STIDHAM: Your Honor, may counsel approach the bench?
THE COURT: Alright.
(Bench Conference)
STIDHAM: Your Honor, I know we talked about this yesterday, and we didn't make a record. But the hearing in Marion, I believe it's in the transcript about our proffer with regard to Mr. Holmes that we would like to again for the record --
THE COURT: Alright whatver is in the record you've already proffered, and I don't frankly don't remember what it was I didn't let him testify to and at this point, but I mean, whatever the record reflects it will reflect.
CROW: We proffered the testimony from Marion.
THE COURT: Yeah, but he did testify too, so I can't remember specifically what details were --
STIDHAM: It was with regard to the results of the --
THE COURT: Oh yeah, ok, well you've already made a record on that.
FOGLEMAN: Your Honor --
STIDHAM: I just want to make sure.
THE COURT: I do remember that.
FOGLEMAN: Your Honor, just for the record, the State -- he was the last witness to testify -- was he the last witness that testified?
CROW: Yes.
THE COURT: I believe he was.
FOGLEMAN: We would move to strike his testimony. He was put on as a police interrogation expert on the theories of coerced confessions. He said the police did everything he would have done.
THE COURT: Well I think you can point that out in argument. I'm gonna let it stand, you all can argue that.
(Return to Open Court)
THE COURT: Alright call your next witness.
CROW: Call Dr. William Wilkins.
(Pause)
(mumbling)
(Bench Conference)
DAVIS: We previously objected to the other defense teams to be allowed to be inside the rail up here during the course of the testimony, but we certainly object to Mr. Lax and the lady in black being there with him sitting up here. They have absolutely no business being inside the rail.
CROW: We have no objection to that.
THE COURT: Alright, well, have Val tell them that --
COURT REPORTER: (Inaudible)
THE COURT: That's alright, that'll do -- I hate to keep advertising Coca Cola. (Laughing)
(Return to Open Court)
THE COURT: I’ve previously sworn the witness?
CROW: I believe that’s correct, your Honor.
THE COURT: All right.
CROW: Would you state your name sir?
WILKINS: William E. Wilkins
CROW: What is your occupation?
WILKINS: I’m a psychologist.
CROW: Where is your practice primarily located?
WILKINS: In Jonesboro, Arkansas.
CROW: OK. What is your educational background?
WILKINS: I have a bachelors degree in psychology from State University of New York, a master’s degree in research methods from Bucknell University and a PHD in Psychology from Cornell University.
CROW: Did you do any internships?
WILKINS: I did one in psychology in 1977 to 1979, and another one in neuropsychology in 1986.
CROW: Can you give me a public history of your professional practice?
WILKINS: At the present time I’ve been in private practice in Jonesboro since 1989. Prior to that time I was Director of Clinical Services at George Jackson Mental Health Center--
CROW: If I could interrupt you for a second there, while you were at George W. Jackson, did you do any forensic testing for the state of Arkansas?
WILKINS: Yes I did.
CROW: OK. Did you do any foren-- what kind of case was that involved in?
WILKINS: I remember one, it was a competency of three young adolescents who had been accused of murder.
CROW: Was that in (unintelligible) County?
WILKINS: No, that was in Craighead County.
CROW: Oh, Craighead County? OK. That was a murder case?
WILKINS: Yes.
CROW: Go ahead, I didn’t mean to interrupt you.
WILKINS: OK, I’m sorry. Prior to my being at George W. Jackson, while I was at George W. Jackson I basically did a small “practice” practice. Mostly I was involved in supervision of the staff, of approximately thirty psychological examiners, interns. So my primary job at that point was supervising psychological examiners and interns plus I saw a few people, but not very many. Prior to that time I was Director of Mental Health Services for the Lion (?) County Mental Health Service in Lion (?) County, Nevada. Again, some administrative work, but in the large measure a wide range of patients ranging from child abuse cases to schizophrenics to chronic long term and so on. Prior to that time I was Head of Psychological Services for the Nevada Youth Training Center. That is the in quote Reform School for boys for the state of Arkansas. I’m sorry, for the state of Nevada. In that position I did therapy with the young men, I put together psychological profiles for the purpose of parole and probation, I was a permanent member of the Parole Board, I did a review of treatment planning and all sorts of things. Prior to that time I was Director of Mental Health Services for the Phoenix Area Indian Health Service stationed in Owyhee, Nevada. That was a program to establish and develop mental health services for several tribes in the eastern half of Nevada and parts of Idaho and parts of Utah. Prior to that time I was Coordinator of the Ashley County Mental Health Center in Crossett, Arkansas. There I coordinated and supervised a multi-disciplinary staff of social workers, psychologists, substance abuse counselors, mental personnel and was involved in a wide variety of administrative as well as deputy processes. Prior to that time I was associated with Psychological Associates in (unintelligible) Missouri, doing a full case load of private practice. Prior to that time I was an Associate Professor at the University of Houston in Clear Lake, Texas. Clear Lake City, Texas, I’m sorry. There I was responsible for teaching a wide variety of courses in human development, psychology, ethics, child development, abnormal psychology. I also shared the department for two years of approximately thirty people. I also supervised the doctoral dissertations and the masters dissertations. Prior to that time I was Assistant Professor at State University of New York at Brockport. At one time sharing one of the sub-divisions of approximately fifteen people. I taught graduate and under graduate courses in measurement theory, human development, those sorts of things. Prior to that time I was Principal Investigator for a large, US funded grant on self-fulfilling prophecies. Prior to that time I was Coordinator of the evaluation and development for the US Office of Education Project Center in Lockhaven, Pennsylvania.
CROW: Thank you, doctor. In the course of your practice over the last few years have you attended continuing education programs?
WILKINS: Yes I have.
CROW: OK, have some of those programs been in forensic psychology?
WILKINS: Yes they have.
CROW: Do you know how many of those were in forensic?
WILKINS: Uh, are you talking about continuing education?
CROW: OK. Have you previously been qualified to testify as an expert in courts of law?
WILKINS: Yes I have.
CROW: As a psychologist?
WILKINS: Yes I have.
CROW: OK. Including the area of forensic psychology?
WILKINS: Yes I have.
CROW: OK. Do you know the number of times you’ve been qualified?
WILKINS: Uh, I would guess probably somewhere between seventy-five and a hundred in Arizona, Nevada, Idaho, Missouri, Texas, Arkansas.
CROW: OK. Have you, in the course of your practice while in Jonesboro, have you testified for the prosecutor, Mr. Davis?
WILKINS: Yes I have.
CROW: What kind of cases were those?
WILKINS: One were in filing PINS petitions--
CROW: That’s with a juvenile?
WILKINS: Yes.
CROW: OK. What would your duties be?
WILKINS: If the juvenile probation office or the parents or some other agency or some other person were concerned with an adolescent or a child needing psychiatric services or in need of being supervision outside of the range of the parents, the process is that there is a court process for that where the Prosecuting Attorney‘s office, I gather, by law or I’m not sure how, but anyway they‘re the ones who present the argument for the PINS petition.
CROW: OK
WILKINS: I’ve also been appointed guardian ad lidum by the court for an abused, for abused children.
CROW: OK. How many forensic evaluations have you performed?
WILKINS: In the past, uh, fifteen years, probably four thousand.
CROW: OK
WILKINS: I also did some for the US Department of-- for the Secret Service as part of an assassination attempt on President Reagan.
CROW: OK. That was when you were in Nevada?
WILKINS: Yes.
CROW: OK. Here in Arkansas, have you worked with some police departments to help certify their officers?
WILKINS: Yes. In the state of Arkansas, as in most states, police officers are required to have a psychological evaluation before they can be certified as police officers. I do a number of those for a large number of towns in the area.
CROW: OK. Have you been published?
WILKINS: Yes I have.
CROW: OK. And are you currently licensed?
WILKINS: Yes I am.
CROW: Where are you licensed?
WILKINS: I’m currently licensed in Arkansas. I retired my licenses in Arizona and Missouri because I didn’t want to pay dues there too.
CROW: OK. Now, are you currently having some kind of difficulty or dispute with your licensing board here in Arkansas?
WILKINS: Yes I am.
CROW: You want to tell us a little about that?
