THE COURT: All right, gentlemen, the Court’s ruling is as follows: The Court is of the opinion that the test regarding suggestibility is flawed in that it does not meet a scientific standard upon which the profession generally relies. Secondly, that Doctor Wilkins’ absence of experience, training and education in the utilization of the test would fatally flaw any results that he might conclude from such test. I will, however, allow Doctor Wilkins to continue his testimony; for you to elicit from him his opinion, if he has one, as to the defendant Jessie Misskelley’s likelihood or probability of having information suggested to him. In other words, I’ll allow you to ask Doctor Wilkins “Doctor Wilkins, based upon your examination, your testing and your complete information from whatever source regarding Mr. Misskelley, do you have an opinion as to whether or not he is a overly suggestible individual?” And if he says, “I have such an opinion based upon that training and information and testing”, “What is the opinion?” And he’ll be allowed to give that opinion. If that opinion is that he is suggestible, than I’m gonna allow the State to do everything they can to discredit that testimony: calling additional expert witnesses, questioning his data, questioning his competency in the area. But I’m not going to allow him to parrot out the results of a test that I consider to be lacking in scientific foundation, first, and secondly his ability to such a test should it have any scientific basis that’s recognized within the field. So, it’s a two-fold objection that I’m ruling. One, I don’t think it’s scientific. Two, if it is scientific, he’s not qualified to administer it. But that does not preclude him from him testifying as to his general opinion and notions based upon the field of forensic psychology that Mr. Misskelley was suggestible, if that makes sense.
STIDHAM: Can I have a moment, your Honor, with Mr. Crow?
THE COURT: All right.
CROW: (unintelligible)
THE COURT: Sure.
THE COURT (to unknown): That goes back to him. Yes. Well, that’d be a proffer—is this being offered as a proffer?
UNKNOWN: Yes, your Honor.
THE COURT: All right, it may be received for identification purposes as a proffer of evidence.
DAVIS: Your Honor, we’ll agree to a copy being substituted (unintelligible)—
THE COURT: Sure, ok.
CROW (at the bench, whispering): I have a question for the Court, just for record purposes—
THE COURT: Well, she’s not getting it right now—
CROW: Ok, well at this point let me just ask the question whether she gets it or not. As far as preserving our record, do we need to have him go into—what he would have testified to about the results? I mean, just to tell the Court what he would—
THE COURT: Why don’t you just outline what he would have testified to. Just dictate it right now.
CROW: Ok.
THE COURT: This is an offer of proof of the testimony that Doctor Wilkins would have given had the Court permitted him to testify with regard to the Suggestibility Scale, is that what it’s—
STIDHAM: Gudjonsson Suggestibility Scale, your Honor.
THE COURT: Spell that, cause I sure couldn’t say it.
STIDHAM: Your Honor, would it be appropriate to have the witness—
THE COURT: Yea, you can say what it would have been, but let him testify if you want to.
CROWE: (unintelligible) Just very briefly outline it, your Honor.
THE COURT: Ok, that’s fine. I’ve heard that, sometimes, and changed my mind so it might be a good idea.
STIDHAM (to Wilkins): Would you briefly outline to the Court what your testimony would have been with regard to Gudjonsson’s Suggestibility Scale?
WILKINS: I would have reported that I had given the scale and that the yield scores, as they’re known as, I would have given.
CROW: Would you have gone through the—talked about how the test was given?
WILKINS: Yes I would have.
CROW: And how the scoring was done?
WILKINS: Yes I would have.
CROW: And explained how the pressure was stepped up at each stage?
WILKINS: Yes.
CROW: And the results?
WILKINS: Yes.
THE COURT: Well, let me ask you this: I assume that you have an opinion based upon your evaluation. Is your opinion based solely and only and entirely upon this Suggestibility Test?
WILKINS: No, it is not.
THE COURT: All right, then I assume that if I allow you to give your opinion that your opinion would not be altered or affected by the Court’s ruling prohibiting a discourse on the method, the questions and the technique employed in the Suggestibility Scale.
WILKINS: No, it would not.
THE COURT: All right. All right, gentlemen. Basically he’s saying it wouldn’t make any difference how I ruled.
STIDHAM: We’d still like to offer this—
THE COURT: Sure.
CROW: Thank you, your Honor.
STIDHAM: Thank you, your Honor, very much.
THE COURT: Ok—
WILKINS: (unintelligible)
THE COURT: Yes sir. Now gentlemen, you understand if he gives that opinion the State’s gonna be permitted to go into the factual basis and go into all this stuff that we’ve just been spending twenty-five minutes on about how reliable are some of the test data.
STIDHAM: Your Honor, he’s not gonna testify—
THE COURT: But on the other hand, I don’t want you all to go into tests that I’ve basically said that I don’t have much confidence in, but certainly his ability to administer the test might be appropriate.
CROW: Your Honor, his testimony is that—what he has proffered is that his opinion of suggestibility outside—taking this test completely away, is that he’s still suggestible.
FOGLEMAN: Then why was it even proffered in the first place?
