550
1 UNITED STATES DISTRICT COURT
2 FOR THE WESTERN DISTRICT OF NORTH CAROLINA
3 CHARLOTTE DIVISION
4
5
UNITED STATES OF AMERICA )
6 )
)
7 vs. ) File No. 3:97CR23-P
) SENTENCING PHASE
8 AQUILIA MARCIVICCI BARNETTE, )
)
9 Defendant. )
)
10
11
12 Transcript of proceedings before the Honorable
13 ROBERT D. POTTER, Senior United States District Court Judge,
14 before Scott A. Huseby, Official Court Reporter and Notary
15 Public, on the 3rd day of February, 1998.
16 APPEARANCES:
17 For the United States:
18 ROBERT J. CONRAD, JR.
THOMAS G. WALKER
19 Assistant United States Attorneys
227 West Trade Street, Suite 1700
20 Charlotte, North Carolina 28204
21 On Behalf of the Defendant:
22 GEORGE V. LAUGHRUN, Esq.
Suite 602
23 301 South McDowell Street
Charlotte, North Carolina 28204
24
25
551
1 APPEARANCES: (Continued)
2 PAUL J. WILLIAMS, Esq.
Suite 801
3 301 South McDowell Street
Charlotte, North Carolina 28204
4
5 ---
6
7 THE COURT: I understand the defendant had something
8 they want to put on the record.
9 MR. LAUGHRUN: Judge, yesterday afternoon, I know we
10 talked about the expert situation, there was an objection made
11 by Mr. Conrad to Sheila Cooper's testimony about her -- had seen
12 a therapist or what effect that your mom's death had on you. We
13 had a bench conference, and Mr. Williams, correct me if I'm
14 wrong, you sustained that objection.
15 I think, Judge, for the record, we would like to put a
16 proffer on what she would have said.
17 THE COURT: All right, sir, let's do that next recess.
18 I'm not going to hold the jury up while we're doing that.
19 MR. LAUGHRUN: Okay.
20 THE COURT: While I'm thinking about it, the
21 government's side --
22 MR. WILLIAMS: Your Honor, I'm sorry to interrupt Your
23 Honor, but my client wanted to talk to us before we started
24 today. We just were informed of that.
25 THE COURT: Can't you do that earlier, Mr. Williams?
552
1 You know what time this jury is going to be here. They come a
2 long ways to be here on time.
3 MR. WILLIAMS: I understand.
4 THE COURT: Now, how long are you going to talk to him?
5 MR. WILLIAMS: He just asked me, I didn't --
6 THE COURT: Well, go ahead and let's get it over with.
7 (Attorney/client discussion.)
8 THE COURT: Pages 7 and 8 of your instructions, the
9 government's instructions, Page 8 is missing, Page 7 is sort of
10 halfway.
11 MR. WALKER: Okay, Your Honor, I will remedy that
12 situation.
13 THE COURT: I just wanted to make sure y'all had that
14 for us.
15 MR. WILLIAMS: Thank you, Your Honor, we are ready to
16 proceed.
17 THE COURT: Call the jury.
18 (The jury returned to the courtroom.)
19 THE COURT: Good morning, ladies and gentlemen. Well,
20 you didn't flooded out after all. I understand you might get
21 flooded out today, though.
22 All right, defense call its next witness.
23 MR. LAUGHRUN: Thank you, Judge Potter. Your Honor, we
24 would call Investigator Walt Bowling, if Your Honor please.
25 WALTER W. BOWLING,
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1 being first duly sworn, was examined and testified as follows:
2 DIRECT EXAMINATION
3 BY MR. LAUGHRUN:
4 Q. Investigator Bowling, would you state your name and
5 title for the members of the jury, please, sir?
6 A. Walter W. Bowling, investigator.
7 Q. An investigator with the Charlotte Police Department?
8 A. Yes, sir.
9 Q. Investigator Bowling, how long have you been so
10 employed, sir?
11 A. With the police department, almost ten years.
12 Q. And with homicide, how long have you been?
13 A. About five years.
14 Q. Back in June of 1996, you had some involvement in this
15 case, is that correct?
16 A. Yes.
17 Q. Investigator Bowling, I'd ask you if you, correct me if
18 I'm wrong, you talked to Investigator Mike Sanders about the
19 case?
20 A. Briefly, yes.
21 Q. And you were in contact with the Allen family down in
22 York, South Carolina, is that correct?
23 A. On that one day, I believe I went down and spoke with
24 them with Investigator Buening.
25 Q. What, if anything, did you tell them about what the
554
1 defendant asked either you or some member of the police
2 department to relate to the Allen family?
3 A. Would you say that again?
4 Q. I will ask you if you would relate to the members of the
5 jury what you told the Allen family that the defendant had asked
6 somebody from the department to speak to them about?
7 A. That he was sorry and that he went to church and prayed
8 for Donald.
9 Q. Okay. I believe you've indicated you passed that along,
10 is that correct?
11 A. Yes.
12 Q. Now, this morning, did I ask you to take a look at
13 Defendant's Exhibit 18, and let me approach with that.
14 MR. LAUGHRUN: Approach the witness, Your Honor?
15 THE COURT: Yes, sir.
16 BY MR. LAUGHRUN:
17 Q. I'm going to ask you what I've marked, Investigator
18 Bowling, as Defense Exhibit 18, and ask you if that appears to
19 be a list of calls for service at 3413 West Boulevard?
20 A. Yes.
21 Q. And I would ask you briefly if we could go through
22 those, you know, do you not, that the police department can
23 provide calls for service if an address is given, is that right?
24 A. Yes.
25 Q. Ask you to look at the first call, that appears to be
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1 complaint number 930110004000, is that correct?
2 A. Yes.
3 Q. And that shows -- we won't go through them all, but call
4 for service was January 10th, '93 at, what is that, 12:04 a.m.,
5 first call?
6 A. It's 12:40 a.m.
7 Q. And it says out there that there were three cars
8 assigned, is that right?
9 A. Yes.
10 Q. And back to the left, type call, 1091, and that would be
11 what, domestic dispute?
12 A. Some type of domestic dispute.
13 Q. The next call down the list, 1063, would be investigate
14 something?
15 A. Just investigate what is going on there. Usually there
16 is remarks on the calls that we receive.
17 Q. 10, next call was a 1093, which would be what,
18 disturbance?
19 A. A disturbance, some type of disturbance. Again, remarks
20 would be in the caller given by the dispatcher.
21 Q. 1082 would be the next call, what would that be?
22 A. Meet someone in reference to something, not necessarily
23 some type of criminal activity, just meet someone.
24 Q. Next call for service is a 1091, what would that be,
25 domestic dispute again?
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1 A. 1093 is next and then 1091, just a disturbance, and then
2 1091 is a domestic, some type of domestic, doesn't have to be
3 family members.
4 Q. Next call, 1060, what would that be?
5 A. Investigate suspicious vehicle.
6 Q. 1039 next call, what would that be?
7 A. It's a crime scene search call. It's usually where our
8 crime lab goes out and processes a scene, break-in or something,
9 for evidence.
10 Q. 1091 would be a domestic dispute again?
11 A. Yes.
12 Q. Next one, 1063, would be investigate?
13 A. Yes.
14 Q. 1039, again CSS which is crime scene search, is that
15 right?
16 A. Yes.
17 Q. 1091, domestic dispute?
18 A. Correct.
19 Q. 1086?
20 A. It's a larceny.
21 Q. 1092 would be?
22 A. It's an assault with a deadly weapon.
23 Q. 1063 would be investigate again, is that right?
24 A. Correct.
25 Q. And 1091 would be domestic dispute?
557
1 A. Yes.
2 Q. Okay. And 1085, the next call?
3 A. Damage to property, I think.
4 Q. 1086 would be another larceny?
5 A. Correct.
6 Q. 1092 would be ADW?
7 A. Correct.
8 Q. 1039, the next one, crime scene search, is that right?
9 A. Yes.
10 Q. 1096, the next call, would be what?
11 A. Broken down car.
12 Q. Okay. 1060, the next call, would be?
13 A. Investigate suspicious vehicle.
14 Q. And the next one, 1099, would be?
15 A. Serve a warrant on wanted person there.
16 Q. I'm sorry?
17 A. A wanted person or serving a warrant, you would use
18 that.
19 Q. Let's go across and look at 1099. Was that
20 April -- May 2nd of 1996 when that call for service went out?
21 A. That's kind of hard for me to follow. Can I take this
22 out?
23 Q. Sure. Called in as -- 1099, I'm sorry?
24 A. May 2nd.
25 Q. Is that right, May 2nd at 3:10?
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1 A. 3:10 p.m.
2 Q. And it looks like there were three cars that went out
3 there?
4 A. Correct.
5 Q. And then the next call for service would be a 1038, that
6 would be a 911 hangup?
7 A. 1063 next.
8 Q. Again, investigate at?
9 A. Right.
10 Q. And the next one, 1038, 911 hangup?
11 A. Yes.
12 Q. 1046 would be what, some sort of alarm, I think we
13 discussed, is that right?
14 A. Yes.
15 Q. And 1047 would be what, a burglar alarm?
16 A. It's an alarm type call. We don't use it very much.
17 Q. And the next one, 1060, suspicious vehicle?
18 A. Yes.
19 Q. Next one, 1038, 911 hangup, is that right?
20 A. Correct.
21 Q. Investigator Bowling, as part of your duties as an
22 investigator, you do what they call paper cases, do you not,
23 with the DA's office?
24 A. Yes.
25 Q. What does papering mean, briefly?
559
1 A. Just preparing the case for their review.
2 Q. And that would include witness statements, lab reports,
3 anything you have, is that correct?
4 A. Yes.
5 Q. And when a DA rejects a case, what does that mean?
6 A. Means that they are not going to prosecute the case.
7 Q. And based on a variety of factors, I take it?
8 A. It could be any reason.
9 Q. Okay.
10 MR. LAUGHRUN: Thank you, Judge Potter, that's all.
11 THE COURT: Cross?
12 MR. WALKER: Briefly, Your Honor.
13 CROSS-EXAMINATION
14 BY MR. WALKER:
15 Q. Investigator Bowling, you had never met the defendant,
16 had you, before you became involved in this case?
17 A. No, I had not.
18 Q. Had you ever even heard of him?
19 A. No.
20 Q. Did -- wen you went down there to McConnells to relay
21 that message, why did you do that?