WILKINS: Um, the process began in 1991. At that time I had taken a critically ill patient to the hospital in Memphis. Charter Lakeside Hospital. While the patient was there she called me and then her husband also contacted me later on, their adolescent son was having some psychological difficulties. The concern of the parents was, and those are in the legal depositions, the parents comments, so they’re well founded, the concern was, was that a psychologist by the name of Doctor (phonetic) Anise Kozzie was telling the patient she could not go home until she agreed to bring her son over there and they would grab him and put him on the unit. When I was informed of this I became quite concerned that we’re looking at the potential for holding people against their will and those kinds of issues. I contacted Doctor Kozzie about those issues--
DAVIS: Your Honor, at this time if I may interrupt, we could go into a litany about this, but as I understand it the first thing he has to do with this witness is qualify him as an expert. And as far as what this has to do, the specifics of this event and his explanation have to do at this point with this case or his qualifications as an expert, uh, I don’t know. It may come up and he may need to explain later but at this stage of the game it’s not relevant.
THE COURT: I’m gonna sustain the objection. That’s not to say that at some point in this process that he will not be permitted to make his explanation.
CROW: All right, your Honor--
THE COURT: That was a double negative.
CROW: I underst--
THE COURT: What I’m trying to say is that if it’s appropriate, he’ll be allowed to make any explanation necessary--
CROW: All right, your Honor. Any event, through the course of some hearings did you enter to some sort of stipulation?
WILKINS: Yes I did.
CROW: OK. Did you agree to not practice in the area of neuropsychology?
WILKINS: Yes I did.
CROW: OK. And you agreed to having a supervisor--
WILKINS: Yes I did.
CROW: For a period of six months?
WILKINS: Yes.
CROW: OK. And did you have any, was there any limitations placed on your ability to practice forensic psychology?
WILKINS: No there were not.
CROW: OK.
WILKINS: And in fact the supervision has not occurred because I’m still waiting after two and a half years to get the board to decide what I have to be supervised for and by whom. And we’ve been--
CROW: Currently there is not a supervisor appointed?
WILKINS: No. I have chosen two and it’s up to the board now to decide what they’re going to do with it, so, and like I said it‘s been two and a half years so I don‘t know what they are going to do with it.
CROW: Does anything in that stipulation affect your ability to do the type of evaluations you did on the defendant?
WILKINS: No.
CROW: OK. Your Honor, we present him as an expert.
DAVIS: Your Honor, we’d like to voir dire the witness.
THE COURT: All right.
DAVIS: Doctor, what is the board that you have to get approval from in order to practice the profession of psychology in Arkansas?
WILKINS: It’s called the Board of Examiners of Psychology, for Psychology, I don’t know which one, of or for.
DAVIS: OK. And in fact that board brought disciplinary action against you, did they not?
WILKINS: Yes they did.
DAVIS: OK. And a result of that disciplinary action that was brought against you, you’re under probationary status, is that not correct?
WILKINS: I’m not sure of that.
DAVIS: OK. Well, they have placed restrictions on your ability to operate as a psychologist, correct?
WILKINS: Yes.
DAVIS: In fact, they have basically limited your practice to the most basic evaluations, is that correct?
WILKINS: No. It is not correct.
DAVIS: OK. Well, you can’t deal at all with child sexual abuse cases, can you?
WILKINS: No.
DAVIS: And that is a result of that disciplinary action brought against you?
WILKINS: Yes.
DAVIS: OK. And because of that disciplinary action they restricted you in that area?
WILKINS: Yes.
DAVIS: OK. And also, you can’t do any neuro psychology, is that correct?
WILKINS: Right.
DAVIS: And what is the field of neuro psychology?
WILKINS: The field of neuro psychology is through psychological assessment procedures to assess brain damage.
DAVIS: OK.
WILKINS: As a result of head trauma, auto accident, whatever.
DAVIS: OK. And so if in evaluations you make comment regarding any sort of indication regarding brain damage or any results from any neuro evaluations, then that would be beyond the area or scope that you are allowed to practice in. Is that correct?
WILKINS: Yes.
DAVIS: OK. And you mentioned that you had done some examinations or testimony in PINS cases?
WILKINS: Yes.
DAVIS: Those are brought by the Department of Human Services, right?
WILKINS: I, they‘re brought by, I don’t know who they’re brought by, I guess so, I don’t know the details.
DAVIS: OK. And in those cases the Department of Human Services retains whoever it is that’s gonna examine the children, correct?
WILKINS: I don’t know how it happens.
DAVIS: OK. And in fact, in your hearings before the board you indicated that you only do forensic evaluations for the defense, correct?
WILKINS: I may well have said that. That’s the vast majority of what I do, yes.
DAVIS: Well, the truth of the matter is the forensic evaluations that you’ve done in the past four or five years have all been for the defense, correct?
WILKINS: Yes.
DAVIS: OK. And you in fact told that board when they were questioning you about it, “I don’t work for the prosecution, I work for the defense.”
WILKINS: I may well have, I don’t remember.
DAVIS: OK. Have you had any training, in state training, in the state of Arkansas, in the area of forensic evaluations?
WILKINS: What do you mean by in state? You mean whether the training was done in, whether the training was in the state?
DAVIS: Yes sir.
WILKINS: No, I have not. Maybe I have. Let me look and see. I’ve done some.
DAVIS: In the state?
WILKINS: Yes, in the state.
DAVIS: Training in state? When was that?
WILKINS: Uh, (flipping through pages) one in 1987, one in 1988, one in 1988, one in 1989, one in 1990, one in 1991, one in 1991, one in 1991, I’m sorry, I’m sorry.
DAVIS: Now are those, wait a minute are those training sessions that you taught? Or that--
WILKINS: Yes.
DAVIS: OK. But I mean training sessions that you’ve been to.
WILKINS: No.
DAVIS: OK.
WILKINS: No.
DAVIS: And there’s a big difference between being trained and presenting yourself as the one who’s doing the training, correct?
WILKINS: Yes.
DAVIS: OK. And in fact when you were before the board at your last disciplinary action the chair person of that board, Miss Griffin, asked you “Have you undergone any training for forensic evaluations conducted by the state?” And could you read your response to that?
WILKINS: “No, I have not”
DAVIS: What else did you say?
WILKINS: “I don’t do them for the prosecution, I only do them for the defense. I called last week to find out about it again, I called the board about seven times the past three years trying to find out how to take the course. I just found out last week, I called over there and they gave it, they may give it again in June and maybe again in January.”
DAVIS: OK. So what you told the chairperson was that you had been trying for three years to find out or to get scheduled for the course?
WILKINS: Yes.
DAVIS: On forensic psychology, correct?
WILKINS: Yes.
DAVIS: And as of the date that this statement was taken, you hadn’t been able to figure out how to get in the course?
WILKINS: No.
DAVIS: And in fact you told them you hadn’t had any training in the state of Arkansas, correct?
WILKINS: I, if that’s in there, then I said that.
DAVIS: Now, as part of this order of probation, was it also ordered that you receive a psychological evaluation yourself?
WILKINS: Yes it was.
DAVIS: OK. And who performed that psychological evaluation?
WILKINS: A Doctor Michael Hazelwood.
DAVIS: OK. And--
STIDHAM: Your Honor, May counsel approach the bench?
BENCH CONFERENCE, WHISPERED:
STIDHAM: Your Honor, we vehemently object to him cross examining the witness (unintelligible)
THE COURT: Wait a minute.
STIDHAM: Can I move some of this stuff out of the way, sir?
THE COURT: Yea.
STIDHAM: Your Honor, we vehemently object to the prosecution cross examining this witness on the basis of a mental evaluation on him, I don’t know what the date of it is, but that’s obviously improper to impeach him on that. Also, we would submit that it’s improper to impeach him (unintelligible) evidence. They’re trying to allege that he is not qualified because of prior bad acts, prior bad conduct?
THE COURT: No, I’m not gonna allow that, prior bad acts, prior conduct. He opened it up himself, in fact you were about to go into areas on your introductory comments that the Court said ‘I was not going to allow’ However, I also viewed channel eight TV last night where your witness was on TV telling the world about the things that I have restricted.
STIDHAM: Not the evaluation, your Honor.
THE COURT: Well, he talked all about this child and about the child being exposed and all that and I overruled that type of testimony. What I am going to allow the state to do, I don’t want you to go into any specific findings of this man, I am going to allow you to go into any area that would test or challenge his competency to act as a forensic psychologist and it will be limited to those areas. Competency, not specific findings in the letter that refer to some specific conduct of the witness.