CROW: It’s one of the things that he based his opinion on, your Honor—
THE COURT: I think he would have been allowed to give that opinion or any other qualified person would have been able to give an opinion that’s based upon their education, training and experience. What you wanted to do was introduce the actual test.
STIDHAM: That’s correct, your Honor.
THE COURT: Well, I mean he apparently is telling us now that it wouldn’t have mattered, wouldn’t have affected his opinion—it would have been the same.
STIDHAM: He still has an opinion that’s based not simply on what we’ve offered for proffer—
THE COURT: Well, let me ask another question. Doctor Wilkins, could you have arrived at your same opinion based upon a reasonable degree of scientific certainty in the field of forensic psychology had you not administered or even obtained results on the Suggestibility Scale?
WILKINS: Yes.
THE COURT: All right, gentlemen.
CROW: Thank you, your Honor.
THE COURT: Let’s proceed.
(UNIDENTIFIED): Are we going to get the jury back in here?
DAVIS: Is that opinion based on any other test?
THE COURT: I don’t know, that’s something you’ll have to ask. I’ve asked enough. Call the Jury back in, I’m gonna let the Jury have a recess and I’m gonna announce that question, gentlemen.
JURY RETURNS
THE COURT: All right, court will be in session. All right, ladies and gentlemen again I’m going to apologize for having you pop up and down and the number of recesses we’ve taken but if you’ll remember back when we were picking the Jury I warned you that those interludes would occur and that they’re necessary and that they’re in the interest of justice, so please be patient with us and again I apologize for it. I received a question from one of the jurors, I believe Mrs. Lutor, that quote “Why was the rule not invoked for Doctor Wilkins as it was with all the other witnesses?” The rule, as you’ve heard me describe, can be waived for members of the family; can be waived for persons that are testifying in an expert capacity. The State now has a psychologist in the courtroom that will be allowed to hear pertinent parts of the testimony, and for those reasons Doctor Wilkins was excused from the rule, so that shouldn’t give you any concern whatsoever in your consideration of this case. The Court had made that ruling and I simply didn’t tell you, so now I am telling you. The experts, the rule is generally waived for them. Not in all cases, however, but in this case it was. Anything else, gentlemen, before the noon recess? We’re ready to proceed, ladies and gentlemen, but I’m tired, the court reporter’s tired and we’re gonna take a lunch break at this time until 1:00. With the usual admonition not to discuss the case among yourselves or with anyone, you should not let anyone attempt to influence you at all in this case. And with that reminder you may stand in recess until 1:00.
RECESS
RETURN TO OPEN COURT
(AUDIO BEGINS WITH COURT ALREADY IN SESSION)
CROW: Doctor Wilkins, did you personally interview Mr. Misskelley?
WILKINS: Yes I did.
CROW: How much time did you spend with him?
WILKINS: I expect doing the testing and the interview time probably in the neighborhood of eighteen to twenty hours.
CROW: Do you have an opinion based on your interaction with him, your observances, as to whether or not he would be suggestible more so, less so or average?
WILKINS: I think Jessie would be quite suggestible.
CROW: Did you do any evaluation as to his dependency status?
WILKINS: We talked—part of that comes from Jessie’s social history as we’ve been pointing out before and as—in the past is that Jessie comes from a family system that has a fair amount of alcohol abuse and some child abuse as well. And when we look at dependent—I’m sorry when we look at abusing families, one of the things we see a lot of is what’s called co-dependency. And by co-dependency we’re talking about people in the system taking responsibility for other people’s actions, other people’s feelings. In this case in terms of children, one of the things that they begin to look at and deal with is that somehow they’re doing something wrong, that they’re the fault of, that they’re the cause of the abuse occurring. Therefore, they can figure out how to please, how to act right, whatever that may be for the abusing person—that the abusing person will stop abusing them. That is a child has kind of a general tendency to accept fault and to try to please the abusing person.
CROW: Just one moment, your Honor. Pass the witness.
CROSS EXAMINATION
DAVIS: Doctor Wilkins, you indicated that you examined Jessie Misskelley some eighteen hours, is that correct?
WILKINS: Yes.
DAVIS: Have you done some examination on him since we last had some hearings?
WILKINS: Yes I have.
DAVIS: Ok. Now, and at that time you gave basically the same opinion that you’ve given here and at that time you had done eleven hours (of) examination, correct?
WILKINS: In terms of the information that we’d dealt with, yes, at that time, basically the same.
DAVIS: So, your opinion that you’re telling us about was formulated after a total of eleven hours of examination of this defendant?
WILKINS: No, there were additional things that were done in the hours afterwards that also were important to me.
DAVIS: Any significant changes that we should be aware of in your nine-page report that you made based on those first eleven hours?
WILKINS: Um, one of the sessions with Jessie was, uh, I made up a false story; in about a half an hour got Jessie to confess to a robbery that didn’t occur—
DAVIS: Your Honor, Excuse me, your Honor we’re going to have to approach the bench on that one.
