Wednesday, June 15, 2011

Competency Trial Day Six - Summary

[Original Post by DS: 06/15/2011 12:35AM PST]
Some Notes from today's trial:

(I'm very sorry that I kept you guys waiting. Busy day today.)
Please also note that tomorrow may be the last day of witness testimony, and there is very possibly going to be NO coverage Wednesday, so there may be no update tomorrow night. I had early hopes that there was going to be heavier press coverage as there was on the second day of trial, but that doesn't seem to have panned out.

First to testify on day six was Dr. Jatinder Singh for the defense. Singh was one of the first two doctors appointed by the court to evaluate ayres before the competency trial was requested. On the day that the competency trial was to start, Singh mysteriously changed her mind, and thus another delay was achieved for ayres while we waited for a third doctor’s input. 

Reports are that Singh’s testimony was less then spectacular, seeming confused and hesitant.

Next up was a woman, a Ph.D. or other doctor and/or professor in the UC Hospital system, possibly a clinical neurologist. My coverage of her testimony starts about mid-stream, and I don’t have her name. I may be able to fill in details later. She looked very much the liberal professor type, long gray hair, frumpy looking, with black/grey/white plaid long dress, and thick framed glasses.  My understanding is that she was paid $250 per hour for her evaluation/testimony.

She had some kind of handout, apparently an outline to describe various categories of materials that she has in the past (perhaps for this trial, but not really clear) reviewed and categorized into areas applicable to determining competency with respect to standing trial. (And on, and on, and on, and ON.)

I don’t know that anybody was really following this. Mostly eyes were glazed over. I actually understand some of this stuff, and I was having trouble caring about what she was saying. She very much has the air of someone who IS intelligent, and who knows that she’s better than you are. On several occasions she says that the whole area of competence to assist in one’s own defense is a “new frontier.” She spent most of the time lecturing to the jury, but at the beginning of EVERY shift of the conversation, she would glance over to McDougall to see if he approved of the direction she was taking. On MANY occasions she would stop herself, and wait for the instant that it took for McDougall to redirect her. I’d have said that it was rehearsed, except for the fact that the question if it was OK to proceed was clearly present in her expression. 

Whenever the prosecutor objected to a line of questioning, she rolled her eyes as if to indicate that the prosecutor was being ridiculous. At one point the court recorder asked her to slow down, and she immediately shifted her rapid speech to a condescendingly slow gait, even slowly spelling out a three-letter acronym, one-miss-iss-ippi, two miss-iss-ippi, three miss-iss-sippi style. 

In spite of the long-winded, and seemingly irrelevant opening, her testimony could be quite damaging. 

When she finally got finished lecturing, she stated that ALL of the doctors who have interviewed ayres agree that ayres is suffering a progressive degenerative disease, and that he is NOT malingering, and that he is in fact very motivated to go to trial.  She arrives at this conclusion by reading through all of their reports, even though yesterday, some of those very doctors stated that they could not reach a conclusion either way about ayres’ malingering. (So either she is lying, or those who testified yesterday are lying. Or maybe there is just a misunderstanding.) 

She then spent a good deal of time talking about the types of reasoning that come into play in determining competency to assist in defense, but never really wraps it up with any kind of definitive statement. She also discussed evaluation methods, and that while they are “open ended” and subjective, there are enough scoring guidelines so that there can be consistent findings. 

At one point, she read a statement that ayres made when asked about his prior attorneys. He started with a rant about how they’re all deceiving him, and that they didn’t include him in decision making, and then rapidly digressed into fear of getting a spinal tap, and it got more confusing from there… 

She then read from many sections of the transcript of ayres’ testimony in the criminal trial.  Mostly from times that he became distracted in his answers, and/or asked for the question to be repeated. She states that this is indication that ayres was having severe incapacity even then.  

McDougall asked her if this kind of “forgetfulness” can be explained by being nervous or stressed about the circumstances. She states that this is the “LAST thing I would think of” as an explanation, based on his long career of public speaking. She mentioned his PBS “Sex Ed” program, and an “impromptu” speech that he gave when he was president of the American Academy of Child and Adolescent Psychiatry, for which he received a standing ovation, (etc, etc, etc… ) She spoke very glowingly of him.  She spent some time after court talking to him as he waited patiently on the street for Solveig to come pick him up.