STIDHAM: Your Honor, I’m gonna have to--
THE COURT: If that makes sense.
DAVIS: I think I’m gonna stay within bounds.
THE COURT: OK.
STIDHAM: Well, if he doesn’t I’m gonna have to move for a mistrial.
THE COURT: Well, you can move for a mistrial any time you want. I mean, I’ve made my ruling and that’s all I can do. I’m trying to limit it as best--
STIDHAM: (intelligible)
THE COURT: I understand that. I’m trying to limit the cross examination within the bounds of decency and fair play. On the other hand, they have a right to cross examine a witness that you put up as an expert as to his professional competency. And that’s what I’m gonna allow. OK?
RETURN TO OPEN COURT:
DAVIS: Doctor Wilkins, before I get into the psychological evaluation that was performed on you as a result of this probationary order, the…(whispering to self) lost my train of thought…It was also ordered that you be supervised, correct?
WILKINS: Yes.
DAVIS: And you aren’t supervised, are you?
WILKINS: No.
DAVIS: And you weren’t supervised when you did the evaluations in this case, correct?
WILKINS: As of this point, the board has not appointed a supervisor nor what I was supposed to be supervised for. As soon as they would do so, I’d be glad to do so.
DAVIS: OK. Now would you answer my question? You were not--
WILKINS: No I was not--
DAVIS: --supervised at the time that you did this evaluation?
WILKINS: No.
DAVIS: And that’s part of what the board that governor psychologists in the state of Arkansas required, that you be supervised in the practice of psychology, correct?
WILKINS: At some point, yes.
DAVIS: Now this evaluation by Doctor Hazelwood.
WILKINS: Yes.
DAVIS: OK, you’re familiar with that?
WILKINS: I saw it for the first time about six months ago.
DAVIS: OK. Some eleven page report?
WILKINS: Yes.
DAVIS: Regarding his findings?
WILKINS: Yes.
DAVIS: OK, and he did perform a psychological evaluation on you?
WILKINS: No.
DAVIS: OK. What did he perform on you?
WILKINS: I don’t know what it was, but it was not a psychological evaluation.
DAVIS: OK, well did you meet with him?
WILKINS: Yes I did.
DAVIS: OK. How long?
WILKINS: Approximately five hours.
DAVIS: OK. And as a result he made an eleven page report, correct?
WILKINS: Yes.
DAVIS: OK. Is the Weschsler Memory Scale, is that something that you use just in neuro psychology?
WILKINS: No it’s not.
DAVIS: OK. You use that in forensic psychology, don’t you?
WILKINS: Sometimes.
DAVIS: OK. And in fact you used it in this case, didn’t you?
WILKINS: Yes I did.
DAVIS: OK.
WILKINS: Yes I did. I used parts of it.
DAVIS: OK. The MMPI, is that something you just use in neuro psychology?
WILKINS: No it‘s not.
DAVIS: OK. You use that in forensic evaluations, don’t you?
WILKINS: Yes.
DAVIS: OK. And did you use that in this case?
WILKINS: Yes.
DAVIS: OK. And do you recall the concerns that were expressed by Doctor Hazelwood? Are you familiar with page eleven?
WILKINS: Yes.
DAVIS: Of his letter?
WILKINS: Yes.
DAVIS: OK. And did he not in there outline and express concerns by your lack of knowledge of the MMPI and the sub-test contained therein?
WILKINS: Yes.
DAVIS: OK. In fact, what does he say about that? Would you read that for us Doct--
WILKINS: Which place? You have nine places marked.
STIDHAM: Your Honor, may counsel approach the bench?
THE COURT: All right.
BENCH CONFERENCE, WHISPERED:
STIDHAM: Your Honor, again he’s doing exactly what you told him not to do, and that is impeach him with this document. I’m gonna ask for a mistrial.
THE COURT: I didn’t say he couldn’t impeach him with this document. I said that he could go into the areas that dealt on professional competency. And so far as I can tell, that’s what he’s doing. Now, specific incidents of bad conduct on the part of this person, I have said that you can not go into those. In fact, Mr. CROW opened it up until the state objected. But I am gonna allow him to cross examine him with regard to his professional competency.
STIDHAM: Thank you, your Honor.
THE COURT: And I feel real comfortable on this. He’d signed a consent order permitting this. Go ahead.
STIDHAM: Thank you, your Honor.
RETURN TO OPEN COURT:
DAVIS: Now Doctor, just to clarify, this examination or psychological evaluation of you, or, pardon me, examination was conducted pursuant to that order entered by your governing board, correct?
WILKINS: Yes.
DAVIS: And that order was entered with your consent, correct?
WILKINS: Yes.
DAVIS: In fact, you signed and agreed to all this?
WILKINS: Yes.
DAVIS: OK. And Doctor Hazelwood indicated in his letters that he found some fundamental deficits in your knowledge in certain areas, correct?
WILKINS: If that’s what’s in there, yes.
DAVIS: OK. And he put for example, “Inability to provide the sub-test of the Wechsler Memory Scale, a test he reportedly utilizes”. Is that correct?
WILKINS: Is it correct that he said that?
DAVIS: Yes sir.
WILKINS: Yes, it’s correct he said that, if it’s in there.
DAVIS: OK. And he also indicated that you misnamed, one of the areas of concern was that you misnamed MMPI clinical scales, “An inability to spontaneously recite the clinical scales of the MMPI“. Correct?
WILKINS: If he says that.
DAVIS: OK. And you’ve reviewed this letter, correct?
WILKINS: Yes. And that part is not true, but that’s all right.
DAVIS: And in addition to that he said there was “demonstrated failure to follow standardized procedures in the administration of the Finger Oscillation Test”.
WILKINS: Yes.
DAVIS: And “Failure to conduct comprehensive examinations of clients“. Correct?
WILKINS: I don’t remember that one, but if it’s in there then he said it then that’s fine.
DAVIS: And did he also say that there was a “Failure to appreciate the limitations of your professional competence”?
WILKINS: I think he said that.
DAVIS: Now you used in your evaluation in this case, you used the Wechsler and the MMPI, correct?
WILKINS: Yes I did.
DAVIS: Now of the test you used on Mr. Misskelley, how many of those tests were objective in nature?
WILKINS: Uh, I’d have to look and see, I (unintelligible)--
DAVIS: Let me ask you this, is the House Tree Person, is that a subjective or objective?
WILKINS: It’s a projective technique. Subjective.
DAVIS: Subjective?
WILKINS: Yes.
DAVIS: And when you say subjective, that means that the tester’s viewpoints and orientation is included in the tester’s opinion?
WILKINS: No, I mean by that that there is a manual that describes what certain issues, what certain signs, what certain things mean.
DAVIS: Are you saying that in subjective tests that the viewpoints and the frame of mind and the perspective of the person giving the examination does not enter into the results drawn from that examination?
WILKINS: It’s not supposed to.
DAVIS: But in any subjective test that happens?
WILKINS: It probably does.
DAVIS: And how many of these tests that were provided on him were subjective?
WILKINS: Again, I don’t know without looking.
DAVIS: Well, the House Tree Person is, right?
WILKINS: Yes.
DAVIS: Bicycle Test?
WILKINS: Uh, no. Maybe half, OK? It has, it again has a scoring manual that goes with it.
DAVIS: The Clock Test?
WILKINS: That again has a scoring manual that goes with it.
DAVIS: But I mean it’s still subjective in how you evaluate it, correct?
WILKINS: There can be a subjective element.
DAVIS: OK. Well, you would agree that in any subjective test, your perceptions, your viewpoints, your mental make up contributes to the results you derive or determine from that test?
WILKINS: Yes.
DAVIS: When you do an evaluation for forensic, a forensic evaluation for a criminal defendant, what is it you’re trying to determine?
WILKINS: In the very simplest form of forensic psychology, you deal with competency to stand trial.
DAVIS: So, once you get beyond the issues of competency to stand trial, you’re getting into a more complex area of forensic evaluation?
WILKINS: Yes.
DAVIS: OK. And has there been question by the board as to whether or not you’re qualified to practice in a complex area of forensic pathology, I mean forensic psychology?
WILKINS: No.
DAVIS: Do you have, have you filed a letter of intent with the board regarding that particular area of practice?
WILKINS: Yes.
DAVIS: When was that?
WILKINS: Last week (intelligible).
DAVIS: When?