BENCH CONFERENCE
DAVIS: I had never heard this story before, but I think what he’s getting ready—he, it’s some sort of creative test that he came up with where he created a false story and then, as I understand it he’s gonna say that in ten minutes he had Jessie confessing to something in his office regarding some made-up story about—
THE COURT: Well, I’m not gonna allow that.
FOGLEMAN: I think he already testified to it, your Honor, and we’d ask that it be stricken—
(speaking over each other)
RETURN TO OPEN COURT
THE COURT: All right, ladies and gentlemen, the last answer was not responsive to the question asked by the prosecutor; you’re instructed to disregard the last answer of the witness as unresponsive to the question directed to him.
DAVIS: Doctor, did you take a history from the defendant prior—during the course of your examination of him?
WILKINS: Yes I did.
DAVIS: Ok, and in that history, tell us what he related to you regarding his drug and alcohol use and gas huffing, things of that nature.
WILKINS: He related to me that particularly in a period, I think, as I recall from about age thirteen to fifteen or so he huffed gas regularly, on a pretty regular basis, almost daily. He also had used alcohol and also had experimented with other drugs.
DAVIS: What other type drugs, Doctor?
WILKINS: Uh, pot, as I recall. I’d have to look for the other ones—let me see if I can remember.
DAVIS: Ok, and this person that you’ve characterized as being about, I think education-wise, second or third grader, did he also indicate to you regarding number of sexual partners he had had?
WILKINS: Yes he did—
CROW: Your Honor, I object.
THE COURT: I’m sorry?
CROW: I object, your Honor. Can we approach the bench?
THE COURT: All right.
BENCH CONFERENCE, WHISPERED
CROW: I fail to see the relevance of talking about sexual partners—
(speaking over each other)
DAVIS: It’s my understanding that they’ve characterized the defendant to be a nearly childlike, mentally slow individual and I think his actions, which are consistent with those of a teenager or those of a more mature individual and including—
THE COURT: All right, I’ll allow you to ask it in that fashion. Yea, wait a minute—
CROW: In response to that, we are all aware of severely mentally retarded people who have (unintelligible)—
(talking over each other)
CROW: Excuse me, if I can finish, that have sexual liaisons. That has nothing to do with truthfulness or—
THE COURT: Well, the way he’s proffered the question to the Court at the bench here is that’s a legitimate premise that he can direct to the doctor and then ask him “Is that in conformity with normal adolescent behavior?” I mean you’re talking about argumentative factor, which you can of course interject.
RETURN TO OPEN COURT
DAVIS: And Doctor, in your report initially, and I’m looking at page three of that report, do you have a copy of it?
WILKINS: Yes I do.
DAVIS: Ok. Jessie advised you that he was a heavy gas huffer for approximately two years?
WILKINS: Yes.
DAVIS: And that was when he was approximately thirteen or fourteen?
WILKINS: As I recall, yes.
DAVIS: And he also stated that he has used pot, is that correct?
WILKINS: Yes.
DAVIS: And he also stated that he has been a heavy alcohol user as well?
WILKINS: Yes.
DAVIS: And he also indicated to you that he had been active sexually with a number of partners, is that correct?
WILKINS: Yes.
DAVIS: And sexual activity, while maybe not being condoned by society, that is something that is—people in this teenage range become interested in, in normal developmental course, correct?
WILKINS: Yes.
DAVIS: Ok. And so the indication that he had a number of sexual partners by the age of seventeen when you evaluated him, that would be consistent with a normal developmental teenager, correct?
WILKINS: Not necessarily.
DAVIS: Would it be inconsistent with that?
WILKINS: No, it wouldn’t be inconsistent but it would not necessarily be consistent.
DAVIS: Now…you’ve indicated that on your exam that you performed the WAIS-R test?
WILKINS: Yes.
DAVIS: Is that a standardized test?
WILKINS: Yes.
DAVIS: Is that a test that involved any objectivity—or subjectivity on your part, excuse me.
WILKINS: Yes.
DAVIS: Ok. And the WAIS-R is the test that you use to determine the defendant’s IQ?
WILKINS: Yes.
DAVIS: And in that particular test, what was the performance IQ?
WILKINS: 75? Let me—yes.
DAVIS: Now, you had in your file some past tests that had been conducted on Jessie to determine IQ, did you not?
WILKINS: Yes I did.
DAVIS: Ok. And in ’89 did you have a test, an IQ test that was performed on him to determine what his functioning was at that point?
WILKINS: Uh, let me—yes I did. I need to find the records to find exactly what—
DAVIS: Sure, Doctor, go ahead.
WILKINS: I can’t remember (unintelligible). Yes, I’m sorry. Ok, yes.
DAVIS: Ok, and what was that performance IQ in 1989?
WILKINS: 1989, uh, I’m sorry, it’s not in this report. I’ll have to dig out all the old evidence, I thought it was in this report and it’s not.
DAVIS: Sure, I understand.
WILKINS: In, uh, which year are we talking about now?
DAVIS: 1989.
WILKINS: 1989 we had a performance of 84 and a verbal of 68 and a full-scale of 74.