22 A. I was asked to do that by my supervisor, Sergeant Rick
23 Sanders.
24 Q. So you didn't necessarily go because you believed what
25 the defendant had told the investigators, did you?
560
1 A. That's correct.
2 Q. The district attorney here in Charlotte will refuse to
3 prosecute a case for several reasons, I believe you said?
4 A. Yes.
5 Q. One of those reasons would be insufficient evidence, is
6 that right?
7 A. Yes.
8 Q. Another reason would be because of limited manpower and
9 resources and the ability to prosecute the case in the State
10 Court system, is that right?
11 A. Yes.
12 Q. And that happens routinely as has been your experience
13 with the DA's office here in Charlotte, is that right?
14 A. It's happened a number of times over the last five
15 years.
16 Q. And just because the DA doesn't prosecute a case in
17 State Court, in your experience that doesn't necessarily mean
18 the defendant didn't do the acts that he was originally charged
19 with, does it?
20 A. That's true.
21 MR. WALKER: I don't have any other questions, Your
22 Honor.
23 THE COURT: Redirect?
24 BY MR. LAUGHRUN:
25 REDIRECT EXAMINATION
561
1 BY MR. LAUGHRUN:
2 Q. But the standard over there, is it not, Investigator
3 Bowling, before they accept a case is it's more likely than not
4 that a jury would convict the person, is that a fair statement?
5 A. Well, I mean, that's not -- you know, there is not a
6 line in the sand where they look at that. There are several
7 reasons. They may not like the witnesses, they may not think
8 the witnesses are reliable, or they may -- I mean, we have had
9 several cases that are similar to this where we have come to
10 Federal Court as opposed to State Court.
11 MR. LAUGHRUN: Thank you, Judge Potter that's all.
12 THE COURT: Thank you sir, step down. Call your next
13 witness.
14 MR. LAUGHRUN: May he be excused with the
15 government's -- no objection from the government?
16 THE COURT: With no objection from the government, he
17 may be excused.
18 MR. WALKER: No objection, Your Honor.
19 THE COURT: Thank you, sir.
20 MR. WILLIAMS: Defendants call Cynthia Maxwell.
21 MR. CONRAD: Your Honor, I object and would like to be
22 heard at this point.
23 THE COURT: All right, sir.
24 (Bench conference not recorded.)
25 THE COURT: Members of the jury, we will have to excuse
562
1 you for just a few minutes, please. You can get some more
2 coffee back there.
3 (The jury left the courtroom.)
4 THE COURT: All right, call your witness.
5 MR. WILLIAMS: Cynthia Maxwell.
6 MR. CONRAD: Your Honor, does the Court have a copy of
7 this exhibit?
8 THE COURT: No, I don't think so.
9 MR. LAUGHRUN: We can't give it to you ahead of time,
10 Judge, we haven't called our witness. We've got it, but we
11 haven't called our witness, so we couldn't give you the exhibit.
12 MR. CONRAD: Your Honor, I have no idea why the Court
13 could not preview a copy of an exhibit, and I would ask the
14 Court to do so in conjunction with this voir dire.
15 THE COURT: Well, let me see the thing.
16 MR. LAUGHRUN: Judge, I don't mind doing that, but the
17 problem is, as you know, we can't give Your Honor stuff ahead of
18 time to preview stuff, it's improper.
19 THE COURT: Nobody is fussing with you, I just want to
20 find out what it's all about.
21 CYNTHIA NEAGLE MAXWELL,
22 being first duly sworn, was examined and testified as follows:
23 THE COURT: All right go ahead, Mr. Conrad.
24 MR. CONRAD: Thank you, Your Honor.
25 VOIR DIRE EXAMINATION
563
1 BY MR. CONRAD:
2 Q. Would you state your name for the Court?
3 A. Cynthia Neagle Maxwell.
4 Q. And how are you employed?
5 A. I am a private mitigation specialist.
6 Q. You are a private mitigation specialist, what does that
7 mean?
8 A. That means that I do in-depth psychosocial assessments
9 of the defendant and try and provide an explanation to the Court
10 and to the jury as to how a person gets from a small baby to the
11 situation that they are in now.
12 Q. You do a psychosocial what?
13 A. Assessment.
14 Q. What is that?
15 A. I interview people within the family and people who have
16 significant knowledge of the defendant, I review the records, I
17 review any other documents relating to the family or the history
18 of the family, I talk with the defendant, I talk with experts, I
19 review national literature and try and assist defense counsel in
20 explaining the behavior of the client.
21 Q. Now, how long have you been doing this private
22 mitigation specialist work?
23 A. Since 1993.
24 Q. And what did you do before that?
25 A. Before that, I was -- immediately before that, I was the
564
1 guardian ad litem district administrator for judicial district
2 27A and 27B in North Carolina.
3 Q. And for how long a period of time did you do that?
4 A. Six and a half years.
5 Q. And so would that have dated back to the mid-1980s?
6 A. That's correct, 1985.
7 Q. And before that, what did you do?
8 A. I was the director for the Heart Society of Gaston
9 County.
10 Q. And what did you do as the director of the Heart Society
11 for Gaston County?
12 A. Provided programs and information regarding heart
13 disease and assisted the families and the patients with their
14 psychological well-being, did a little bit of counseling and
15 self-help kind of group.
16 Q. And before you were director of the Heart Society in
17 Gaston County, what did you do?
18 A. I worked as a social worker, a clinical social worker at
19 Mecklenburg Mental Health Services, and I was the volunteer
20 administrator for Mecklenburg Mental Health Services and the
21 public information officer for Mecklenburg Mental Health.
22 Q. And how long did you do that?
23 A. For three years.
24 Q. And what did you do before that?
25 A. I was a recreational and rehabilitation therapist at
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1 Gaston Lincoln Area Mental Health Program in the inpatient unit.
2 Q. And how long were you a recreational therapist at Gaston
3 Mental Health?
4 A. Approximately two years. I helped set up that program.
5 Q. And before that, what did you do?
6 A. I was in college.
7 Q. And do you have any degrees?
8 A. I do.
9 Q. What degree do you have?
10 A. I have a Bachelor of Arts in psychology with a minor in
11 English literature, and I qualified for a Bachelor of Science in
12 medical technology.
13 Q. Do you have any graduate greases?
14 A. I have no graduate degrees.
15 Q. And when and where did you get your B.A. in psych?
16 A. At the University of North Carolina at Chapel Hill.
17 Q. And what year?
18 A. 1975.
19 Q. Do you belong to any professional organizations?
20 A. I belong to the Court Appointed Special Advocates
21 Associates. That is a holdover from my time as the guardian ad
22 litem district administrator.
23 Q. Is that it?
24 A. That's it.
25 Q. Do you have any license?
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1 A. I have no license.
2 Q. You are not a licensed psychologist?
3 A. No.
4 Q. You are not a licensed psychiatrist?
5 A. No.
6 Q. You are not a licensed investigator?
7 A. No.
8 Q. Now, you indicated that the things that you do in a
9 psychosocial assessment are to interview people, review
10 documents, talk to the defendant, talk to experts and review
11 literature, is that correct?
12 A. That's correct.
13 Q. And that's something anybody could do whether they had a
14 license to be an investigator or call them themselves a private
15 mitigation specialist, is that correct?
16 A. Not without the proper training. You wouldn't know what
17 you were seeing.
18 Q. Okay, tell me what training you've gotten to be a
19 private mitigation specialist.
20 A. May I refer to some notes that I have regarding the
21 training?
22 Q. If they would refresh your recollection if you can't
23 testify without that, please do.
24 A. The only reason that I want to refer to my notes is so
25 that I can tell you both the training that I have and the
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1 training that I have been a part of.
2 In 1993, I had direct supervision with the head
3 mitigation specialist at the North Carolina Center for Death
4 Penalty Litigation. On several of my cases, she worked one on
5 one with me. In 1995, I was at the spring mitigation training
6 workshop by the North Carolina Death Penalty Resource Center.
7 In 1996, I was at the spring training workshop for mitigation by
8 the North Carolina Center for Death Penalty Litigation. In
9 1996, I was at the fall mitigation training workshop by the
10 North Carolina Center for Death Penalty Litigation. Again
11 in '96, I was at the fall conference for death penalty defense
12 by the Association of Trial Lawyers. And in 1997, I both
13 participated in and I was a trainer at the spring mitigation
14 training workshop by the Center for Death Penalty Litigation.
15 Q. That's the summary of your training?
16 A. Yes, sir.
17 Q. Now, as part of your efforts in this case, did you
18 prepare a green three-ring binder entitled, jurors mitigation
19 notebook?
20 A. Yes, I did.
21 Q. And is this notebook a result of the efforts you did in
22 this case?
23 A. Yes.
24 Q. And did you include everything that was told to you by
25 every witness that you interviewed?
568
1 A. In the green binder?
2 Q. Yes?
3 A. No, I did not.
4 Q. What did you include in the green binder?
5 A. Summaries of the information that I had accumulated.
6 Q. And by summaries, what do you mean?
7 A. I took the information that I had accumulated from the
8 interviews, from the experts with whom I had talked, from the
9 documents that I reviewed, I utilized the education and
10 training, on the job experience to put those together into a
11 comprehensive diagram basically of the information on this
12 defendant.
13 Q. And does any of the information -- well, strike that.
14 How did you choose what you would include and what you would not
15 include?
16 A. I chose it based upon the psychosocial stressors that
17 were prominent in this defendant's life.
18 Q. And what do you mean when you use the phrase
19 psychosocial stressors, you are not a psychologist, are you?
20 A. I do have a B.A. in psychology, and I have been a
21 therapist for many years.
22 Q. Are you a licensed therapist?
23 A. I am --
24 THE COURT: Just answer the question, yes or no, are you
25 a licensed therapist?
569
1 THE WITNESS: I do not have a printed license.
2 BY MR. CONRAD:
3 Q. So you are not a licensed therapist?
4 A. No. Can I explain that?
5 THE COURT: Go ahead, yes, ma'am.
6 THE WITNESS: In the human resources field, the
7 supervisors have licenses. When you work for an agency such as
8 a mental health center, as long as you are supervised by someone
9 with a license, you can counsel, you can diagnose, you can work
10 the emergency telephone lines, you can do all of those things as
11 long as you are supervised by someone with a license. And in
12 the situations where I have been a practicing therapist, I have
13 worked under someone with a license.