WILKINS: Last week sometime. You are permitted to update your letter of intent.
DAVIS: So, as of last week you filed a letter of intent regarding that area of practice?
WILKINS: Yes. When I first came here in 1987 there was no area in that area in the state of Arkansas. So I, at that time it was not included on my original statement of intent.
DAVIS: But in order to practice in a certain area you are supposed to file a letter of intent, right?
WILKINS: When there’s an area, yes.
DAVIS: Well, I assume since you put yourself out to be a forensic psychologist that’s an area, correct?
WILKINS: Yes.
DAVIS: OK. And it wasn’t till last week that you even filed your letter of intent with the Board of Psychology?
WILKINS: Yes.
DAVIS: No further questions, your Honor. Wait, one last question. When you file a letter of intent, say if I’m, if I’m gonna practice psychology and I want to practice forensic psychology, I don’t just send a letter to the board and that qualifies me, does it?
WILKINS: No. It’s like for example in my original intent I filed one that I was gonna practice neuro psychology and they certified that when I first came here and decided later on that they were not going to do that, on what grounds I’m not sure of.
DAVIS: But there is a certification process--
WILKINS: There are no criteria anywhere in the state of Arkansas by the board or anywhere else which determines the criteria or qualifications of the practice of any part of psychology. None.
DAVIS: Then why did you file a letter of intent?
WILKINS: Because enough other, you mean recently? Or in the past?
DAVIS: Last week.
WILKINS: Last week because of some of the other cases I’m dealing with it became an issue.
DAVIS: Whether you’re qualified to practice in that area?
WILKINS: No. Whether or not I had taken the one day state course or not.
DAVIS: And you hadn’t taken that one day state course?
WILKINS: No. I have not.
DAVIS: And up until last week you hadn’t even filed a letter of intent?
WILKINS: No.
DAVIS: And yet you’ve been practicing it for, at least holding yourself out to practice it for how long?
WILKINS: Five years. Well, ten years, twelve years.
DAVIS: No further questions on voir dire, your Honor. We’ll have some later.
CROW: Doctor Wilkins, did the, did your board receive a copy of that evaluation that Mr. Davis was talking about?
WILKINS: Yes they did.
CROW: Do you know when?
WILKINS: Uh, they received it, I think it was done in June of 1992, is that the date on it?
CROW: OK, sometime in 1992?
WILKINS: Yea, and then I did not see it again, I never did see it until about a year and a half later. Despite repeated attempts by me and my attorneys to getting copies of it we never able to get copies of it. And my thought about it is that since the board let me practice for well over two years after that was completed they must not have been terribly concerned about what was in there.
CROW: Are you still, as of today, able to practice forensic psychology?
WILKINS: Yes I am.
CROW: Have you contacted the board as that issue?
WILKINS: Yes I have.
CROW: And while you can’t tell what they say, or, uh, was it your impression that you were still able to practice--
WILKINS: At this time--
DAVIS: Your Honor--
CROW: He can a--
DAVIS: Whether he asked them what they say or whether he can ask whether it’s his impression he’s asking for a hearsay response.
CROW: Your Honor, he can--
DAVIS: We’ll stipulate that he’s obviously still practicing. We just question whether he’s qualified to.
STIDHAM: Your Honor, may counsel approach the bench?
BENCH CONFERENCE
STIDHAM: (inintelligible) –have a discussion.
THE COURT: About what?
STIDHAM: How the state is trying to say he’s not qualified. If we’ve got a forensic evaluation—
THE COURT: I want to know, he knows about the cases he made reference to because he had failed to take the one-day test. Has he ever been denied the right to testify in court as a forensic psychologist?
STIDHAM: The Attorney General said he’s qualified.
THE COURT: Has he ever been denied that as a result of that?
STIDHAM: Your Honor, my concern is we got a competency of the defendant issue now cause—
THE COURT: It goes to—listen. All those things go to the weight of his testimony. Not, not, I mean the jury can sift through that.
CROW: Thank you, your Honor.
STIDHAM: Your Honor, but I don’t think the Court is seeing my point.
THE COURT: What is your point?
STIDHAM: My point is at a previous hearing, Dr. Wilkins was qualified as an expert. He testified about a forensic evaluation that he did and said the defendant was competent to stand trial and he was aware of the difference between right and wrong and was able to appreciate the difference. Is the state questioning that now? I mean, do I need to move for a continuance that uh—
THE COURT: Well, I don’t know
STIDHAM: I’m gonna have to retry this case based on the defendant’s competence. The—
THE COURT: I don’t think that’s even an issue
FOGLEMAN: We never questioned the defendant’s competency.
STIDHAM: Judge, they’re saying he’s not competent to—
THE COURT: They’re saying this man, they’re challenging his competency as an expert.
FOGLEMAN: Not your client’s competency.
STIDHAM: Well how can you do one without doing the other? That’s my concern.
FOGLEMAN: That’d be like saying if he had never been given a test then he’s automatically incompetent to stand trial.
THE COURT: Well, there’s a presumption of one’s sanity in the first place and I don’t know that that’s even been put in the issue. I’m gonna, what I’m gonna do is I’m gonna allow you to proceed—
CROW: Thank you, your Honor
THE COURT: And that simply goes to the weight of his testimony.
STIDHAM: This witness (unintelligible) called as and expert—
THE COURT: I’m not gonna make that statement. I never make that statement. You submit him and I tell you to proceed. If I make the statement then it gives extra credence to the person’s position, so my policy’s always been that you’ll never hear me say it.
STIDHAM: May I inquire as to the Court’s, does the Court have any concerns about the defendant’s fitness to proceed?
THE COURT: Quite frankly?
STIDHAM: Yes.
THE COURT: I’ve got some serious reservations based upon what I’ve seen and heard but that doesn’t mean I’m not gonna let him testify because apparently the state has certified—
STIDHAM/FOGLEMAN: (unintelligible)
FOGLEMAN: He’s talking about the defendant’s competency—
THE COURT: Oh, the defendant?
STIDHAM: Yes, your Honor.
THE COURT: NO. None at all. None whatsoever.
STIDHAM: Is the state raising that issue?
THE COURT: Not that I know of.
DAVIS: (unintelligible) as I understood it (unintelligible) basic evaluation (unintelligible) complex area (unintelligible).
THE COURT: In forensics. You’re questioning the witness, not the defendant.
STIDHAM: Your Honor, but -- I don't think -- can we retire to chambers --
THE COURT: I'm not going to waste anymore time going back to chambers, what is it? What is your issue? What are you trying to --
STIDHAM: See Judge, it's not the witness, it's the defendant.
THE COURT: Well I -- nobody's raised that, as far as I know.
STIDHAM: That's what they're doing right now.
THE COURT: Are you trying to tell me you don't think your witness -- uh, your defendant is competent to stand trial, is that what you're saying?
STIDHAM: No, I'm saying does the Court have any question about that?
THE COURT: No, I don't have any. None at all. As to the competency of the defendant, none. Zero.
STIDHAM: The Court's satisfied with that?
THE COURT: Sure.
STIDHAM: [TO DAVIS] Is the State satisified? To proceed? That he's competent to stand trial.
DAVIS: Oh. Yeah.
STIDHAM: [TURNS BACK TO BENCH] I just want to make sure, I mean those issues were kind of --
THE COURT: Well you're talking about two totally different things.
STIDHAM: But they were starting to intertwine, Your Honor, I wanted to --
THE COURT: No. OK, it's a matter of perception, I guess.
STIDHAM: Thank you, Your Honor.
CROW: Thank you, Your Honor. Now.
WILKINS: Uh, let me also note that I've had several psychological evaluations prior to that one by Dr. Hazelwood for various employment positions --
FOGLEMAN: Your Honor, I'm not, don't remember the question being asked. Dr. Wilkins just started talking. I object --
THE COURT: Doctor, please, let your responses be --
WILKINS: (INTERRUPTS) I --
CROW: Doctor, I'll, I'll ask you the question --
THE COURT: -- related to a question, that's --
WILKINS: I, I thought that we were in the middle of a question that Mr. Crow had just asked me before the ah, before the interruption.
CROW: Let me start again, please.
WILKINS: (NODS ASSENT)
CROW: Doctor, how -- I honestly don't remember what question I was asking, but I’ll go ahead and ask you this question—
WILKINS: I do.
THE COURT: Let’s just start all over, ok?