DAVIS: Ok, and in 1992 there was also—prior to the time you did your examination there was another IQ test, correct?
WILKINS: Yes.
DAVIS: What was his performance IQ at that time?
WILKINS: 88.
DAVIS: Ok, and what was his full-scale IQ at that time?
WILKINS: 73.
DAVIS: Ok, so the two past IQ examinations that had been performed on him immediately prior to the one that you did indicated that his performance level was in the average range, is that correct?
WILKINS: Uh, low average, yes. The first placed low average, the second one average, yes.
DAVIS: Ok, well am I correct in understanding that anything above 80 is in the average?
WILKINS: That depends on the criteria you want to go by. Typically it’s—Social Security uses 80 above, other places use 84, so yea.
DAVIS: So, by most criteria 84 and 88 would be in the average range?
WILKINS: Yes.
DAVIS: Ok. And when we talk about performance IQ, describe what that is, what that involves.
WILKINS: Those entail, problem solving, conceptualization tasks, thinking tasks, they’re non-verbal. Example is putting together puzzles. Being able to—I show you a pattern of blocks and you have to build designs that match the pattern of blocks. It’s conceptualization in a non-verbal form, problem solving in a non-verbal form.
DAVIS: And in regard to that he rates about average, right?
WILKINS: On those two testings, yes.
DAVIS: Now the MMPI-2, that was another test that you conducted on him, is that correct?
WILKINS: Yes.
DAVIS: Now I don’t want to get too complicated ‘cause I don’t understand all this stuff, but I notice down here you said, let’s see, you said he had a high—or you said a mild elevation in the F scale.
WILKINS: Yes.
DAVIS: Ok. Now Doctor it’s true that what you actually found was a T value in that F scale of 83.
WILKINS: Yes.
DAVIS: Now are you telling me that that’s a mild elevation?
WILKINS: It’s an elevation above normal levels.
DAVIS: Well don’t they rank the elevations—as far as the T scale is concerned isn’t that something that’s actually ranked in terms of low range, middle range, moderately high range and very high range?
WILKINS: Yes. That may have been a mistake then. I may well have mispronounced what it was supposed to be.
DAVIS: This is a text regarding—MMPI Handbook. Show me here what an 82 to 88 T score on the F scale indicates to you in that book.
WILKINS: Uh, very high.
DAVIS: Very high?
WILKINS: Yes. This would not be quite the same because this is for the MMPI rather than the MMPI-2, which changed critera, but it would still be in the high range.
DAVIS: So when you put in here that that was a mild elevation, that would not be accurate would it?
WILKINS: No. It would not be. No.
DAVIS: And then from that statement that it was a mild elevation you interpreted that that could show malingering, right?
WILKINS: Yes.
DAVIS: And malingering means what, Doctor?
WILKINS: It means, uh, making up stuff. Trying to present yourself as being ill when you’re not for some particular gain.
DAVIS: Did you explain to Jessie what these tests were being performed for?
WILKINS: We talked some about them in general, yes.
DAVIS: Ok. And he knew that you were coming to court to testify about the results of these tests?
WILKINS: Yes.
DAVIS: And you talked with his lawyers before you took the test or gave him the test?
WILKINS: Yes.
DAVIS: And do you know whether he talked with his lawyers that he was gonna take those tests?
WILKINS: Not that I know of. I don’t know.
DAVIS: Ok. Well, in your report you said that because of that elevation in that T scale—that 83 score, because of that mild elevation that gave you some concern about malingering?
WILKINS: Yes.
DAVIS: But you characterized it as a mild elevation.
WILKINS: Yes.
DAVIS: When you characterize it as a significant or very high elevation, it gives you more concern for malingering, doesn’t it?
WILKINS: Uh, the T value I used the raw scale value, so no. An 83 gives pause for both malingering and for how valid the scale is for a variety of reasons.
DAVIS: Well you indicated in your report that a mild elevation would give pause, correct?
WILKINS: Any elevation gives pause.
DAVIS: Well a very high elevation would give you, for lack of a better word, a whole lot of pause, Ok?
WILKINS: Yes.
DAVIS: And what you did was—in your report instead of saying that, interpreting that to be malingering, you just discounted that and said that just didn’t place any significance on it, correct?
WILKINS: I don’t think that’s what I said, but—
DAVIS: Well you didn’t indicate in your report that you felt like it was malingering or that he was not actually attempting to answer the questions correctly or anything of that sort?
WILKINS: I said that it did not appear to be the most appropriate interpretation that he was malingering.
DAVIS: You said the mild elevation of the F scale can be viewed as an attempt at malingering, however this does not appear to be the most appropriate interpretation.
WILKINS: Yes.
DAVIS: So when presented with the option of whether he’s malingering on the test, or whether he’s giving you valid responses, you chose the valid responses, correct?
WILKINS: With caution, yes.
DAVIS: Well then you go on to make a great deal of interpretation about the results of that MMPI, correct?
WILKINS: Yes.