14 BY MR. CONRAD:
15 Q. So you don't have a license or training to be a
16 professional psychologist, correct?
17 A. I don't have the formal education for a license.
18 Q. Now, this life history that you put together begins in
19 1956, does it not?
20 A. Yes, it does.
21 Q. And that is 16 years before the birth of this defendant,
22 correct?
23 A. No, sir.
24 Q. 17 years?
25 A. He was born -- oh, in 1956, yes, sir, that's correct, I
570
1 apologize.
2 Q. And on Page 1 of that report, second paragraph, you talk
3 about, just as Charlotte began changing, so did the lives and
4 customs of the Cooper family. That's part of your work product,
5 is it not?
6 A. Part of my work product, yes, it is.
7 Q. Do you need any form of education or experience or
8 specialty to make that comment?
9 A. You need to be able to ascertain if there are changes
10 going on in the life of a family.
11 Q. And that could be accomplished by any investigator
12 interviewing any of the family members who are alive at that
13 time, correct?
14 A. Correct.
15 Q. And there is nothing about that, putting that in the
16 report that you add to it that that witness could not testify
17 to, correct?
18 A. Could you repeat that for me?
19 Q. Well, your reiterating what they told you offers nothing
20 more than if that witness stood on the witness stand and
21 testified to it, correct?
22 A. In that statement, yes, sir; in the body of the
23 evaluation, no, sir.
24 Q. Well, tell the Court what you add to the presentation of
25 that information that cannot be gleaned from a witness who
571
1 actually lived the experiences you recount, testifying from that
2 witness stand.
3 A. What was brought to that summation of this family is
4 that I was an objective, trained observer to what went on in the
5 family, and I was able to talk with them at length and listen to
6 their stories, their history as they remember it. And I was
7 also able to review records of the family, the whole family as a
8 unit and assess those records to bring to the jury an objective
9 view of what went on in the family from an overview situation
10 rather than from an individual situation, and it is applicable
11 to not being able to see the forest for the trees. You can get
12 an overview of a family, see the dynamics within the family, and
13 then you are able to give a story form to that life and give an
14 overview of what is going on.
15 Q. On Page 18 of your jurors mitigation notebook, you
16 indicate that Mark became depressed and nonresponsive after the
17 assault. Do you have any professional qualifications to render
18 a diagnosis of depression, are you licensed to do that?
19 A. I believe that in that direct statement that you made, I
20 was giving the words of the family, and it was not part of the
21 DSM-4, that I was listing it on an axis, I was utilizing the
22 word "depressed."
23 Q. And again, the best evidence of that would be the family
24 members who could come into court and tell the Court and the
25 jury what symptoms they saw in the defendant at that time, your
572
1 clinical diagnosis of depression offers nothing to that, does
2 it?
3 MR. LAUGHRUN: Objection, Judge, he's badgering the
4 witness.
5 THE COURT: Overruled.
6 THE WITNESS: I did not offer that as a clinical
7 diagnosis, I offered that as a compilation of several family
8 members' interviews and was able to take away some of the time
9 that it would take for these people to come in and give that
10 impression.
11 BY MR. CONRAD:
12 Q. But if they have come in already and given it, your
13 report offers nothing to that, does it?
14 A. I think that it puts it in a chronological perspective
15 and puts it within the perspective of the rest of the family.
16 Families operate as units.
17 Q. On Page 19, you indicate grades in 11th grade, and you
18 have the line in here, note the change in grades, exclamation
19 point.
20 A. Correct.
21 Q. What professional training is required to make that kind
22 of observation?
23 A. Part of this -- this entire report also went to our
24 experts, and in giving them that report, it shows them that they
25 need to look at those grades. We recognize it is universally
573
1 accepted that when children experience a change of grades, then
2 there are things, especially a downward spiral kind of change of
3 grades, then things are going on in their lives that we need to
4 look at as human service providers, and that is what I was
5 indicating to the experts, to the jury also. I mean, they have
6 enough common sense to look at those grades and recognize that
7 something is happening to this child at this period of time.
8 Q. Page 31 of this life history, you indicate that the
9 federal trial begins January 5th, and then you have four entries
10 after that that are going to happen sometime in the future. So
11 it's really not a life history at all, it's a prediction of what
12 is going to happen in the future, correct?
13 A. I think that listing birth dates is fairly innocuous.
14 Q. What is the benefit to the jury of listing future
15 birthdays of Mark, Mario, John Mack and Sonia?
16 A. That was a situation where I had listed the birthdays
17 every year prior to that, and I continued listing those
18 birthdays at that time.
19 Q. You also have attachments to this that include a life
20 line, a genogram and examples of art that the defendant
21 apparently prepared in jail?
22 A. Yes.
23 Q. Turning your attention to the picture on the second page
24 of the art section, who is that a picture of?
25 A. I asked the defendant that, and he told me it was just a
574
1 girl. These are his -- we have the original artworks available,
2 and these are basically things that he did to keep himself
3 occupied while in jail. In fact, the first picture is a doodle
4 that he did on the back of some of the jail rules.
5 Q. A doodle?
6 A. Doodle, when you are doodling with your pencil.
7 MR. CONRAD: Your Honor, I don't have any other
8 questions.
9 THE COURT: All right, Mr. Laughrun.
10 BY MR. WILLIAMS:
11 Q. You've testified in State Court before?
12 A. Yes, sir, I have.
13 Q. And on how many occasions?
14 A. I have testified in a death penalty trial on one
15 occasion in State Court.
16 Q. And what year was that?
17 A. That was in 1997.
18 Q. And were you qualified as an expert in that case?
19 A. I was.
20 Q. And what were you qualified as an expert in that
21 particular death penalty case?
22 A. I was qualified as an expert in child abuse and neglect.
23 Q. And was that based upon the background as set out in
24 your vitae sheet?
25 A. Yes, it was.
575
1 Q. And have you testified in other state cases,
2 noncriminal?
3 A. I have testified in many state cases, noncriminal.
4 Q. And have you worked on criminal cases and civil cases
5 before in the area that you are being asked to testify in this
6 case?
7 A. I have.
8 Q. And have you -- basically, you were asked as a
9 court-appointed mitigation specialist to prepare a life history
10 of the defendant, is that correct?
11 A. That's correct.
12 Q. And that life history is something that you have done
13 many times before, is that correct?
14 A. I have done it many times before.
15 Q. How many times have you prepared a -- how many different
16 life histories have you prepared like this one that you have
17 done in this case?
18 A. I have prepared 30 or more life histories like the one I
19 have done in this case.
20 Q. Are those in cases that you testified or that you just
21 prepared for somebody at somebody's request?
22 A. They are cases that I have prepared at someone else's
23 request, and I -- all except for the one, I did not testify in
24 them.
25 Q. Were those prepared for attorneys or other
576
1 professionals?
2 A. They were prepared for attorneys and other
3 professionals.
4 Q. And when you prepare a life history, is that for the
5 purpose of providing that information to the defense attorneys
6 and to the psychologists or psychiatrists who are testifying or
7 going to testify or involved in the defense of the case?
8 A. Yes, it is.
9 Q. Is the kind of information that you provide and have
10 experience in with regard to obtaining a life history the kind
11 of information that is reasonably relied upon by experts in the
12 fields of psychology and psychiatry as a basis for their
13 opinion?
14 A. Yes, it is.
15 Q. And when you do a life history, you talk to many more
16 people than you -- than testified in this case, is that correct?
17 A. That's correct.
18 Q. How many people in all did you talk to approximately in
19 this case to obtain this history?
20 A. On an informal basis, I probably talked to 50 or 75
21 people.
22 Q. All right. And then once you do that, you also review
23 records and various other items of information before you
24 prepare the typed life history, is that correct?
25 A. That's correct.
577
1 Q. And then after you have done that, you go to the -- and
2 prepare a life line, is that correct, as in your notebook?
3 A. That's correct.
4 Q. And the life line is for what purpose?
5 A. It is to provide me and the other experts with
6 information specific to the defendant and so that we can have
7 basically a graph to see the trends in the family.
8 Q. And does the life line and life history deal with the
9 life of Mark Barnette?
10 A. Yes, it does.
11 Q. In the genogram that you do, is that something that
12 people in your area of work as a mitigation specialist and
13 social workers use as one of their tools in doing a social
14 assessment or a life history?
15 A. That is a common universal kind of tool that is used by
16 both clinical social workers and psychologists that help explain
17 and summarize the life, the problems, the -- and you can also
18 use it to show the strengths of a family.
19 Q. And are the life histories and the life lines that are
20 set out in your notebook tools that are used by psychologists,
21 psychiatrists, social workers and mitigation specialists within
22 their field as part of what they do?
23 A. Yes.
24 Q. And what is the reason for that?
25 A. The reason is to provide them with a way of seeing this
578
1 family in an overall perspective. It is a way of providing them
2 information that is easily conceptualized and that is easily
3 retrieved to give specifics in the life of one of our clients.
4 Q. And would the items that you discussed in or set out in
5 your life history and your time line and your genogram be
6 relevant to the area of mitigation within the confines of the
7 defense of a capital case?
8 A. Yes.
9 Q. And how so?
10 A. They are relevant in that these are the pivotal points
11 that the client has had in his or her life to get to the place
12 where they are now.
13 Q. And you have had training to do that with regard to
14 workshops in the North Carolina Center for Death Penalty
15 Litigation as you have testified. Do those training seminars
16 and workshops prepare you to do the type of thing you did in
17 this case in preparing a notebook with regard to the life
18 history, time line and a genealogy?
19 A. That along with the training that I had under the
20 supervision of licensed therapists in mental health centers and
21 under the supervision of the North Carolina Death Penalty
22 Center.
23 Q. Okay, so you don't have a license. Is there any such
24 thing as a licensed mitigation specialist in North Carolina?
25 A. Not in North Carolina.
579
1 Q. Okay. And you don't render opinions with regard to
2 psychiatric or psychological matters, do you?
3 A. Not in this case situation, no.
4 Q. And all you are doing is prepare this information and
5 putting it together in one place so that not only the lawyers
6 for the defendant can put it together and understand it, but so
7 that the experts such as psychologists and psychiatrists can
8 review it and use it as background information with regard to
9 their opinions?