The interesting (But probably lost on the jury) part of the testimony was that she was skipping over the parts of the testimony that most frequently seemed to get ayres off track. Prosecutor McKowan objected and tried to have her read the inclusive parts of the testimony, but the objection was overruled, with the understanding that McKowan would be able to specify problem areas later (I assume this will happen on cross.)

In short: much of the testimony that the witness chose to read from included discussions of boys genitals and/or discussions of “medical exams” that were given (She skipped over those parts as best she could.) But I maintain that ayres was VERY FREQUENTLY off track or off topic, and had to be reminded of the question EXACTLY when the topic of boys genitals came up. It is my (uneducated) opinion that ayres was distracted by his prurient interest in the topic, not out of nervousness or any kind of degenerative disease.
After the Defense finished their questioning, the court took a break.

Upon returning from break, it was announced that McKowan would not be able to cross examine the witness until later, as another of McDougall’s witnesses had a conflict for tomorrow, and would need to testify in the afternoon.

John Philipsborn, a criminal defense lawyer took the stand next.

McDougall questioned Philipsborn about what responsibility an attorney has with regard to a client’s competence to assist in his own defense. The lines of questioning also focused around Godinez v. Moran. Frequently discussion turned to questions about how to handle clients and their decisions to plead guilty (or not). This was brought up several times in the discussion. It was never clarified if there was a specific reason for this line of questioning, but it did appear to be very central.

McDougall clearly has respect for (or  at least feigns respect for…) Philipsborn. Often McDougall would ask an awkward question, and Philipsborn would rephrase the question properly for him and then answer it. 
McDougall asked if there were ever cases in which an attorney might raise the competence issues when a previous attorney did not (Answer: yes) 

McDougall also discussed jury instruction, and especially with regard to instruction about a witnesses ability to recall aspects of the situation, implying that an incompetent person would appear to be withholding information. The discussion was oddly vague at this point. I assume McDougall intends to tie all of this together in some kind of Perry Mason-like manner.

On cross examination, the prosecutor questioned Philipsborn about the nature of a defense, asking him if at a prior trial based on events of 15 years prior, would it be likely that there would be a strategy change in a re-trial with a new attorney. Philipsborn responded that it was not likely, but that it has happened.  Several questions were asked along this line, with all responses agreeing, but with caveat that “it has happened.”  

The prosecutor tried several ways to get the witness to agree that it’s possible that in a re-trial an attorney would not need as much input from the client, or that stresses on the client could be mitigated by various means, etc. This seemed to be of neutral success… The witness always seemed to indicate that it was possible, but that there would always be critical decisions (like guilty pleas) that an incompetent defendant should not be allowed to make.

The next line of questioning had to do with loss of memory as proof of incompetence. McKowan used examples that were relevant to the criminal trial, such as not remembering specific details of one event 15 years ago, that was one event of thousands of similar events. The prosecutor was successful with this line of questioning, many times with several examples, Philipsborn agreed without caveat that these kinds of examples do not indicate incompetence. However, after several repetitions of this line of questioning, the witness became wary, and less agreeable, eventually indicating that the memory loss may not indicate incompetence on its own, but that it could be one indication if the client was, indeed incompetent. 

McDougall then asked a few more questions. The questions revolved again around decisions to make a plea bargain, and then reversing that decision. Further, at this point the focus seemed to be on cues that a prior attorney missed that a COMPETENT ATTORNEY should have noticed. 

There was a sort of dark undertone during the questioning that was implying that Weinberg was not a competent attorney. 

Philipsborn's testimony on the witness stand was quite short, and ended somewhat ambiguously. Again, one would have to assume that McDougall will be tying up all of these loose ends that he's left dangling. We have some themes, but no real apparent direction.

At this point the judge stated that as it was getting late, everyone would go home early (about 4:30) and that tomorrow would start with the prosecutor’s cross examination of the earlier witness.

The judge further stated (unless this was misunderstood) that there would be TWO more witnesses, and then the trial would be finished. I can only assume that these two witnesses are the prosecutor’s witnesses. 

It seems that the trial will be coming to conclusion very soon. There have been quite a few witnesses stating that ayres is incompetent. According to Mike Aldax at The Examiner, Dr. Amanda Gregory was paid $20,000 to reach this assessment. I wonder if that's how much a soul costs these days?

I can only hope that these facts are not lost on the jury. 

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