DAVIS: Now is it true, and I want to be sure I understand this, I talked about—I asked you about the F scale, and in an MMPI there’s two other scales, the L and the K?
WILKINS: Yes.
DAVIS: Ok. So the F scale is kind of there to determine if the person is giving you valid responses?
WILKINS: (unintelligible)
DAVIS: Ok, and he ranked very high in terms of whether he might not be?
WILKINS: Yes, right.
[taken from transcript]
1482
Q. Okay. And then the L and the K are the ones that you really draw your conclusions from as far as the significance of the test, right?
A. No.
Q. What do the L and the K tell you?
A. The L, F, and K are each what are called validity scales. They each measure a different part of whether or not you’re looking at a valid profile. If they’re responding valid, they look at different things. You draw your interpretation on the other ten scales that come afterwards. Now, the purpose of the first three scales, the L, K and F, are to decide is because of ten things I have going over here are they—are they real or valid. Do they look like the—that they’re—that the person tried to lie, they tried to make up stories, and you use these three to decide that so you make an interpretation of these.
1483
Q. Did you indicate that the responses on the L and K were normal?
A. Yes.
Q. Okay, and then you got the high—very high range on the F scale?
A. Yes.
Q. How did you draw the conclusion from normal scores on the L and K range? You said the validity profiles indicate normal responses.
A. On the L and K.
Q. Right. And then the F has this high range that’s either indicative of malingering or not understanding the questions?
A. Yes.
Q. And then you go on to draw nearly—well—
A. And all I said again is that—is that—is that—us—uh—that we need to—that we need to consider this very carefully because of the high F scale.
Q. And if in fact malingering was what we have on this test, then the validity of the other scores would not be relevant, correct? It would not be a—you would not depend on them?
A. Right. Right.
Q. Now, you also gave what’s called a Bender Gestalt?
A. Yes.
Q. What is—what in the world is a Bender Gestalt?
A. That’s a series of—of nine stimulus pictures you have
1484
a person copy.
Q. So if I’m giving—you show me a picture if I’m taking the Bender Gestalt?
A. Yes.
Q. Then I have a pen or pencil and I try to draw that picture?
A. Yes.
Q. Okay. And what were the results you found out about—let’s see—you found significant problems with perseveration and line qualities?
A. Yes.
Q. What does that mean?
A. Perseveration means the tendency to go on, and on, and on, and on, and on. Some—some of the drawings have dots and lines, and the tendency to not be able to stop—stop with the drawing and not going on. The—uh—uh—line quality refers to light, dark line qualities.
Q. And didn’t you note in your report, also, that the defendant seemed to have a tremor or shake in his hands?
A. Yes. Yes.
Q. Okay, wouldn’t that affect the validity of the results you get on a Bender Gestalt—
A. It may well—
Q. If the person’s kind of got a shake to their hand?
1485
A. It may well.
Q. So when you say this in your report about the results of the Bender Gestalt that may not even be valid if he's got a tremor?
A. No. No. The tremor would be more in terms of wavy lines sketches rather than heavy-light.
Q. Well, you said as a part of your diagnosis is based on line quality, right?
A. Line quality is not the same -- light and dark line quality is not the same as consistency of lines.
Q. And from him drawing these ten pictures, you said you could expect memory problems and a difficulty with attention and comprehension?
A. Yes.
Q. Okay. So you found some memory problems with him?
A. Yes.
Q. Now, you also -- this is -- you said that you gave him a House/Tree Person test?
A. Yes.
Q. Tell these ladies and gentlemen what you do for that House/Tree Person test.
A. You tell a person to draw -- you tell a person to draw a house and you give them paper and pencil and they draw a house and you take that away and you give them paper and say, Draw me a tree. They draw you a tree. You say, Draw me a person,
1486
and they draw you a person.
Q. Alright, and in this case when you do that -- when somebody draws you a house, and draws you a tree, and draws you a person, what in world do you do -- I mean, how do you evaluate that?
A. There is a -- a -- a scoring manual. The things you look for is the location on the page, how big the drawings are, how small the drawings are, if they have bars over the windows, or if they have chimneys, if they don't have chimneys, if they have big door, little doors. If the people have eyes, no eyes. If they're big or they're little, if they look like monsters. If the trees look like penises -- if the trees look like Christmas trees---
Q. If the trees look like what?
A. Penises.
Q. Okay. Did you find any of those trees like that in his test?
A. Jessie's?
Q. Um-hum.
A. I don't think so.
Q. You've got his picture there?
A. Yes, I think I do. (EXAMINING.) Yes.
Q. Now, from those three pictures -- those drawings that Jessie did, did you determine that he was of abnormal low levels of inferiority, insecurities, dependency, low self-
1487
assurance, low self-concept, a lot of withdrawal, and over-concerned with interpersonal warmth, a need to demonstrate masculinity, a marked pattern of very weak and inadequate strength, sexual immaturity and some preoccupation with phallic symbols?