10 A. That's correct.
11 MR. WILLIAMS: I believe that's all, Your Honor.
12 THE COURT: Anything else?
13 MR. CONRAD: No.
14 THE COURT: All right, Mr. Conrad.
15 MR. CONRAD: Your Honor, one thing is for sure, this
16 witness is not an expert, and I think the guideline for the
17 Court should be Rule 702, testimony by experts. It says if
18 scientific, technical or other specialized knowledge will assist
19 the trier of fact to understand the evidence or determine a fact
20 in issue, a witness qualified as an expert by knowledge, skill,
21 experience, training or education may testify thereto in the
22 form of an opinion or otherwise.
23 Your Honor, I contend this witness is just not an
24 expert, that this area of private mitigation specialty is
25 nothing more than an investigator going out, interviewing
580
1 people, looking at data and putting reports together, and that
2 type of thing doesn't come into court as an expert witness. I'm
3 not saying that their true experts can't rely upon the data this
4 witness has collected and cant render expert opinions in their
5 field of expertise based in part on reliance on this
6 information.
7 What I am contending, that this jury would be confused
8 and misled by the presentation of this witness testifying as a,
9 quote, expert, end of quote, reiterating much of what the jury
10 has already heard, giving opinions on many matters in a 32-page
11 life history which she is not qualified to give. I think the
12 probative value where especially this jury has heard at great
13 length from three generations of family members already, I think
14 the probative value of her testimony is severely outweighed by
15 the danger of confusion and misleading the jury.
16 Secondly, Your Honor, I would contend that the
17 defendants are offering this witness as an expert witness so she
18 can offer opinions, both in the form of oral testimony and in
19 this written product. They have not given notice to us that
20 they intend to offer this witness as an expert. She is not
21 qualified to testify as an expert. And because we haven't
22 gotten notice as required under the rules and because she is, in
23 fact, not an expert, this Court should not allow the witness to
24 testify nor let the notebook come in as substantive evidence at
25 this point, not -- and again, my point, Judge, is not that their
581
1 experts can't rely upon the work product in terms of their later
2 rendering opinions to this jury, but that this witness is not
3 qualified by experience, training or background to render those
4 opinions.
5 She has labeled this notebook as a jurors mitigation
6 notebook. Jurors are the ultimate mitigation specialists. You
7 can call yourself anything you want to call yourself. Anti
8 death penalty advocacy groups can put on seminars to train
9 mitigation specialists. But when all of that is pierced away,
10 she is offering opinions on ultimate issues that the jury is to
11 decide, and she is not qualified to do that.
12 THE COURT: All right, Mr. Williams?
13 MR. WILLIAMS: Judge, what we are trying to do very
14 obviously here is not only to lay out for the jury the basis of
15 the opinion of -- some of the basis of the opinion of the
16 experts to come. But under Lockett versus Ohio and statutory
17 story provisions of the mitigation statute in the federal law,
18 we have a right to present the life of Mark Barnette to this
19 jury, there are different ways to do that, but that is
20 absolutely paramount under the Lockett versus Ohio decision. In
21 order for him to, and us to be able to do that, we can do it
22 through live witnesses. We have attempted to do that. But we
23 cannot take every person that has been involved in 24 years of
24 Mark Barnette's life and parade them into this courtroom,
25 because we would be here for another six weeks.
582
1 So the purpose of this kind of testimony is to give the
2 jury after the jury has a flavor of his life from live witnesses
3 and the family, we have somebody come in, who is trained, to
4 simply come in and prepare a life history from the standpoint of
5 the many other witnesses that she has talked to that deals
6 directly with his life and to put it in some kind of organized
7 form to conceptualize it and organize it in a compact way for
8 the jury to be able to understand the life of Mark Barnette.
9 There is no opinions expressed in this. This is a
10 compilation of information, and it's then put in the form of
11 information in a life history. That's what she is, that's what
12 a mitigation specialist is. There is no licensure, it's people
13 who come in to do this and have done it. And she certainly has
14 been qualified as an expert in abuse and neglect. She has the
15 ability to look at Mark Barnette's life, to then take his life
16 and prepare it in a life history written form and go from there
17 to an exhibit which puts it in a very confined time line method,
18 and that is helpful to the jury. It's helpful to anybody in any
19 kind of a trial where you are using an exhibit to illustrate the
20 testimony of the witnesses, and that is to illustrate the life
21 of Mark Barnette. It's in a short form. It's to try to save
22 time, not to add time to this trial. And I think it's certainly
23 relevant since it deals with his life, and it's just something
24 we can do and it won't take long to do. We put it into evidence
25 and that's it, and that's something that the jury has a right to
583
1 see.
2 MR. LAUGHRUN: Judge, if I could, briefly, Judge, too,
3 under --
4 MR. CONRAD: Your Honor, I --
5 THE COURT: All right.
6 MR. LAUGHRUN: Under 13.35-93, the sentencing statute,
7 it says at the sentencing hearing, information may be presented
8 as to any matter relevant to sentencing, including mitigating or
9 aggravating provisions.
10 THE COURT: Haven't you done that, Mr. Laughrun?
11 MR. LAUGHRUN: Judge, no, sir, we have not. We have not
12 finished. We've got to tie it all together, Judge.
13 THE COURT: All right, go ahead, finish up.
14 MR. LAUGHRUN: Information is admissible, regardless of
15 its admissibility under the rules governing evidence at criminal
16 trials, except prejudice confusing the issue or misleading the
17 jury. It doesn't say cumulative in there, Your Honor.
18 Now, the government doesn't like it because it puts it
19 all together. It ties everything up about his life. We are
20 going to put an expert up today that's going to talk about
21 domestic violence being learned behavior, it goes through
22 generations in the family. This is part of that, and Mr. Conrad
23 can cross-examine her all he wants to. The jury may give it no
24 weight at all. They have the right to disregard. He can argue
25 to it, well, she's working for the defense. He can give it all
584
1 that spin he wants to. It's admissible, Judge. The weight the
2 jury gives it is totally up to them. But I would contend to you
3 based on that provision as Mr. Williams argued, it does tie it
4 all together. It's just like a summary witness, Judge, the
5 government uses in 90 percent of the criminal cases they
6 prosecute, they didn't use it in this case, put a summary
7 witness up, and that's when the rules of evidence apply. They
8 don't apply here. The jury can disregard it at their pleasure,
9 but they have a right to hear the whole thing, Judge, from one
10 witness. And as Mr. Williams said, it's not going to be long.
11 We are not going through page by page of that. We're not going
12 through all 30 some pages line by line, we are not going to do
13 that. That's why we did it this way.
14 THE COURT: Mr. Laughrun, I don't see that she's added
15 one thing to this trial. Just paging through here while y'all
16 were talking, I don't know what the page numbers are, I don't
17 know where you get the page numbers, Mr. Conrad, they don't have
18 page numbers on mine.
19 MR. CONRAD: They are at the bottom, 1A and B, life
20 history.
21 THE COURT: I got that -- oh, I see, that's what it
22 means. Okay, I didn't know they were page numbers. 13A and B,
23 life history. Let's look at a few of these. June 15, Sonia,
24 Mark, Mario and Derrick have paternity test performed and on
25 6-27-87 the results that Derrick is the father of neither of the
585
1 boys is confirmed. We've heard that, what do you want to do it
2 again for?
3 MR. LAUGHRUN: Judge, well, let me tell you, we've got
4 to give the -- there is some stuff in here that is damning to
5 the defendant.
6 THE COURT: All right, next page, Page 14, I'm just
7 picking things out of here at random, Sonia was again going to
8 clubs with Tina Davis and was seeing a drug kingpin, his name
9 was Mark Reagan, he owns a night club, St. Mark's, Mark had a
10 regular girlfriend. What is that -- Page 15, June, this is the
11 year that Sonia and the boys and her father -- that Sonia sent
12 the boys to her father's home on the last day of school in a cab
13 and she went to Atlanta to find work and a place to live.
14 That's been before the jury.
15 MR. LAUGHRUN: Judge, but look, you've got all of the
16 stuff that's not. You've got all of the school records that are
17 in here, and we are going to have to go out and I'm going to
18 tell the Court we are ineffective if we don't do that. We've
19 got the records. We can't just pile up a stack of school
20 records and say, here is this. We've got to bring in witnesses
21 to verify every school record, and we've got them and we can do
22 that. We are going to ask Your Honor for a recess to get those
23 people under subpoena to be here. That's what this witness is
24 for, to collate, accumulate, put it all together and make some
25 sense out of it.
586
1 THE COURT: I'm still reading, Page 18, Mark becomes
2 depressed and nonresponsive after the assault, he was very
3 popular prior to the assault. We've heard that.
4 MR. LAUGHRUN: Judge, you are right, a lot of this you
5 have heard, and you can pick and choose and cut and paste.
6 We've got to get--
7 THE COURT: I'm not picking anything in particular, I'm
8 just glancing through here.
9 MR. LAUGHRUN: I understand, and we are not going to go
10 over it line by line, Judge Potter. We have no intention of
11 doing that. The stuff that were going to --
12 THE COURT: What is the purpose of this witness?
13 MR. LAUGHRUN: The purpose, Judge, is to put it all
14 together. We don't have the information about the school
15 records in, okay. That's in here. We don't have information
16 about where some of the moves were. Some of the family members
17 didn't remember dates and times. We've got that in here. We
18 can't just pick and choose and say, okay, Ms. Maxwell, tell us
19 what the -- she can't sit in the courtroom because she is
20 excluded, which she should have been. We've got to give the
21 jury the whole story about Mark, the good and the bad. Sure,
22 there is some in here that's cumulative, you are absolutely
23 right, but there is a lot of stuff in here, Judge, that's not in
24 here, that's not in here, about his work records. There is some
25 stuff in here that's damning about his work records. The jury
587
1 hasn't heard that yet; we want them to see the whole story. And
2 sure, some of it is what you heard yesterday. If it wasn't, she
3 couldn't testify to it.
4 THE COURT: What are you going to try to designate this
5 witness as, an expert in mitigation?
6 MR. LAUGHRUN: She's an expert as she said earlier in
7 that and a mitigation expert. We are not going to ask opinion
8 questions, Judge. We are not going to ask, in your opinion as a
9 mitigation specialist, what happened here. She is a fact
10 witness, Judge, and that's her title. You can be -- you can
11 change the oil in a car and be an expert. As long as you've got
12 some specialized training, and she's been a social worker,
13 Judge, for many years, she's a guardian ad litem, and guardian
14 ad litem's, what they do, Judge, is they take over children who
15 are abused and neglected and they are basically the children's
16 advocate in court, is my understanding.