WILKINS: Ok.
CROW: Have you had previous psychological evaluations?
WILKINS: Yes I have.
CROW: OK. Um, any problems with those evaluations?
WILKINS: No.
CROW: All right—
WILKINS: Let me, I’m sorry. Go ahead.
CROW: Doctor, did you perform, no, let’s see. We already covered that. Are there currently any outstanding offers to you for change of employment?
WILKINS: Yes sir.
CROW: In the teaching area?
WILKINS: Yes.
CROW: Ok, what would you be teaching if you took those jobs?
WILKINS: Forensic psychology.
CROW: Forensic psychology? Your Honor, at this moment we would ask that Doctor Wilkins be qualified.
DAVIS: Your Honor, I’ve got one more question.
THE COURT: All right.
DAVIS: Do you plan to go ahead and take the course in the state of Arkansas to qualify you before you enter into that teaching field?
WILKINS: Uh, probably not because it’s not necessary in other states.
DAVIS: So it wouldn’t be in the state of Arkansas?
WILKINS: No.
THE COURT: All right, you may proceed.
CROW: Thank you, your Honor. Now, if we could get down to the business. Did you perform any IQ, what’s commonly known as IQ tests on the defendant?
WILKINS: Are we ready to--
CROW: Yes.
WILKINS: Ok, let me change things here.
CROW: All right.
WILKINS: Yes I did.
CROW: Ok, can you tell me a little bit about that, doctor?
WILKINS: I performed the standard one known as the Wechsler Adult Intelligence Scale-Revised. That is a fairly standard measure of intellectual ability. Do you want me to describe his results?
CROW: Yes, describe his results please.
WILKINS: Ok. The scale was designed with two broad sub-categories. One called verbal abilities and one called performance abilities. As the titles imply, verbal measures verbal ability, verbal reasoning, verbal thinking, verbal manipulation and things. Performance implies performance of physical manipulation of things, objects, ideas. On that scale, Jessie received a full scale IQ of 72 with a verbal IQ of 70, and performance IQ of 75.
CROW: What is considered average or normal?
WILKINS: Average is between 84 and 116.
CROW: Ok.
WILKINS: With the average average being 100. As the mean.
CROW: 100 is supposed to be the mean?
WILKINS: Yes, that’s the mean score.
CROW: All right. Did you do, could you describe some of the tests, I believe there was some—
WILKINS: I also did some, if we look at intelligence from a qualitative sense rather than from a quantitative sense and we begin to look at some other kinds of areas. By qualitative I mean in terms of the kind of thinking processes that go on. A lot of the work comes from the work of Jean Piaget before he died. A lot of it comes from the work of Doctor Jerome Bruner at Harvard. Piaget was in Switzerland. Basically, what we’re looking at is not just what you know, that is the factual information that you know, but how you deal with thinking about the world, understanding the world. Piaget’s primary concern was that at different ages we literally think about the world in different ways. And for him, then, intelligence at different ages means different things. So one of the things we did with Jessie was to look at some of those issues regarding his level of intellectual ability in a qualitative form. Those include things such as—shall I demonstrate for you?
CROW: Certainly. Please, doctor.
WILKINS: One of the things that you do is have the person take play dough (Wilkins preparing play dough) and put it into round balls and then you ask the child to agree finding that the two are equal sizes. And they may or may not agree, they may move one pinch back over to here but eventually they’ll decide that they’re equal. They’re the same size. Then you take one of the balls and flatten it down like this and ask them if they’re now equal. And they’ll say “No. This one has more in it.” And then if you do it this way and ask them “Which one has more in it?” They’ll say “This one.” That is that kids are not bothered by the fact that they were blatantly inconsistent. Little children think in terms of one dimension; that is they think about height rather than height, weight being the same. Little children think about things in terms of a single dimensional thing. We do other things, make them into hot dogs, keep changing the sizes and they keep agreeing that one is bigger, than the other one’s bigger, than the other one’s bigger, than the other one’s bigger, and they’re not bothered by that in any form whatsoever. The other thing that we do sometimes is like –
CROW: How did Mr. Misskelley respond?
WILKINS: Mr. Misskelley responded with the clay balls about what I would expect from a seven to eight year old child to do. That is, he tends to have real difficulty with what’s called the conservation of matter. That’s what that’s called. Another one is we take chips like this, (arranging chips) ask the child “Which one has more in it?” and they’ll say “This one.” So then you have them count it “One, two, three, four, five, six. One, two, three, four, five, six.” “Which one has more in it?” “This one.” If I move them together this way again and spread these out and ask the child “Which one has more in it?” They’ll say “This one.” Have them count it again “One, two, three, four, five, six.” That is, again, we’re looking at length, and the number six is meaningless in terms of any kind of a criteria. Another thing we can do is we move into the work of what is known as moral judgment, based mostly on the work of Lawrence Kohlberg. Kohlberg talks about making moral decisions in the same way that we make these kinds of decisions: size differences. For example, if I say to a child, as I did with Jessie, “Here is a child who is helping her father fill his fountain pen. He asked her to do that and she’s doing that for him. She accidentally spills the ink and makes a spot this big. There’s another child who is playing with the ink bottle when he’s not supposed to be and he spills it and makes a spot this big. Which child did the worse thing?” And the response in children and the response in Jessie is “This one, because the spot is bigger.” That is we deal with the size, with the consequence of the system, not any kind of notion of what the intent is. If I ask Jessie questions like “Suppose a man invented a cure for this particular type of cancer. This man’s wife has that kind of cancer. He goes to the druggist and tries to buy it and the druggist is charging two thousand dollars for it. The man sells everything he has, all he can get is fifteen hundred dollars. And he goes to the druggist and says ‘All I can get is fifteen hundred dollars. Can I buy a dose and pay you back the five hundred dollars at some point in time?’ and the pharmacist says ‘No’. So, then the man breaks into the pharmacy at night and steals a dose of medication and gives it to his wife.” Now the question is, “Did the man do a right or wrong thing?” Now, as we begin dealing with morality, legality, we can get some very strange kinds of things happening to us. That is, what’s legal, what’s moral, and how we decide those issues become strange. In Jessie’s case, as in most children’s cases, most concrete thinking cases, is that the man did an absolute wrong. And Jessie is unable to entertain any kind of possible explanation, the possible intentional issues, that for Jessie it is blind obedience to authority. “This is what the law is, this is what you do.” We did some other kinds of memory scale kinds of things, do we want to deal with those now or as a separate issue?
CROW: Basically, after all this testing, did you come to a conclusion, doctor, as to what the mental reasoning—
WILKINS: My conclusion was that Jessie reasons on the level of about a, between a six to eight year old. That is what is called a very concrete style of thinking. By concrete I mean is that is an inability to do abstracts, to envision the world in terms of things that I have had concrete experience with. So things are taken and dealt with very literally. Let me give you an example. Another example is that if you have a small child and you tell them, “Don’t eat any cookies before supper.” And you watch, and they go to the cookie jar and get cookies and eat them before supper. And you say to that child, “I told you not to get any cookies before supper.” And the kid says, “I didn’t do it.” And you’re baffled cause you saw them do it. If you question the child for awhile longer he’ll say to you, “I was hungry and got something to eat.” And for the child literally, literally, he did not get things when he should not have done so. He got something to eat because he was hungry. It is that very literal, absolute, direct definition of what the world is.
CROW: All right, doctor. Did you do any evaluations of Mr. Misskelley on his reading level?
WILKINS: Yes I did.
CROW: What were those results?
WILKINS: Uh, at the third grade level.
CROW: Ok, what about his writing level?
WILKINS: At about the point seven level, that means less than first grade.
CROW: Ok, what about his verbal comprehension?
WILKINS: Yes, Jessie has, one of the things we looked at was I read him a short story and asked him to give me details from that. Jessie was able to give one or two details out of a possible 12, 14, depending on the story: a very, very impaired ability to do those kinds of things. Jessie, basically, after a, after a seven or eight word sentence begins to lose what’s happening. For example, on the first page of the second confession that he did, he’s asked, “All right, you told me earlier it was around seven or eight. Which time was it?” Jessie responds, “It was seven or eight.” That is, he got the last half of the sentence.
CROW: Ok, doctor—
WILKINS: And the first half was gone.
CROW: Did you do any testing on Jessie as personality patterns, or personality traits?