A. Yes.
Q. And that was all in those three little pictures?
A. Yes. Yes.
Q. Okay. Where were the phallic symbols in that?
A. Uh—in terms of the tree itself—it look phallic.
Q. Wait. Wait. Wait a minute. Is that picture the one you’re saying? (INDICATING.)
A. (EXAMINING.) Yes. Yes. Um-hum.
Q. And now, is this—
A. The fact that it’s a large chimney, yes. It deals with over-concern with sexuality.
Q. Okay. That—that chimney on this picture is where you come up with the over-concern for sexuality?
A. One of the places.
MR. DAVIS: Your Honor, could I have this marked as State’s Exhibit whatever?
THE WITNESS: My ethics require they only go to somebody who is licensed to look at them.
THE COURT: Well, I’m going to overrule that and I’m going to allow it to be received into evidence.
1488
(STATE’S EXHIBIT NUMBER ONE A IS RECEIVED INTO EVIDENCE.)
BY MR. DAVIS:
Q. Would you circle the part of that that shows where it is that he has—what was that—with sexuality?
A. Over-concern. (MARKING.)
MR. DAVIS: Your Honor, I’ll just make these a composite exhibit—State’s Exhibit whatever the number is.
THE COURT: And, gentlemen, if there’s any question about my ruling as to the admissibility it would be my further ruling that any confidentiality provision or privilege has been waived.
MR. STIDHAM: I believe that’s what the doctor was referring to, your Honor.
THE COURT: Well, I think that’s what it was, too. And that—under these circumstances you’re proffering the witness—they’re waived.
BY MR. DAVIS:
Q. Doctor, also in addition to that long litany of things I read that you gathered from these three drawings, you also gathered that you see defensiveness, aggressive tendencies, and the need to compensate for feelings of inferiority. Is that also true?
A. Yes.
1489
Q. Okay.
MR. DAVIS: Your Honor, may I exhibit these to the jury?
THE COURT: Yes, you may.
(STATE’S EXHIBIT NUMBER ONE A IS EXHIBITED TO THE JURY.)
BY MR. DAVIS:
Q. Now, I under—is there any sort of written test that goes along with this—
A. No.
Q. –that you made all of these conclusions from?
A. No.
Q. Now, the WRAT-R test—
A. Yes.
Q. –and that’s not like R-A-T, that’s like W-R-A-T, right?
A. Right.
Q. Okay. What is that?
A. It’s a measure of reading, writing, and spelling basic skills.
Q. And what you measure in that is his performance on those tests, correct?
A. Yes.
Q. Okay, and there is a difference between function and performance, correct?
A. Yes.
1490
Q. In other words, I could go in and completely fail a test whereas I could go out in the real world and function in society and do certain acts.
A. Under certain circumstances.
Q. Okay. And in fact if the person intentionally or fails to put out a proper effort, then what you’re actually measuring is his performance and not his ability to function?
A. In any test you’re always measuring performance.
Q. And if the person going into it knows that it would be to his benefit to have a low performance, then they can act in such a way that that’s just exactly what they did?
A. Surely.
Q. Now, the next test, the REY. It’s a auditory-verbal learning test?
A. Yes.
Q. Okay. Now, what does that one involve?
A. That involves a list of words that you read to the subject and they try to remember as many of them as they can, then you read the list again, and again, and see how many they remember over trial.
Q. Would it be a fair—you just keep reading the list to them and the same words are in there—
A. Yes.
Q. –and then after a period of time they should remember more words as you go along?
1491
A. Yes.
Q. So you expect to see a curve with an increase in the number of words they recall?
A. Yes.
Q. Which indicates that they’re smart enough to pick up on it?
A. It indicates that their memory for individual items is fairly normal in this case.
Q. Okay, and that’s what you found out, correct?
A. Yes.
Q. In other words, you did—the REY test when you give those words to him, this defendant sitting over here was pretty normal?
A. Yes.
Q. Now, the clock drawing test.
A. Yes.
Q. I couldn’t find that in my book. What is that?
A. That’s—that’s a drawing designed to—a test designed by Edith Cappa at Boston University.
Q. Okay. What do we do when we take that test?
A. That’s basically you have the person draw you a clock and they put the—they put the—draw the clock with the face and then you ask them to set the time at twenty minutes to four.
Q. And what did that test tell you?
1492
A. Looking at—at—do they—can they conceptualize the time—can they recognize a fairly accurate perception from memory of a fairly common object.
Q. What result did you get—I don’t see anything—in there anything in your report about your clock test?
A. Maybe there’s not—there should have been. (EXAMINING.) Uh—that must have been overlooked. It is not—it was fairly normal.
Q. Oh, okay.
A. So I—just the drawing itself was fairly normal. There was no major—
Q. Okay.
A. It was of no particular value in terms of information.
Q. Okay. So that test really didn’t tell you much of anything?
A. No.
Q. Okay. What about this bi—you indicated there was a bicycle drawing test?
A. Yes. You just—you just have the person draw you a bicycle.
Q. So during this course of the test Jessie got to draw a tree, a house, a person, a clock, and a bicycle?
A. And he also got to draw some designs—he go to draw some designs from memory. Uh—uh—got to do the WAIS-R, go to do the MMPI, got to do a achieve—basic achievement
1493
test in reading, spelling, and arithmetic, go to do a Rorschach test.