17 THE WITNESS: Yes, sir.
18 MR. LAUGHRUN: They go to court and advocate for
19 children who are products of this environment that the jury is
20 supposed to hear about, so they have sat through -- and, Judge,
21 juvenile court is unlike any court in the world. It's like you
22 told -- you said one time it's like a zoning hearing, it all
23 comes in. That's the way juvenile court is. And that's what
24 this person is trained to do, she's trained to pick out --
25 THE COURT: You are trying to make a juvenile court out
588
1 of this.
2 MR. LAUGHRUN: No, sir, I'm not, Judge.
3 THE COURT: I'm not going to allow her to testify. I
4 just do not think she's qualified to testify about anything. If
5 you've got some investigator or somebody to summarize things,
6 fine, but not this one.
7 MR. LAUGHRUN: She is that person, Judge, she is that
8 person. She's the only investigator we've got. We have not
9 come to court and asked Your Honor for tons of funds to do
10 that. She is the person designated to do this. If not, we've
11 got to go back and ask Your Honor for a recess and get a witness
12 to come in and testify to everything on here, school records,
13 employment records, things like that.
14 MR. CONRAD: We will stipulate to all that, Judge.
15 We'll stipulate to all of the school records, stipulate to all
16 the employment records. They can't use that to get an otherwise
17 not qualified person into court as an expert. They just can't
18 do that. We'll stipulate --
19 MR. LAUGHRUN: Then why don't they stipulate the
20 admissibility of this then?
21 THE COURT: You're not going to stipulate to this
22 notebook and give it to the jury, no.
23 MR. LAUGHRUN: Well, I'm just asking if they'll
24 stipulate to that. I mean, she ties it all together, Judge.
25 And now we've got to go back and pick and choose, and we are
589
1 going to ask Your Honor for a recess to do that.
2 THE COURT: I find she is not qualified. They will
3 stipulate to anything that you want them to stipulate to as far
4 as school records are concerned or anything else, but not the
5 testimony of this witness. It goes before the jury with the
6 impression that she is some expert on something, no.
7 MR. LAUGHRUN: Well, can you just let her testify as to
8 what she did in the case, Judge, without qualifying her as an
9 expert? Here is what she did, she prepared this and it's a
10 result -- it's a result of her investigating and talking --
11 she's got over 200 hours, Judge, of talking to folks about this
12 family, about these records. We've had to get records from
13 three different states, Judge, and she's done that. I mean,
14 without qualifying her as an expert, say, here is what I came up
15 with and here is why. The experts are going to -- it's going to
16 dovetail in to Dr. Halleck, Dr. Salton, Dr. Cunningham. It's
17 going to all fit in together.
18 MR. CONRAD: Your Honor, they have experts, real experts
19 that will come in and testify about their opinions based on the
20 information that they relied upon, and they can rely upon
21 anything this witness did in terms of investigating the case if
22 it's reasonably relied upon in the field of expertise. They
23 don't need this witness to do that. It's just misleading to the
24 jury, and it confuses the issues. They have real experts coming
25 up that can testify that certain opinions were formed because of
590
1 reliance upon certain materials.
2 MR. LAUGHRUN: Judge, she doesn't form any opinions, she
3 is not that type of witness.
4 THE COURT: Just a minute. Mr. Conrad, what is it that
5 you will stipulate to as far as history?
6 MR. CONRAD: I have heard Mr. Laughrun say he's got to
7 ask for a recess and go get school records and employment
8 records and all of that. All of that is something is that we
9 will stipulate to the jury. He can prepare a short summary of
10 school records; we don't have any objection to that. We have
11 put employment information before the jury, and if he's got -- I
12 know that he has employers on his witness list that will
13 testify, so that's coming in to and there is no objection to
14 it. I will not object to experts that they call later on
15 relying upon this information if that's the type of information
16 reasonably relied on in the field of their expertise. Judge,
17 all I'm saying is that this particular witness is unqualified to
18 do what they are asking her to do, not that other experts can't
19 rely upon it.
20 MR. LAUGHRUN: Can I ask a stupid question, Judge I've
21 asked them before? Why in the world did we -- why in the world
22 was she appointed as a mitigation expert in this field? Your
23 Honor saw her qualifications, you saw her vitae.
24 THE COURT: I didn't know what you were getting
25 Mr. Laughrun, all I know was -- I didn't see any qualifications.
591
1 MR. LAUGHRUN: Yes, sir, you saw a vitae sheet, Judge.
2 MR. CONRAD: At that time, Your Honor, we had no
3 opportunity to voir dire this witness, we weren't even part of
4 that process. And after our voir dire, you know more about this
5 witness's background than her qualifications.
6 MR. LAUGHRUN: And, Judge, again, we are not asking her
7 to come in and give an opinion about it.
8 THE COURT: I understand that at this point. I think
9 that's what you started off at, but you are not going to get
10 that.
11 MR. LAUGHRUN: No, sir, we had no intention of asking
12 her any opinion questions whatsoever.
13 THE COURT: Is there any way we can make a summary of
14 what the records are in here?
15 MR. LAUGHRUN: That's what that is, Judge.
16 THE COURT: I'm talking to him. Would you stipulate to
17 the summary of these records?
18 MR. CONRAD: I will stipulate to any school records they
19 want to put it and any employment records. Those are the two
20 things that I heard Mr. Laughrun say.
21 MR. LAUGHRUN: Judge, I haven't, to be deferential to
22 Your Honor, I was in my office until 10:30 last night going over
23 with our experts. I have not and Mr. Williams have not gone
24 through here and said, okay, now --
25 THE COURT: We can do that at a later time.
592
1 MR. LAUGHRUN: Judge, we are almost through with our
2 case now.
3 THE COURT: We can do that today or tomorrow or
4 whenever. We are not going to have it by the testimony of this
5 witness.
6 MR. WILLIAMS: May I address the Court just briefly?
7 THE COURT: Yes, sir.
8 MR. WILLIAMS: Would Your Honor consider to allow us to
9 at least introduce through this witness the time line only,
10 which is this document? And let me ask the Court to listen to
11 me, please. This is the time line which is a blowup of that
12 document in there, and we would offer this exhibit to illustrate
13 the testimony of the witnesses in the life of Mark Barnette.
14 THE COURT: Well, I can't see it except a lot of dots.
15 MR. LAUGHRUN: It's in your notebook, Judge.
16 MR. WILLIAMS: It's in your notebook, Your Honor. It's
17 Tab 3, I think, Your Honor.
18 THE COURT: Oh, that thing?
19 MR. LAUGHRUN: It says life line.
20 MR. WILLIAMS: This is simply a blowup of that, and we
21 would offer -- we would offer all of it, but at the very least,
22 would you consider allowing us to put that into evidence to
23 illustrate the testimony of the witnesses in the life of Mark
24 Barnette?
25 THE COURT: What witnesses you talking about, the ones
593
1 who have already testified?
2 MR. WILLIAMS: All of the witnesses who have testified.
3 And there is also the statement of Tina Davis that is going to
4 be offered into evidence per stipulation with the government.
5 MR. LAUGHRUN: Judge, the photographs in the life line
6 have already been offered. They were identified and admitted
7 yesterday by Your Honor through Sonia. So all of those, it's no
8 new evidence, it merely illustrates it just like you would a
9 photograph. And all of the information in there about the
10 dates, conviction dates are in there, dates the government says
11 it's paraded before the jury about the defendant being convicted
12 a certain -- they're in there, too. We are not trying to cut
13 and paste.
14 MR. CONRAD: Do I understand defense counsel to be
15 saying that there is no new information on that time line?
16 MR. LAUGHRUN: I didn't say that, Judge.
17 MR. CONRAD: I thought that's what you said.
18 MR. LAUGHRUN: I'm saying what is on there has already
19 been offered or we have evidence, for example, school records,
20 stuff like that, to verify.
21 THE COURT: Well, if it's already been admitted.
22 MR. WILLIAMS: We know all of the photographs have been
23 admitted.
24 THE COURT: I'm just asking you if it's all been
25 admitted, then I see no harm in letting them summarize that to
594
1 the jury.
2 MR. CONRAD: Your Honor, could you give us over the
3 lunch break to review this and to -- we might just stipulate to
4 the admissibility of that life line.
5 MR. WILLIAMS: That would be fine.
6 THE COURT: I think that's fine.
7 MR. CONRAD: But my concern is that there is a bunch of
8 stuff in there that there is no testimony for.
9 THE COURT: I haven't looked at it except --
10 MR. WILLIAMS: This is a blowup, if Your Honor please,
11 of what is in notebook, so you don't need --
12 THE COURT: I understand that, but I haven't had a
13 chance to go through and check everything in there. I'm just
14 saying that if it's just a history, which you've already been
15 through, I think it might be admissible, but let the government
16 look at it.
17 All right, ready to start?
18 MR. CONRAD: Yes, sir.
19 THE COURT: You can step down, thank you.
20 MR. LAUGHRUN: Judge, can we for the record offer
21 Defendant's Exhibit --
22 THE COURT: Yes, sir, you can offer the notebook for the
23 record.
24 MR. LAUGHRUN: 57 for the record.
25 THE COURT: What is the number?
595
1 MR. LAUGHRUN: 57, Your Honor, for the record, if Your
2 Honor please.
3 THE COURT: Yes, sir, you can offer it for the record,
4 admitted for the record and the record only.
5 THE COURT: Do you have another witness you can call
6 now?
7 MR. LAUGHRUN: Sir, could you give us about five
8 minutes, Judge, so I can find out who's here?
9 THE COURT: Yes, sir, we will take longer than that. We
10 will take till a quarter of, is that enough time for you?
11 MR. LAUGHRUN: Ten minutes is fine, Judge.
12 THE COURT: Let's make it 10:45, that's about ten
13 minutes. Are you going to tell me after this -- I'm not going
14 to look at it myself.
15 MR. CONRAD: I will look at it at lunchtime.
16 THE COURT: I will let y'all see if you have any
17 objection to it. Recess until 10:45.
18 (Brief recess.)
19 THE COURT: Mr. Laughrun, are you ready?
20 MR. LAUGHRUN: Judge, we have -- there are some folks --
21 we have got an exhibit we want to offer, stipulated to by the
22 government, of Tina Davis. We have got copies for all of the
23 jury. The government objected to us reading it. We've got a
24 copy for all of them to read.