WILKINS: Yes I did. I did the MMPI-2, a House-Tree-Person, and a Rorschach.
CROW: Ok, can you tell me some about your results?
WILKINS: The findings on the Rorschach were, uh, of no value. The Rorschach is a ten card pictures—I show you pictures and ask you to describe what you see here. The scoring is done, first of all a person has to give a response that is score able according to the manual. None of Jessie’s responses to the ten were score able, so, I just know—which is not necessarily unusual, particularly for someone who has moderate intellectual ability.
CROW: Ok.
WILKINS: The results on the MMPI found some moderate problems with being, uh, somewhat dependant, some anti-social characteristics, and some, what are called schizotypal characteristics. Basically, what we’re looking at in terms of Jessie, in terms of his basic personality structure, if we’re going to look in terms of a diagnostic category, is a young man who is pretty dependant upon others to make major decisions for him, who has some difficulty sometimes separating out fantasy from reality, and at times if put underneath a great deal of stress becomes almost unable to decide which is which. I also looked at, I guess it’s not in terms of other testing, but there’s some other information in terms of the interview data but we’ll let—
CROW: Ok, did you do a, some kind of suggestibility test?
WILKINS: Yes I did.
CROW: Can you tell me about that?
WILKINS: The—
DAVIS: Your Honor, at this point regarding the suggestibility test, my knowledge and I’ve looked at the literature, I’m not sure that there’s any scientific test that qualifies as such and before we get into an area of speculation that is not based on any scientific research or data or any reliable foundation, I don’t want to get that testimony in front of anybody (untelligible)—
CROW: Let me back up a little bit your Honor? I have a textbook you pulled out by, I’m gonna butcher this name, Gisli Gudjonsson?
WILKINS: Yes.
CROW: Ok.
DAVIS: Your Honor, we may need to have a hearing outside the presence of the Jury—
THE COURT: All right, it’s time for a recess anyway. All right ladies and gentlemen, with the usual admonition not to discuss the case, you may stand in recess, I hope, for about ten or fifteen minutes. We’ll just tell you when to come back in we’re going to stay here.
(JURY RECESSES)
IN CAMERA HEARING
THE COURT: All right, gentlemen. Let the record reflect that this is a hearing out of the presence of the Jury. All right—
CROW: Thank you, your Honor. May I proceed?
THE COURT: Yes.
CROW: Doctor, I have a textbook in front of me by, apparently written by an author by the name of Gisli Gudjonsson?
WILKINS: Yes.
CROW: Have you reviewed that textbook?
WILKINS: Yes I have.
CROW: Ok. What’s the nature of the textbook? What’s it about?
WILKINS: The textbook is titled “The Psychology of Interrogations, Confessions and Testimony”. Basically what Dr. Gudjonsson is doing is, as the title suggests, is looking at a wide variety of issues in the psychology of interrogations, confessions and testimony. This is in one place where he also reiterates some of the things he had done in the past on the suggestibility scale. As I recall in the past looking through the index, I think he lists fifty-six references to himself dealing with those issues.
CROW: Do you have any information about Mr. Gudjonsson?
WILKINS: He currently is, I think his title is, I don’t know what his title is. He’s at the Institute of Psychiatry in London. He does fairly well, worldwide recognized as a leading authority on false confessions and testimony and police interrogation techniques.
CROW: So it’s your testimony here today that Mr. Gudjonsson is a, Dr. Gudjonsson, excuse me, is a world recognized authority in this area?
WILKINS: Yes.
CROW: Ok, do you know anything about the Suggestibility Scale? Do you know who developed it?
WILKINS: Dr. Gudjonsson did.
CROW: Gudjonsson did?
WILKINS: Yes.
CROW: Do you know, has it been employed?
WILKINS: Yes.
CROW: Does it have a scientific basis?
WILKINS: Yes.
CROW: I think we’ve met the (unintelligible) showing, your Honor, that it’s based on scientific criteria—
DAVIS: I’ve got some questions. Is there a standardized Gisli Gudjonsson Suggestibility Scale?
WILKINS: Yes there is.
DAVIS: Is there a standardized test?
WILKINS: Yes.
DAVIS: Is that the test that you had performed on Jessie Misskelley?
WILKINS: Yes.
DAVIS: Ok. Do you have a copy of that test with you?
WILKINS: Yes I do.
DAVIS: Do you have the test results?
WILKINS: Yes I do.
DAVIS: Ok. What (unintelligible)—
WILKINS: Here’s a copy of the test. (pause) Oh, here’s, I’m sorry, here’s another one. What year is this? Yes, here’s another one.
DAVIS: What scientific or empirical data has been used to validate this test?
WILKINS: Uh, Dr. Gudjonsson has used it in a wide variety of circumstances, using, interpreting the differences with intelligence levels, self concept levels, predictability in a wide variety of cases.
DAVIS: How many American subjects and subjects in this country has he used in his evaluations?
CROW: I object, your Honor, I don’t see the relevance of whether it was—
DAVIS: It’s—
CROWE: Excuse me, may I finish my objection your Honor?
THE COURT: Go ahead.
CROW: I don’t see the relevance. If this was – the possible relevance, I guess, if this was done in some third world country or something where maybe the academic standards were low. But this is in Great Britain and also in Iceland. I think the standards are the same for educational excellence. I don’t see the relevance.
DAVIS: Your Honor—
THE COURT: Overruled. I can foresee some possible relevance so proceed.
WILKINS: I don’t know how many that Dr. Gudjonsson himself has done in this country.
DAVIS: Are you aware of any he’s done in this country?
WILKINS: None that he has done.
DAVIS: Ok. And the truth of the matter, that the data and empirical evidence that has been accumulated has been based on his tests of people in his native country and also in England, correct?
WILKINS: No, there are, there is tests they have developed. It’s been used in this country as well.
DAVIS: Well you’re using his scale—
WILKINS: Yes.
DAVIS: But you don’t have any evidence that that has ever been tested on people from the United States of America?
WILKINS: As I recall, Dr. Ofshe has done some of that.
DAVIS: The other expert in this case?
WILKINS: Yes.
DAVIS: Ok. In fact, in his book the primary reference that Mr. Gudjonsson makes as far as references to any experts, the person referred to most is himself correct?
WILKINS: No. Well, in terms of the—I don’t know whether that’s true. It’s in terms of the areas where he’s used the Suggestibility Scale. There are thousands of, hundreds of other references in there.
DAVIS: But how many times was it he refers to himself as far as basing the expertise of his book?
WILKINS: Fifty-six.
DAVIS: Ok and he refers to your other expert out here, the guy from Berkley, California how many times?
WILKINS: Three or four, I don’t know—
DAVIS: Ok.
WILKINS: Without looking.
DAVIS: And you know what the age groups were that this empirical evidence was gathered on? What age groups of the people that were studied?
WILKINS: From ages, uh, I think some of the older ones were ages twelve and thirteen through older adults.
DAVIS: Ok, this test here that we’re talking about, do you have any evidence or can you show us any reference where that that test was done on an age group including people as young as seventeen years old?
WILKINS: I’m sorry, I can’t.
DAVIS: Ok—
WILKINS: What happened to the book?
CROW: Get the book?
WILKINS: Yes. (pausing while looking through book). On page, uh, “Two studies investigating the suggestibility scores of boys between the ages of eleven and sixteen: the results of both studies indicate that youths are no more suggestible than adults unless their answers are subjected to negative feedback, then they become markedly more suggestible than adults”.
DAVIS: How many subjects were there in that test?
WILKINS: Thirty-one delinquent boys, twenty normal males. A second one with, uh, forty.
DAVIS: Ok, so we’re talking about empirical evidence based on ninety people?
WILKINS: At least, one study. Beyond that we can find more if you want to—
DAVIS: And those are ninety people that weren’t born, raised, socialized in a society such as ours?
WILKINS: I don’t know how many cross-cultural differences you want to find but obviously it was done in Great Britain, there are some differences.
DAVIS: Well, cross-cultural differences are a pretty important factor in determining whether your scientific research is valid or not, correct?
WILKINS: No, it should not be. The rationale of scientific inquiry is that it develops universal principals, universal concepts. It doesn’t make any difference whether the laws of physics apply in the United States is the same way they apply in Uganda. That the basic rationale of scientific undertaking, you’re developing universal principles.