Q. What—what about the bicycle drawing test. You said in here it’s indicative of Jessie’s difficulty and recall of visual information?
A. Yes. Jessie did a fairly simply drawing of a bicycle. He has trouble recalling details of—
Q. So would I—let me—let me see if this is right. You show him a bicycle?
A. No, I don’t show him anything.
Q. Okay. You just ask him to draw one?
A. Yes, from memory.
Q. Okay. And then you evaluate what he draws?
A. Yes.
Q. Okay, whether it’s a good looking—I mean, how do you evaluate what—
A. Uh—uh—uh—uh—there’s a twenty point scaling. It has a twenty point score, and it deals with the details, the size of the tires, whether it has handlebars, whether it has a gear sprocket, whether it has spokes, those are the kinds of things that you measure how complete or incomplete it is.
Q. Okay. And so that’s another basis that your opinion rests on?
A. Yes.
1494
Q. Now, the Rorschach test you indicated there were no non-remarkable responses to it. Is that true?
A. Yes.
Q. Okay. And he tended to pick out pieces and to produce fairly normal and common responses. There is no indication of significant psychopathology. Is that correct?
A. Yes.
Q. Okay.
A. On that test. Okay—on that test there was not—
Q. Okay. And the Rorschach is kind one of the cornerstones of psychology. Isn’t that true? I mean one of the real—
A. For—for certain people, yes.
Q. Okay. Well, it’s the ink blot test, right?
A. Yes.
Q. Okay.
A. Behaviorists would call it absolutely worthless so it depends upon what field you’re in.
Q. And as far as Jessie was concerned there was no indication of psychopathology. What does that—what is psychopathology?
A. Uh—uh—psychiatric illness.
Q. You’ve got mental diagnosis?
A. Yes.
Q. Okay. There is no indication of that on that test?
A. No.
[FROM THE AUDIO]
DAVIS: Ok. Now, you also told us about these stories that you told him—the Kohlberg’s Moral Development?
WILKINS: Yes.
DAVIS: Are those standardized tests?
WILKINS: Standardized in the sense they’re fairly widely used and that there is a—there are scoring instructions and manuals for them.
DAVIS: There are validity scales to determine whether you’re getting valid results or not?
WILKINS Not in the same way there are for the MMPI—or not in the same for MMPI.
DAVIS: Ok, so you don’t know if the person is actually putting forth any effort or whatever when they’re—or whether they’re actually attempting honestly to answer your questions or respond to that test?
WILKINS: You never know that.
DAVIS: But some of these standardized tests actually—like the one we talked about, the F scale, they include things that tell you—
WILKINS: The MMPI includes things that tip you off.
DAVIS: And in this case when you saw that, you disregarded that in his evaluation, correct?
WILKINS: No I did not.
DAVIS: Now this Piaget stuff—the stuff with the play dough?
WILKINS: Yes.
DAVIS: Ok. That is to design—is to determine kind of whether the person is a concrete thinker or not, right?
WILKINS: That one is designed to test what’s called concept assessment, yes. Whether they’re concrete—whether they can form concepts or not. (unintelligible) of matter, primarily.
DAVIS: It’s designed to determine the difference between abstract thinking and concrete thinking—
WILKINS: In broad terms, ok.
DAVIS: Ok. And there’s nothing—probably at least half the population, to some extent, are what are called concrete thinkers, wouldn’t you agree?
WILKINS: Yes.
DAVIS: Ok. So I mean the fact that the test indicated this defendant’s a concrete—has concrete thought patterns—
WILKINS: Not in the same way, no. I’m saying that there’s a difference between being able to conserve matter and being a concrete thinker, that being a concrete thinker is a higher level of development than being able to conserve matter.
DAVIS: But there are a lot of people that as far as their concrete thinking and their results on this test can function perfectly normally in society and be concrete thinkers as indicated by that test.
WILKINS: People can be concrete thinkers and perform relatively normal in society.
DAVIS: And know right from wrong?
WILKINS: Yes.
DAVIS: And conform their conduct to what the law requires?
WILKINS: Yes.
DAVIS: Which is what you found in this case—
WILKINS: Yes—
DAVIS: This defendant knew right from wrong, correct?
WILKINS: Yes.
DAVIS: No doubt at the time that this incident occurred—he knew what criminal conduct was and he knew you shouldn’t do it?
WILKINS: Yes.
DAVIS: Now as I understand it, based on your evaluation you did not—in fact you specifically found that Jessie Misskelley was not mentally retarded, correct?
WILKINS: Yes.
DAVIS: Ok. And the—
WILKINS: In a psychological sense.
DAVIS: Well, and the diagnosis that you rendered for Jessie Misskelley was one: adjustment disorder with depressed mood?
WILKINS: Yes.
DAVIS: Ok. And Doctor, would you—would it be expected that someone that was incarcerated awaiting trial on capital murder charges of three eight-year-olds would be suffering from depressed mood?