25 THE COURT: What is that?
596
1 MR. LAUGHRUN: Statement from witness Tina Davis that we
2 had. She is medically unavailable due to her cancer.
3 THE COURT: Oh, you have no objection to that?
4 MR. CONRAD: No.
5 THE COURT: All right, good.
6 MR. LAUGHRUN: We would like them to read that. Then we
7 have got a person here from the jail, and then we've got three
8 folks from Butner who are supposed to be here at 11:00 o'clock.
9 THE COURT: How long is the statement?
10 MR. LAUGHRUN: It's six pages.
11 THE COURT: All right, you've got one for each one of
12 the jurors so they don't have the pass it around?
13 MR. LAUGHRUN: We have one for each juror.
14 THE COURT: All right, bring them in.
15 (The jury returned to the courtroom.)
16 THE COURT: Apologize for the delay, members of the
17 jury, but we had to take up something which came up this morning
18 and it took longer a little bit more time than we planned.
19 All right, I believe the defendant has some statements
20 from a witness who is not able to be here because she's
21 medically indisposed, is that correct.
22 MR. LAUGHRUN: Yes, sir.
23 THE COURT: Were going to pass that to you. You can
24 read it, each one of you can take a chance to read it.
25 MR. LAUGHRUN: It's a statement, Judge, dated
597
1 September 23rd, 1997, Defendant's Exhibit 56, of witness Tina
2 Davis. We have a copy for the Court and a copy for all of the
3 jurors, if I could give them to Gerry to pass to the jury.
4 THE COURT: All right, sir, fine. Do you have a copy
5 for the Clerk to file?
6 MR. LAUGHRUN: Yes, Your Honor.
7 THE COURT: All right, does everybody have a copy -- oh,
8 still passing them out.
9 Okay, we will all be quiet and let y'all read that to
10 yourselves.
11 MR. LAUGHRUN: Judge, may we approach the bench while
12 they are reading that?
13 THE COURT: Yes, sir.
14 (Bench conference not recorded.)
15 (Pause while the jury reads the statement.)
16 THE COURT: I believe all of the jurors are finished
17 reading the statement by Tina Davis. Tina Davis, as I
18 understand it, has cancer, is that right, Mr. Laughrun?
19 MR. LAUGHRUN: Judge, Mr. Williams just went to get the
20 diagnosis if you'd like to have that.
21 THE COURT: I mean, that's what she's been diagnosed
22 with, cancer?
23 MR. LAUGHRUN: She has spinal cancer, Your Honor, and is
24 confined to a wheelchair and is under chemotherapy and other
25 extreme medication for the pain.
598
1 THE COURT: That's the reason, of course, that she is
2 not here to testify, and the government has agreed to let y'all
3 read this statement which was collected by Ms. Cynthia Maxwell.
4 Thank you all. Ready for your next witness,
5 Mr. Laughrun?
6 MR. LAUGHRUN: We call Sergeant Belton, if Your Honor
7 please.
8 ANTHONY BELTON,
9 being first duly sworn, was examined and testified as follows:
10 DIRECT EXAMINATION
11 BY MR. LAUGHRUN:
12 Q. Would you state your name for the Court, please?
13 A. Anthony Belton.
14 Q. Mr. Belton, by whom are you employed, sir?
15 A. Mecklenburg County Sheriff's Office.
16 Q. What is your capacity there, sir?
17 A. I'm an assistant commander of M A classification and
18 records.
19 Q. And you are a sergeant there with the sheriff's
20 department?
21 A. Yes, sir.
22 Q. Sergeant Belton, who is your immediate supervisor?
23 A. Captain Allen E. Cobb.
24 Q. Where is Captain Cobb today?
25 A. He happens to be on training.
599
1 Q. So he had prescheduled training?
2 A. Yes, sir.
3 Q. And you work directly under him, is that correct?
4 A. Yes, sir.
5 Q. What do y'all do at M A classification, what is your
6 job?
7 A. My job is to ensure that all pretrial detainees are
8 housed in different custody levels such as minimum, medium and
9 maximum custody.
10 Q. And do you also have access to all the records of the
11 Mecklenburg County jail?
12 A. Yes, sir, I do. Second part of my job is to have all
13 incoming records to come into our section, and we do have access
14 to all archive records, too.
15 Q. Archives meaning old records?
16 A. Old records, yes, sir.
17 Q. Now, at one time, the Mecklenburg County Sheriff's
18 Department had a facility up at what I call Spector Drive, is
19 that right?
20 A. Yes, sir.
21 Q. What I call the pods up there, is that right?
22 A. Yes, sir.
23 Q. Closed that down for awhile, moved folks to the new
24 jail, and now the pods, are they reopened, is that a fair
25 statement?
600
1 A. Yes, sir.
2 Q. The folks that were out at Spector Drive were moved to
3 the new facility, is that correct?
4 A. That's correct.
5 Q. Are you familiar with the jail records for Aquilia
6 Marcivicci Barnette, Sergeant?
7 A. Yes, I am, sir.
8 Q. Have you reviewed those records before coming to court
9 today?
10 A. Yes, I have.
11 Q. And tell the jury whether or not -- Mark has been in
12 custody since June of '96, is that correct?
13 A. Yes, sir.
14 Q. Up until today?
15 A. Yes, sir.
16 Q. Has he had any infractions, writeups or disciplinary
17 actions at all?
18 A. No, sir.
19 Q. None at all?
20 A. None at all.
21 Q. And if he had one of those, it would come to your
22 office, is that correct?
23 A. Yes, sir, it would.
24 Q. And all of those records are computerized, are they not?
25 A. Exactly.
601
1 Q. And if he had one at even the Spector Drive facility, it
2 would come to your office at the main jail, is that a fair
3 statement?
4 A. Exactly.
5 MR. LAUGHRUN: Thank you, Sergeant Belton.
6 THE COURT: Cross?
7 MR. WALKER: We don't have any questions.
8 THE COURT: Thank you very much, sir. Call your next
9 witness.
10 MR. LAUGHRUN: Judge, may we check and see if our folks
11 are here?
12 (Pause.)
13 MR. LAUGHRUN: May we approach Your Honor for one
14 second?
15 THE COURT: Yes, sir.
16 (Bench conference not recorded.)
17 SALLY JOHNSON,
18 being first duly sworn, was examined and testified as follows:
19 DIRECT EXAMINATION
20 BY MR. LAUGHRUN:
21 Q. Dr. Johnson, would you state your name for the members
22 of the jury, please, ma'am?
23 A. Yes, my name is Dr. Sally Johnson.
24 Q. Dr. Johnson, by whom are you employed, ma'am?
25 A. I'm employed by the United States Public Health Service
602
1 assigned to the Federal Bureau of Prisons at the federal
2 correctional institution in Butner, North Carolina.
3 Q. And Dr. Johnson, for the record, where is Butner, North
4 Carolina exactly?
5 A. Butner, North Carolina is about 150 miles from here.
6 It's in the Research Triangle near Raleigh, Durham and Chapel
7 Hill.
8 Q. Straight up I-85?
9 A. That's correct.
10 Q. Dr. Johnson, I know you just got here today, and we
11 appreciate you being here. Tell the members of the jury exactly
12 what you do for the USP at Butner?
13 A. Okay. At the institution at Butner, I am the chief
14 psychiatrist and I'm also the associate warden for health
15 services, which means that administratively I'm responsible for
16 the running of the psychiatric hospital and for the general
17 medical care that is given to our population of about 1,000
18 inmates. Those inmates are both people who are convicted of
19 crimes and serving their sentences and those who are sent to the
20 Court for evaluations. And I'm administratively responsible for
21 that, and I also do evaluate patients who are referred by the
22 Court and supervise patients who are in treatment there at the
23 hospital.
24 Q. What is your qualifications and background, you have a
25 medical degree, is that correct?--
603
1 A. That's correct, I have a medical degree and I have
2 completed specialty training in psychiatry, I did my training at
3 Duke, and then I am board certified in psychiatry and neurology
4 and subspecialty board certified in forensic psychiatry.
5 MR. LAUGHRUN: Will the government stipulate to her
6 qualifications as a forensic psychiatrist?
7 MR. CONRAD: Yes, sir.
8 MR. LAUGHRUN: Is that a fair stipulation, Doctor,
9 forensic psychologist?
10 THE WITNESS: That's correct.
11 THE COURT: The Court will so find her.
12 BY MR. LAUGHRUN:
13 Q. Dr. Johnson, correct me, the Butner unit is a secure
14 facility?
15 A. That is correct, it -- well, it's both a minimum
16 security camp and a medium security federal prison that has a
17 hospital, so the hospital is considered administrative being
18 that it takes all security of inmates.
19 Q. And it would be a -- it's not a camp, that part is not a
20 camp, is that correct?
21 A. That's correct. The camp is adjacent to the main
22 facility, but we -- I have responsibility for both.
23 Q. And you are familiar and you know the defendant, Aquilia
24 Marcivicci Barnette, is that correct?
25 A. That's correct.
604
1 Q. And Dr. Johnson, you had a chance to see him back in the
2 fall of this year, is that correct?
3 A. That's correct.
4 Q. He was in the Maryland pod, is that right?
5 A. Pardon?
6 Q. The unit where you -- where the evaluations are done is
7 the Maryland pod, is that right?
8 A. It's not actually a pod. He was admitted through the
9 Maryland seclusion admission unit and then subsequently housed
10 in the Maryland open population unit, yes.
11 Q. And he moved out of the seclusion area, is that correct?
12 A. That is correct.
13 Q. Why was he moved out of that, Dr. Johnson?
14 A. Well, our interest in doing evaluations is to keep
15 patients in the least restrictive area that we can, and so we
16 admit everyone through the seclusion admission unit, which is
17 our most secure unit where the cells are individual. And
18 then --
19 Q. Isolation?
20 A. Well, not necessarily. People may be coming out on
21 passes, but it is the most restricted unit. And then we moved
22 him into the open population unit, which is one of the housing
23 units in the hospital, I think about midway through the
24 evaluation, because it was determined he could function out
25 there to complete the evaluation.
605
1 Q. And I take it if his actions had been other than
2 appropriate, he would not have been allowed to go into the open
3 population, is that a fair statement, Dr. Johnson?
4 A. Right. If we felt that he was at risk of harming
5 himself or harming others or being harmed by others on an
6 imminent basis, we would not have put him in the population.