DAVIS: So, under that theory I assume—
WILKINS: Now, there may well be individual differences within those theories, possibly, but that should not make—if we’re talking about scientific principles, it shouldn’t make any difference where it was done.
DAVIS: Well, if we’re using a standardized test and we’re using it on people who come from different cultures and background, it’s your testimony that it doesn’t matter what culture or background it is?
WILKINS: I’m saying—no, I’m not saying that. I’m saying that if we’re going to deal with the scientific basis, the basic premise of science is that we are trying to develop universal principles.
DAVIS: But that’s the question I asked. You don’t know if you developed a universal principle—
WILKINS: No.
DAVIS: —until you test it universally, do you?
WILKINS: Right.
DAVIS: Well, and the truth of the matter is the test in this particular instance had been done with one small segment of the population in another country, correct?
WILKINS: As far as I know.
THE COURT: Have you ever used this test before?
WILKINS: No I have not.
THE COURT: Can you relate to the Court any person in the field of forensic psychology in this state or any surrounding states or in this country that you know of that has utilized this test?
WILKINS: Dr. Ofshe from Berkley, Dr. Arnett from Hawaii—
FOGLEMAN: I think your question is forensic psychologist—
THE COURT: Forensic psychologists—
WILKINS: All right, then Dr. Arnett in Hawaii, Dr. Unger Reiger in Minnesota, Dr. Gamalt in Salt Lake City, Dr. Zimmerman in Louisiana, those come to my mind—
THE COURT: Are you telling the Court that this is a universally recognized phenomenon in the field of psychology that is reported to be reliable and is accepted in the field in general?
WILKINS: I’m saying that the area of suggestibility has been investigated in psychology for a long time in a wide variety of areas. This particular test, ok, this particular test has been around eight, ten years, I don’t know the exact date, something of that sort, and it is a method that is being experimented with, looked at and dealt with.
THE COURT: Well, I certainly understand suggestibility and I’m quite certain that it has been enquired into in learned treatises for years. The question is, has this test been accepted in the field of psychology as a valid testing tool to determine suggestibility? And is it accepted in the field?
WILKINS: And I don’t know how to answer that, your Honor.
THE COURT: Well, yes or no.
WILKINS: But I don’t know whether it’s yes or no.
THE COURT: Well, are you telling me that it’s not a universally accepted, scientific tool that’s utilized for testing?
WILKINS: I’m saying that the MMPI and the WAIS-R are not universally accepted tools, that—
THE COURT: Well, they’ve been around for quite awhile.
WILKINS: Yes, uh-huh. Yes, and all I’m saying to you is when you said ‘accepted in the field’ is that different people in the field accept different things as valid and reliable. Different people in different parts of the field use different things.
THE COURT: Well, I’m just trying to determine whether or not it’s scientifically accurate. In the first place, nobody’s really indicated to me what the test is or what the scientific basis is. You’ve used the term that there was some empirical studies done which means somebody took the effort to test it, at least, on some segment of society and documented the results.
CROW: Your Honor, for the record, (unintelligible) the test that was done.
THE COURT: All right, I’m gonna read it here in a minute.
STIDHAM: Your Honor, am I to understand the State’s objection is that Dr. Gudjonsson is from Iceland and practiced psychiatry in London?
FOGLEMAN: Dr. Gudjonsson is not testifying.
STIDHAM: Well, it seems to me that the prosecution’s objection is based on ‘Well, this is something that comes from Great Britain, and”—
THE COURT: Are you making a statement or an objection?
STIDHAM: Your Honor, I’m making—I’m trying to determine what the nature of their objection is.
THE COURT: Well, their objection is that the test that he’s purporting to report is not scientifically accurate, that it does not meet the Frye test and is not of scientific import and therefore not admissible. Now that’s the plain, simple objection and I’m trying to weed it out and determine whether or not it’s a test based upon any credible research and whether or not it’s a test that is recognized in the field and one which people rely upon. That’s the sole issue.
WILKINS: I thought the witness testified to that, your Honor.
FOGLEMAN: He said he didn’t know whether it was generally accepted or not.
CROW: He also testified he didn’t think the MMPI was generally, excuse me, universally accepted.
WILKINS: It is generally accepted by a wide number of people. Now what that means in terms of the field, I don’t know how to deal with that.
CROW: Your Honor—
THE COURT: Wait a minute. (Pause, Court reading) Did you make up this suggestibility tale here yourself?
WILKINS: No, I did not.
THE COURT: Is this little scenario, is that the one that’s suggested in this textbook?
WILKINS: Yes.
THE COURT: Are there any other variations of it?
WILKINS: No. That one is not in the textbook. It’s from an article by Dr. Gudjonsson where the actual scale is published but he did make reference to it—
THE COURT: What is the scale? Tell me what the scale is.
WILKINS: The scale is—what you’re concerned with is you read a short story, ok, about some facts. Then your concern is that how well does the person recall the facts? About the story? Then you’re concerned with if I begin to apply pressure to you, will you change your response? That’s—
THE COURT: What is the scientific method that’s employed with this?
WILKINS: I’m not sure what you’re asking me.
THE COURT: Well, if you had a seventeen year old boy—
WILKINS: There is a—
THE COURT: That had a low IQ in front of you, and you being a professional person, a doctor, would that not in and of itself, the position you hold create some level of suggestibility?
WILKINS: Probably. Which is—
THE COURT: What is the scientific method that’s employed?
WILKINS: There is a scoring criteria used to measure yield, what’s called yield. There is a (?) about what you say to them to apply pressure, which that is standardized.
THE COURT: What is the standardization that’s employed in the method? It would seem to me that whoever the testing—
WILKINS: And I guess my thought about that is there probably is some suggestive elements to that but we spent a half hour awhile ago talking about the suggestive elements in a lot of tests in psychology. That’s—some of them are less objective than others.
THE COURT: All right, I don’t know. Go ahead—any other questions?
CROW: Your Honor, if I might, my understanding of the Arkansas Supreme Court is they abrogated the Frye Rule, we’re not under Frye anymore now based on 703, rule 703. The last sentence in 703 says—talking about a test, anytime the expert can base an opinion on it “if of a type reasonably relied upon by experts in the particular field” not generally, by experts in the particular field, “in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Your Honor, I think he’s testified as to numerous experts in the field that relied on this test.
THE COURT: Well, I think that’s what I asked him, was this a recognized test that’s relied upon by experts in his field?
WILKINS: And to that I answered yes, when you asked me “Is it widely” I don’t know what you mean by widely is all—I was not trying to be difficult, I was trying to decide what, if we’re talking about it being universal or not, or by 9/10ths or 2/3rds or what—
THE COURT: What is it that an expert in this area can—how they can benefit the jury’s finding of the fact? That’s what I want to know. What is it that he can testify to that a jury wouldn’t already have the capability of doing on their own?
CROW: Your Honor, I think every individual would have a different suggestibility, amount of suggestibility. And that’s—I don’t think that’s obvious from a jury watching Mr. Misskelley from across the room, or even listening to him testify, as to how suggestible he is or isn’t. Similarly, while a jury might have a general idea what someone’s IQ is, if you look at them at watch them you kind of get an idea what you think, but, we certainly allow in evidence every day someone’s IQ.
THE COURT: Well the issue in this case, besides guilt or innocence, which is probably the paramount concern, is your defense notion and idea that the police overrode his free will and either told or suggested to him what his responses should be in a confession or statement, however you characterize it. Now, that’s an issue that the jury will have to resolve—
CROW: Yes, Your Honor.
THE COURT: So what is it that this expert or any other expert can give to the jury that would aide and assist them in arriving at that ultimate finding that he was over-reached (?) or—
STIDHAM: Doctor Gudjonsson’s scale measures suggestibility in individuals. It’s empirical, doctors and psychologists use it to measure suggestibility among individuals. The suggestibility scale and the results Dr. Wilkins conducted in Mr. Misskelley will help the jury understand his level of suggestibility.
CROW: Some individuals may have a high level of suggestibility, other ones may have low. We’re attempting to—
THE COURT: I’m reading the Rule 704 with regard to the ultimate issue, and the annotation of 1984 by Congress amending it—I don’t know if Arkansas has amended it, apparently we haven’t—
CROW: We have not, Your Honor
THE COURT: The quote is added to Rule 704 is “No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereof.”
CROW: Your Honor—
THE COURT: And I’m inclined to believe that the Arkansas Court would accept that modification.
