent explosive disorder.