7 Q. And Dr. Johnson, you prepared a report about your
8 findings, is that correct?
9 A. That is correct. I prepared a report for the Court
10 regarding my evaluation.
11 Q. Do you have a copy of that report there with you?
12 A. Yes, I do.
13 Q. I would ask you if you would turn to Page 3 of your
14 report, beginning on about the first full paragraph, dates of
15 contact, administered, are you with me there, Dr. Johnson?
16 A. That's correct.
17 Q. Second, first -- first sentence, second sentence there,
18 he was generally cooperative with the evaluation. Although he
19 indicated his attorneys had instructed him not to discuss
20 detailed information about the events, nevertheless he spoke
21 openly and freely about his behavior around the time in
22 question. Is that a fair statement?
23 A. That's correct.
24 Q. And the next sentence, he is a generally reliable
25 historian, and that I take it based on what he told you, you had
606
1 some background information before you interviewed Mr. Barnette,
2 is that right?
3 A. Well, actually, no. I started interviewing Mr. Barnette
4 first, but then I did have a significant amount of background
5 information and the opportunity to speak to other people
6 throughout the evaluation period.
7 Q. And I take it that after you talked to him and then put
8 that up with the collateral information you got, you still came
9 to the conclusion he was a reliable historian, is that correct?
10 A. That is correct.
11 Q. Now, if you would go down to Page 3, again, near the
12 bottom, Mr. Barnette describes his early life in relatively
13 positive terms, some of what he viewed as excessive physical
14 discipline on the part of his father towards himself and some
15 excessive alcohol use by his mother. I take it that's what he
16 told you, is that correct?
17 A. That is correct.
18 Q. I'd ask you if you could to turn over to Page 5, second
19 full paragraph, detailed account of his alcohol use beginning at
20 age 12, describes drinking to the point of intoxication on that
21 occasion and was drinking on the day prior to the alleged
22 offenses. I take it he told you that, Dr. Johnson, is that
23 correct?
24 A. That is correct.
25 Q. The second -- third full paragraph, he claims that while
607
1 in high school, he became upset over a relationship and took an
2 overdose of some kind of over the counter medication, correct?
3 A. That's correct.
4 Q. And moving to Page 7 of the report, first full
5 paragraph, he describes that an uncle assisted him in trying to
6 get a job at a Saturn car dealership, describes that the job
7 fell through and left him, quote, in a funk, close, describes
8 himself as sinking to a, quote, below ground zero, close quote.
9 I take it that's what he told you, Dr. Johnson?
10 A. That's correct.
11 Q. And then the last paragraph on Page 7 describes that he
12 was surprised that no one came to arrest him, and he spent the
13 next several weeks at his mother's home feeling frightened,
14 depressed and brooding over the loss of the relationship. I
15 take it that's what he told you, correct?
16 A. Yes, that's a summary of what he told me, not actually a
17 quote.
18 Q. Not word for word?
19 A. That's correct.
20 Q. I take it the word for words are in your quotations?
21 A. That's correct.
22 Q. Page 8, Dr. Johnson, the second sentence of that
23 paragraph, Page 8, Mr. Barnette indicated his rate of
24 consumption of alcohol increased in the weeks prior to the
25 current alleged offenses. I take it that's a summary of what he
608
1 told you?
2 A. Yes.
3 Q. The next to last paragraph, Page 8, Mr. Barnette
4 indicates, quote, I just broke, I'd had enough, and he got
5 dressed and, quote, just split, close quote, leaving by the side
6 door with his gun. Quote, I felt evil come over me, I had never
7 been that angry, and states his anger scared him. Again, in
8 quotes would be his words exactly?
9 A. That's correct.
10 Q. And then the next sentence, in his own assessment, had
11 he not been drinking, the thought of heading to Roanoke crossed
12 his mind, he may not have done it, he left the house because,
13 quote, he wanted answers, close quote, correct?
14 A. That's correct.
15 Q. I would ask you to go to Page 9, Dr. Johnson.
16 A. Uh-huh.
17 Q. First full paragraph, Mr. Barnette shared a little about
18 the first victim, Donald Lee Allen. Periodically he indicated
19 that he could empathize with Mr. Allen's family and there was
20 nothing he could say or do which would have ameliorated their
21 loss, correct?
22 A. That is correct.
23 Q. And the second paragraph from the bottom, Page 9, third,
24 fourth sentence from the bottom, his mother apprised him that
25 the law enforcement authorities were looking for him, he told
609
1 her to go ahead and call them, he indicated he was allowed a few
2 hours to spend with his family and did not resist arrest when
3 authorities arrived, he was subsequently taken into custody, is
4 that correct?
5 A. That is his account, yes.
6 Q. And that's based on -- you got some collateral
7 information about that information?
8 A. That is correct.
9 Q. Paragraph -- Page 10, I'm sorry, Dr. Johnson, top of the
10 page, Mr. Barnette describes coming to grips with what he had
11 done shortly after the crime was committed, fully intended to
12 kill himself because he believed his life was over, he also
13 describes feeling overwhelmed with the magnitude of his
14 behavior. I take it that's what he told you there, too?
15 A. Yes.
16 Q. Page 10, second paragraph from the bottom, which again
17 is what you told me about earlier, I believe, he was admitted to
18 the seclusion, slash, admission unit which is routine procedure
19 for new admissions. He was kept in that unit until it was
20 determined that he was suitable to function in the open health
21 services population, is that correct?
22 A. Yes.
23 Q. And I take it he was discharged on December 19th back to
24 Charlotte?
25 A. Yes, he was taken into the marshal's' custody and
610
1 returned here.
2 Q. Page 11, the last sentence on the first paragraph, he
3 received no disciplinary actions or incident reports during the
4 evaluation period, the next paragraph, he reported promptly to
5 appointments, was cooperative with interviewing and
6 psychological testing, is that correct?
7 A. Yes.
8 Q. Page 11 at the very bottom, the first sentence of the
9 last paragraph, in discussing with Mr. Barnette his mental state
10 around the time of the alleged offenses, he disclaimed the
11 presence of any mental illness. Is that what he told you?
12 A. Yes.
13 Q. And the last sentence of Page 12, he was able to express
14 remorse for his behavior and to express sympathy for the
15 victim's family, is that correct?
16 A. Yes.
17 Q. And Dr. Johnson, at our request I think you sent a
18 letter to the Court about Mr. Barnette's behavior there.
19 MR. LAUGHRUN: May I approach, Your Honor?
20 THE COURT: Yes.
21 BY MR. LAUGHRUN:
22 Q. Defendant's Exhibit 56, I would ask you, Dr. Johnson, if
23 that's the letter you sent to His Honor back in January of this
24 year?
25 A. Yes, it is.
611
1 Q. And it says again what you told me earlier, that he
2 remained in the unit until moved, that he was no incident
3 reports, infractions or writeups, is that correct?
4 A. That's correct.
5 MR. LAUGHRUN: Thank you, Dr. Johnson. Thank you, Judge
6 Potter.
7 THE COURT: Cross?
8 CROSS-EXAMINATION
9 BY MR. CONRAD:
10 Q. Dr. Johnson, my name is Bob Conrad. What was the dates
11 that you had the defendant under observation at Butner?
12 A. He was admitted on, let me check here, he was admitted
13 on the 17th of November and he left on the 19th of December,
14 1997.
15 Q. So basically about a month previous?
16 A. That's correct.
17 Q. And he was aware at that time or indicated to you at the
18 time that he was aware of his jury trial was coming up in
19 January?
20 A. That is correct.
21 Q. And he was able to conform his actions to the rules at
22 Butner during this time period as the jury trial was coming up
23 in a month?
24 A. That is correct. He was able to conform his actions
25 during the time period he was there for evaluation, yes.
612
1 Q. On Page 5 at the bottom of the page, he indicated to you
2 that he was injured in an event where a distant cousin shot him
3 in his home, do you recall him telling you about that?
4 A. Yes.
5 Q. Did he tell you that he had previously fired a weapon in
6 his distant cousin's home, did he tell you that?
7 A. I don't recall whether he told me that, I could go back
8 to look through my material, but I don't remember that history.
9 Q. Okay. Now, on Page 9, the first full paragraph of your
10 report, he did indicate that before he encountered Donald Lee
11 Allen, his rage could have been directed at anybody, did he tell
12 you that?
13 A. That is correct.
14 Q. He did not know the victim and his encounter with him
15 was one of chance and part of his larger intention of finding
16 transportation to Roanoke, did he say that?
17 A. That's correct.
18 Q. When he was talking about killing Robin Williams, did he
19 indicate to you that she looked into his eyes and stated, you
20 are not going to kill me, and grabbed at his gun?
21 A. That is correct.
22 Q. Did any of your collateral information that you received
23 indicate that she ever said that or grabbed at his gun?
24 A. I didn't have a source of information to observe that to
25 provide the information, so that is the only account of that
613
1 that I have.
2 Q. And so when you offered an opinion that he was a
3 generally reliable historian, there were many points in his
4 history of -- well, strike that.
5 When he is talking to you about his history, there are
6 many points where you don't have collateral information to
7 assess the reliability of that, is that a fair statement?
8 A. There is certainly information in his history that he is
9 the only source to provide, but generally across the history
10 that was verifiable, he was consistent in his account.
11 Q. And that is history primarily of his background?
12 A. Well, it's both a history of his background and a
13 history of his criminal behavior.
14 Q. Did he ever mention to you anything involving holding a
15 knife to the throat of a woman?
16 A. I believe I -- I believe I read about that incident in
17 some of the collateral information and we talked about the
18 relationship in which it was involved, if I am correct on that.
19 Q. He told you about several things involving a woman named
20 Alesha Chambers, did he not?
21 A. That is correct.
22 Q. And he indicated to you that one charge was pled down to
23 a felonious restraint?
24 A. That's correct.
25 Q. Do you now know that that was actually a jury trial?
614
1 A. I believe that I did know that it was a trial, yes.
2 Q. And in talking to you about that event, did he tell you
3 that three days later he had held a knife to that person's
4 throat?
5 A. I don't believe he recounted that in that proximity, not
6 to my recollection.
7 MR. CONRAD: That's all I have, Your Honor.
8 MR. LAUGHRUN: No further questions.
9 THE COURT: Thank you, Doctor, sorry you had such bad
10 weather to come over here in.