CROW: Your Honor, if I may respond to that. Nothing we are going to put on here is going to have Dr. Wilkins or any other expert testify as what was, as whether Mr. Misskelley had the proper mental state to commit this alleged crime. The issue—
THE COURT: That’s not the sole issue.
CROW: Your Honor, I understand that. (unintelligible) whether he is suggestible or not, if that is the—I’m, you’re going back so far. Again, a mental state includes IQ and we certainly allow that type of evidence in, Your Honor. And to say that just because anything dealing with mental state so that we don’t let it in is a total abrogation of what the rules are. Your Honor, whether or not Mr. Misskelley is suggestible is a separate issue from whether he was guilty or innocent. The jury could find he was very suggestible yet believe that he’s guilty.
STIDHAM: The jury is to decide the voluntariness of the statements to the police, Your Honor. The suggestibility—
END OF AUDIO
WILKINS: --and the generally accepted results are yes in about 18% of all murder cases. Now then, if they do happen, how are we to study—how are we to look at those instances and those places where that may or may not have happened and what factors are involved in the person involved in that who would be more inclined—who would be more inclined to be influenced into making a false confession. The scale, then, is one of many options that is used, much like we don’t depend on any one scale for personality assessment, we use several. The suggestibility scale, which has been used in a wide variety of places—many of them in Great Britain, I agree, but it has been used in a wide variety of places. It has all kinds of reliability data, it has validity data—that it has been demonstrated to be a valid and reliable instrument. It has been used a great deal outside this country; it is becoming increasingly used in this country. I haven’t used it before in my practice—I have not until recently, the last couple of years done any false confession patients. I did one a while ago—so in this case, then, as far as my using it has nothing to do with it being worthless as it is due to the fact that I’ve never had need for it before.
THE COURT: It’s not based upon the objective findings of the examiner?
WILKINS: Is it based on the objective findings of the examiner—
THE COURT: Your conclusions that are drawn from questions that you asked after you read a one-paragraph statement to someone.
WILKINS: Yes.
THE COURT: And is it not based further upon your interpretation of those responses to some standard?
WILKINS: No. Well, I don’t know what you mean by that. There is a yes/no category; if they say this, it’s yes, if they don’t then it’s no. So in that sense there is—my interpretation has nothing to do with it. It depends on what they say if it fits in category A or category B. So, my interpretation of what they say is not at issue.
THE COURT: It’s not like math where there’s an exact response, this is something that has to be interpreted—
WILKINS: There is nothing in psychology that’s an exact response like math.
THE COURT: All right, you got any other questions?
DAVIS: Yes, sir.
THE COURT: Go ahead.
DAVIS: Isn’t it true—how do you perform this test? How do you do it?
WILKINS: You tell the person that you’re doing—“I’m going to read you a story. I want you to remember as many things as you can.”
DAVIS: Ok, and then you read them the story?
WILKINS: Yes.
DAVIS: And then who asks the questions?
WILKINS: I do.
DAVIS: Ok, and is it the reflection in your voice on certain questions and how the question is asked in order that—
WILKINS: No.
DAVIS: In order to increase suggestibility?
WILKINS: No.
DAVIS: You just ask them in a deadpan voice, each question?
WILKINS: Yes.
DAVIS: No difference each time?
WILKINS: No.
DAVIS: No inflection?
WILKINS: No.
DAVIS: And then you interpret from their responses based on this scale?
WILKINS: You—what you first do then is to see—in the questions, there are some questions that are accurate in the sense of being what is in the story. There are some questions that you ask them that are not accurate in terms of what is being said in the story regarding size, race, weapons, different things. “Was it three people or was it two people”—the question is “Was it three people”, and they answer yes or no. Now, the questions are designed so that it’s either factual or non-factual according to what’s in the story itself. You then see what their score is in terms of how many accurate ones that they get. You then say to them “This is really important. You didn’t do very well this time. I want you to think carefully about it and we’re going to do it again.”
DAVIS: And the manner in which you say that would determine the degree of suggestibility that that has on the person?
WILKINS: Certainly. And if you get more and more hostile, you may get more and more yield.
DAVIS: And the manner in which you—your mannerisms, your characteristics, the tone of voice, your appearance, how close you are to them, all those things may affect it, correct doctor?
WILKINS: And all that is (unintelligible) of doing it.
DAVIS: Well, all those things would affect it.
WILKINS: Surely, yes.
DAVIS: Ok. And you have never administered this test before, correct?
WILKINS: No.
DAVIS: Have you had any—gone to any schools or training on how to give it?
WILKINS: No.
DAVIS: This textbook that you showed us looks nearly brand new. Did you buy it right before you gave the test?
WILKINS: No, in fact I got the test—the test came a long time ago.
DAVIS: Did you buy the book after the test?
WILKINS: Uh, I may have because it just came out not very long ago. I can’t remember when I did buy it.
DAVIS: So, you hadn’t even read the book before you gave the test, correct?
WILKINS: Uh, yes I had, in fact. Or, I had read parts of the book, yes. The book was published in 1992.
DAVIS: You never had any training on how to give this test, right?
WILKINS: Well, I’m not sure what you’d—how you’d do that, no.
DAVIS: Ok.
WILKINS: It’s described word for word what you do in the administrations and instructions.
DAVIS: Well, you’ve had training in how to give the MMPI, correct?
WILKINS: Yes.
DAVIS: In fact, you go to school to learn how to give those tests, right?
WILKINS: Yes.
DAVIS: Standardized tests you learn in school and you learn as part of your professional training how to give those tests, correct?
WILKINS: Yes.
DAVIS: Ok. And this, you never had any training at all in how to give it, right?
WILKINS: No.
DAVIS: And the first time you ever gave it was on this guy sitting over here?
WILKINS: Yes.
DAVIS: Ok. And you’re in here today and you plan to testify as an expert based on a test that’s never been con—never been scientifically tested in this country, on male individuals in the United States of America, based on one test and no particular training in that test field? Is that right?
WILKINS: I guess so.
DAVIS: Your Honor—
CROW: Your Honor, as far as training goes I think it’s clear that he followed the instructions—
WILKINS: And I think beyond that, too, is that I also have twenty years of experience in a wide variety of other issues which also makes it like I’m not the first person—it’s not the first test that I’ve ever seen.
DAVIS: Well, could Mr. Crow have picked up those directions and read them and conducted this test on his client?
WILKINS: Yes.
DAVIS: And he’d be just as qualified as you to testify as to the results if he’d read—
WILKINS: No, he would not be as qualified to interpret their meaning.
DAVIS: But you haven’t had any training in how to interpret that, correct?
WILKINS: I’ve had training in how to interpret suggestibility. It’s well known in the field, it’s been taught forever.
THE COURT: What is the ultimate thing you’re trying to get him to testify to, based on this test?
STIDHAM: Your Honor, Mr. Misskelley’s results from the Gudjonsson Suggestibility Scale which is a scientific test, which has empirical findings to back it up that are all in this book. Dr. Wilkins has testified to the fact that it’s commonly used by experts in this field, and we submit that under the rules of evidence that it’s admissible and it goes to—should go to the (??) to help them determine the issue of voluntariness of the statements made to the West Memphis Police Department.
DAVIS: Your Honor, of course our basis for objection is that it is not—there hasn’t been a basis or clear showing that the results of this test in this particular instance, under these circumstances have any scientific validity based on their failure to show proper scientific and empirical data to support the test based on the test examiner’s lack of qualification, training or experience in giving the test and his very own admission that his interpretation is an important aspect of the results of the test and he told the Court that he has no training, no experience, no background in conducting this test until this particular case.
STIDHAM: Your Honor, the State has had nine months to retain an expert to put in front of the Jury to testify in rebuttal to this.
DAVIS: Judge, the State doesn’t believe that there’s an expert on the face of the Earth that can give any kind of test that can tell any more about suggestibility than what twelve people sitting right there can figure out on their own—
STIDHAM: Judge, I’ve got one in the next room that I plan to call to testify here in a few minutes.
DAVIS: Well, and we don’t believe he’s worth the—
CROW: Your Honor, if I understand the State’s last comment, then, it’s not an issue of any type of training for this test that’s the issue, or any type of—how many times that you do it whether it’s once or twenty million, they don’t think the test is valid. That’s not for him to decide, Your Honor.
THE COURT: I’m gonna take a ten minute recess so I can weed through all this garbage.