WILKINS: That’s precisely the reason for the diagnosis, yes.
DAVIS: Ok, so nothing—
WILKINS: That’s nothing terribly exciting, no.
DAVIS: Ok and then the next diagnosis was psychoactive substance abuse?
WILKINS: Yes.
DAVIS: And that has to with his drug use and his gas huffing and alcohol, marijuana?
WILKINS: Yes.
DAVIS: Ok. And then you have boarder intellectual functioning, which is your IQ evaluation?
WILKINS: Yes.
DAVIS: And then you have developmental disorder?
WILKINS: Yes.
DAVIS: And that’s NOS, is that correct?
WILKINS: Yes.
DAVIS: And that means that he didn’t fit any of the normal diagnoses, that’s just kind of catch-all, right?
WILKINS: He had trouble with some reading, some writing, those—things we would expect normal—somebody his age to have done better at.
DAVIS: And doesn’t—isn’t the DSMR-III, which is your—kind of the Bible of psychology, doesn’t that tell you that you don’t make those NOS diagnoses—you be very careful with those—
WILKINS: Yes—
DAVIS: Because those are real borderline?
WILKINS: Yes.
DAVIS: In fact, it’s a real close call between a diagnosis and somebody who’s normal?
WILKINS: Not necessarily.
DAVIS: But—
WILKINS: It may mean that they don’t fit neatly into any one category.
DAVIS: But the manual, the DSM-III tells you you don’t make that diagnosis and you be very careful before you put somebody in that category, correct?
WILKINS: It tells you to be very careful before you put anybody in any category. I don’t think there’s any extra caution on that one.
DAVIS: So let—knew the difference between right and wrong?
WILKINS: Yes.
DAVIS: And he had the ability to form his conduct to that required by the law at the time of this incident?
WILKINS: Yes.
DAVIS: And he wasn’t mentally retarded?
WILKINS: No.
DAVIS: And in fact on his previous IQ tests he had an average performance level?
WILKINS: Yes.
DAVIS: One second, your Honor.
DAVIS: Which—Doctor, let me ask you which one of these tests that we’ve gone over contributed to your determination that this defendant was suggestible?
WILKINS: Uh, some on the house tree person.
DAVIS: Those three drawings that the jurors looked at?
WILKINS: Yes.
DAVIS: Ok.
WILKINS: Uh, probably the majority would have come from uh, interview data.
DAVIS: Ok. Just from talking with him, this—
WILKINS: Social history, those kinds of things.
DAVIS: Now was that an opinion that you drew based on that first eleven hours, or is—is that—
WILKINS: Yes.
DAVIS: Ok. And so basically that’s not a result of any test, that’s just kind of a gut feeling you have based on your experience and expertise?
WILKINS: Yes.
DAVIS: No further questions.
CROW: Doctor, I’ll try to be brief. The full-scale IQ score from the ’89 results?
WILKINS: Uh, for ’89 were uh, a full-scale of 74, verbal of 68.
CROW: Ok. Full-scale for the ’92 results?
WILKINS: Uh, 73.
CROW: And the full-scale you gave him?
WILKINS: 72, I think, wasn’t it? Let me make sure what I said.
CROW: I think that’s correct, Doctor.
WILKINS: 72.
CROW: Scores were consistent?
WILKINS: Yes. There’s one from ’83 that was a 67, uh—
CROW: Has Jessie Misskelley ever been diagnosed in the past as being mentally retarded?
WILKINS: Yes.
CROW: Ok. That’s all I have, Doctor.
THE COURT: Anything else?
DAVIS: You yourself didn’t diagnose this defendant as being mentally retarded, correct?
WILKINS: No I did not.
THE COURT: All right, you may stand down—
CROW: Sorry, your Honor, one question. I apologize, your Honor. When you say mentally retarded, that’s using a psychological standard?
WILKINS: Right.
CROW: It’s not applying any kind of legal standard?
WILKINS: No.
DAVIS: Judge, to my knowledge there—for the purposes of this trial there is no legal standard. It’s the—
CROW: I believe there is, your Honor. (unintelligible)
THE COURT: Approach the bench, gentlemen.
BENCH CONFERENCE:
THE COURT: What is the legal standard you’re suggesting? Because as far as I know the legal standard is going to be determined by what the psychiatrist and psychologists say—
CROW: (unintelligible)—
THE COURT: I know what you’re talking about on the stat—on that statute, it just says that there’s rebuttable presumption that below 65—
CROW: (unintelligible) it sets out exactly the qualifications, it’s not dealt by IQ, it defines what mentally retarded is by the statute, your Honor. It says if it’s this, this and this, it is—
STIDHAM: Legislature has defined it.
CROW: Legislature defined it, your Honor. I mean I don’t know any way around that.
THE COURT: Ok, let me see that statute.
CROW: Yes, your Honor.
RETURN TO OPEN COURT
THE COURT: All right, ladies and gentlemen. We’re gonna take a ten minute recess with the usual admonition not to discuss the case with anyone.