11 THE WITNESS: Thank you.
12 THE COURT: Call your next witness.
13 MR. LAUGHRUN: Your Honor, we would call Nadine Wilson.
14 NADINE RENEE WILSON,
15 being first duly sworn, was examined and testified as follows:
16 DIRECT EXAMINATION
17 BY MR. LAUGHRUN:
18 Q. Ma'am, would you state your name for the jury, please?
19 A. Nadine Renee Wilson.
20 Q. Ms. Wilson, by whom are you employed, where do you work?
21 A. I work at FCI Butner.
22 Q. FCI is a federal correctional institute at Butner, North
23 Carolina, is that correct?
24 A. Yes, it is.
25 Q. You currently work in what is called the Duke unit?
615
1 A. Its Maryland unit, all of them. It's the mental health
2 division.
3 Q. And for the jury's benefit, the sections at Butner are
4 divided into names of ACC schools, is that right, there's
5 Maryland, Clemson, Carolina, State, Wake Forest?
6 A. Yes.
7 Q. Georgia Tech?
8 A. Yes, Georgia Tech, yes.
9 Q. And that's just the name of the particular unit you work
10 in, is that correct?
11 A. Right.
12 Q. Now, what are your duties there, Ms. Wilson?
13 A. As a nurse, I'm a registered nurse, and I administer
14 medication, I assess patients and give them instructions on how
15 to get the medical care at the institution and who to see if
16 they need medical help or whatnot.
17 Q. How long have you worked at FCI Butner?
18 A. How long have I worked there?
19 Q. Yes, ma'am.
20 A. Ten months.
21 Q. Back in the fall of this year, particularly in November
22 and December of '97, did you have an occasion to meet the
23 defendant, Aquilia Marcivicci Barnette?
24 A. Yes, I did.
25 Q. What was your relation -- how did you meet him?
616
1 A. When he came in, I had to do what they call intake
2 screening. That's when we question the inmate and find out all
3 the information that we need, medical information, next of kin,
4 last job, home information and all that kind of stuff, and let
5 them know the tests that we run, the blood test and all things
6 like that.
7 Q. Was he cooperative with you?
8 A. Yes, he was.
9 Q. Give you any problems while he was there?
10 A. None whatsoever.
11 Q. Did you talk to him on a regular basis?
12 A. Yes.
13 Q. What are some of the things the two of you in general
14 would talk about?
15 A. Just how, you know, how he was feeling about being at
16 Butner, did he know why he was there, did he -- what special
17 needs he might have needed, to talk to someone, medication, how
18 he felt about it. We always ask if people are suicidal or not,
19 if they are hopeless or helpless and questions of that nature to
20 find out where their mind is at when they come in so we'll know
21 what their needs are as far as being watched or celled alone or
22 medicated or whatnot.
23 Q. What did you find out from talking to him?
24 A. When I talked with him, he was pretty upset, but he was
25 calm at the same time. He answered the questions that were
617
1 relevant, and he wasn't suicidal. He felt -- he wasn't hopeless
2 or helpless, he was more concerned about his family actually
3 than himself, you know. He wasn't going to do any harm to
4 anybody or himself. He didn't need medication, you know, he
5 knew he was there for a study.
6 Q. And was he cooperative with the staff?
7 A. As far as I know, no trouble at all.
8 Q. Any disciplinary problems that you're aware of or
9 writeups, infractions?
10 A. No writeups, no what they call incident reports, nothing
11 like that.
12 Q. Okay. An incident report would be something that,
13 whether it's a crime or not, it's some misbehavior took place in
14 the institution and an incident report would be generated and
15 put what is called a jacket, is that correct?
16 A. A jack?
17 Q. A jacket or his case file?
18 A. Yeah, it goes on -- yeah. An incident report, yes, is
19 against the institution rules and regulations, like being in the
20 wrong place at the wrong time or not following an order or
21 something like that, and he didn't get any that I know of while
22 he was there.
23 MR. LAUGHRUN: Thank you, Ms. Wilson. That's all, Your
24 Honor.
25 THE COURT: Cross?
618
1 MR. WALKER: No questions, Judge.
2 THE COURT: Thank you, ma'am, come down. Call your next
3 witness.
4 MR. LAUGHRUN: May we approach the bench?
5 THE COURT: Yes, sir.
6 (Bench conference not recorded.)
7 THE COURT: Members of the jury, we are going to give
8 you an early lunch period and ask you to come back, you're going
9 to have a little bit more time than you need on a day like this,
10 I wish the sun were shining for you, say 2:00 o'clock this
11 afternoon, please. Do not discuss the case among yourselves or
12 with anyone outside the courtroom. We'll see you at 2:00
13 o'clock.
14 (The jury left the courtroom.)
15 THE COURT: All right, Mr. Laughrun, you had something
16 this morning that you wanted to put on the record and I asked
17 you to wait until we had a break. You can do that now.
18 MR. LAUGHRUN: Judge, a couple things, I guess if I
19 could do it backwards. We had wanted to ask Dr. Sally Johnson
20 about her -- some of her diagnosis about Mr. Barnette when he
21 was up there. She has informed me and Mr. Conrad that she feels
22 an ethical dilemma about that. I fully respect that. I think
23 she is, as Your Honor knows and for the record, she's the one
24 that was asked to examine Mr. Kaczinski out in Sacramento,
25 California, just got back from doing that. So I think she is
619
1 eminently qualified in this area and respect that. We were
2 going to ask her about that. We did not, due to Mr. Conrad's
3 objection about that. I guess for the record we would like to
4 offer her report sealed for appellate purposes if it gets that
5 way so that the Court of Appeals or whoever could look at it. I
6 believe the government made an objection at the bench to us
7 going into that, is that a fair statement, Bob?
8 MR. CONRAD: (Nods head.)
9 MR. LAUGHRUN: We wanted to ask about that but did not
10 based on our discussion. We would have asked for her to testify
11 to her diagnosis in this report, if Your Honor please.
12 THE COURT: The Clerk will place that under seal.
13 MR. LAUGHRUN: I'm going to mark it for the record as 58
14 for us, Judge.
15 THE COURT: Anything else?
16 MR. CONRAD: Your Honor, if I could for the record
17 indicate that at a side-bar, I voiced an objection on the basis
18 that this court ordered the Butner examination for the purpose
19 of determining competency and insanity at the time of the
20 offense. Dr. Johnson indicated to me and I believe she later
21 indicated to Mr. Laughrun that she feels ethics don't permit her
22 to testify at a sentencing hearing when she's been given a
23 limited order by the Court to determine competency and
24 reliability at the time of the offense. I then asked
25 Mr. Laughrun what he was going to go into, and he showed me a
620
1 list of things that dealt with not the diagnosis for purposes of
2 competence and reliability, but factual things that occurred at
3 the institution and I indicated that I had no objection to that
4 line of inquiry.
5 THE COURT: Thank you, sir. Was there something else,
6 though, Mr. Laughrun, you wanted to put on the record this
7 morning?
8 MR. LAUGHRUN: Judge, there was about Ms. Cooper.
9 Yesterday when Mr. Williams asked Ms. Cooper what effect, and
10 you can correct me if I'm wrong, what effect did your mother's
11 death have on you and the family, and the answer was going to be
12 a proffer that would be she was going to seek or had sought
13 treatment, had a nervous breakdown, was hospitalized and sought
14 continuing counseling, et cetera. We were going to offer that.
15 Your Honor sustained an objection to that, and that was all that
16 was discussed at the bench conference.
17 THE COURT: Anything else?
18 MR. CONRAD: Your Honor, if I could clarify the record
19 on that question, I asked Mr. Huseby earlier on today to pull up
20 that question and the objection, and what the question was, and
21 Mr. Huseby, do you have it available right now?
22 THE COURT REPORTER: It will only take a second to get
23 it.
24 MR. CONRAD: Your Honor, could I ask Mr. Huseby to read
25 the question and the objection and the Court's ruling?
621
1 THE COURT REPORTER: The questions were, how are you
2 related to Sonia Cooper? I'm her sister, younger sister. And
3 Mark is? Answer, my nephew. Question, your nephew. Did the --
4 was the death of Pearl Cooper, did that have more effect on you
5 than any of the other sisters? There was an objection, and the
6 Court sustained the objection.
7 MR. CONRAD: Just for the record.
8 THE COURT: All right, thank you, sir. Anything else?
9 MR. WILLIAMS: Well, we would like the record to
10 reflect, Your Honor, that we would have intended to go further
11 and ask her about that incident, that is, the death of her
12 father. We would have asked to go into it, that she actually
13 saw her mother's body and the effect it had on her, that she had
14 a nervous breakdown, she was in therapy, and we would have asked
15 to go into that. She is present in the courtroom at this time,
16 but we would have intended to go into that and proffered that as
17 part of the family's life and experience with regard to violence
18 in the family. So that's what we would have intended, that's
19 the proffer for the record. I assume the government still
20 objects.
21 THE COURT: All right, sir, anything else from your
22 side?
23 MR. CONRAD: No, sir.
24 THE COURT: Anything else at all right now?
25 MR. LAUGHRUN: No, sir.
622
1 THE COURT: You're going to go through that time line, I
2 assume, during lunch period so we will be ready either to put it
3 in or not. Do we need to come back in a few minutes before 2:00
4 o'clock to talk about it?
5 MR. LAUGHRUN: That's fine.
6 THE COURT: We do? I say, do we need to come in a few
7 minutes before 2:00 o'clock to talk about it?
8 MR. CONRAD: That would probably be a good idea, 1:50.
9 MR. WILLIAMS: 1:45, I would recommend to the Court.
10 THE COURT: 1:45, okay, we'll see you at 1:45.
11 (Lunch recess.)
12 THE COURT: Okay, gentlemen.
13 MR. LAUGHRUN: Judge, thank you for the break. We have
14 met. Mr. Conrad and I briefly spoke. I don't think they have
15 any objection to the time line being offered. What we are going
16 to do is put a witness up for that, identify what was involved
17 with it tomorrow Mark because we have got our experts here today
18 and don't want to delay.
19 MR. WILLIAMS: Two of them.
20 MR. LAUGHRUN: Two of our experts are here. We also,
21 Judge, have provided to Mr. Conrad today after some discussion
22 yesterday, one of our witnesses wasn't coming in until tonight.
23 He came in today at noon and delivered the government documents,
24 articles that he relied on that are about 2 inches tall, and
25 they have got that information. Mr. Conrad wanted it, som