“What happened?” she asked.
“I don’t know. We can’t talk to the jurors because the case isn’t over. I thought I had a promise from the Lord about an acquittal,” David said, discouraged. “I don’t know what to think.”
“How is Mac?”
“He’s focused on what we need to do next.”
“I’ll come straight to the courthouse.”
“Thanks. One of the bailiffs will show you where to wait.”
David returned to the courthouse with thirty minutes to spare.
“Are you ready?” Mac asked as soon as he sat down at the defense table.
David’s mouth suddenly went dry. “You want me to handle the witnesses we discussed?”
“That was our plan. You’re ready, and I’ll be here. The jury needs to see a new face; some of them apparently don’t like mine.”
“Okay,” David said.
“Let’s check on Pete before the judge reconvenes,” Mac said.
Standing outside the bars, neither of them asked how Pete felt. Their client sat with his head in his hands. He didn’t look up until Mac started talking.
“As we discussed the other day at the jail, David will take primary responsibility for the sentencing phase,” Mac began. “He’s done most of the preparatory work, and there is a possibility that some of the jurors have developed a negative reaction to me during the trial. I don’t want any bad feelings toward me to carry over into what lies ahead. I think it’s best for a fresh face and voice to speak on your behalf.”
“Okay,” Pete said, turning his head sideways so that he could look into David’s eyes. “I know you will do a good job.”
David tried to swallow, but there was nothing but cotton in his mouth. “Are you sure?” he asked.
“Yes. I know you’ll do your best.”
In the courtroom, the imaginary bell for round two sounded, and Joe Whetstone rose to his feet. “The State calls Dr. Louis Newburn.”
Taking a step toward the bench, David asked, “Your Honor, may we approach the bench?”
“Yes,” the judge replied.
Joe joined him in front of the judge. Mac came alongside David.
“We want to know whether Dr. Newburn has brought the patient records we subpoenaed,” David asked.
Joe walked back to the prosecution table and returned with a slim stack of papers that he handed to the judge. “Here they are. I renew my objection on the grounds that this is privileged information with no relevance to this case.”
“Your objection is noted.” The judge handed the sheets to David. “Proceed, Mr. Whetstone.”
The short, balding psychiatrist had a generous doughboy belly and entered the courtroom wearing a white medical coat with his name embroidered on the pocket. His eyebrows, permanently arched from years of peering over his glasses while listening to stories about the bizarre behavior of his patients, created an appearance of perpetual puzzlement and surprise.
Joe began by asking questions about Dr. Newburn’s educational and professional qualifications. During the introductory questions, Mac quickly scanned the patient list, looking for familiar names beginning with “H.”
“Dr. Newburn, did you perform a psychiatric evaluation of Peter Thomason, the man this jury has found guilty of murdering Angela Hightower?” Joe asked.
“Yes, I did.”
“Where and when was this evaluation performed?”
“Three weeks ago at the Echota County Jail.”
“Please tell the jury about your findings and conclusions.”
The psychiatrist knew how to communicate. He explained the reasons for his opinion that Pete had sociopathic behavior patterns based on significant antisocial tendencies. He dissected Pete’s troubled upbringing and identified factors that he claimed triggered violent, anti-authority behavior.
“Dr. Newburn, when the defendant testified before this jury, he did not exhibit any of the tendencies you have identified. Could you explain why?”
“Yes, I can,” the psychiatrist said. “The defendant has a level of conscious control that enables him to present himself in what a layperson would call a normal manner. He knows what he is doing; it is not outside the realm of his will to control. I’ve described his particular form of psychosis as ingenuous.”
“What does ingenuous mean?”
“In the defendant’s case, it means initially friendly, yet deceptive and homicidal. Mr. Thomason is able to act in a nonthreatening or even engaging manner, thus winning the trust of those around him. Then, once a false sense of trust is established, the door is open for him to act out his violent behavior in a way he hopes will avoid detection by the authorities.”
“How does this relate to Angela Hightower’s death?”
“It explains the entire sequence of events.” Dr. Newburn held up his fingers and counted off the ways Pete set the stage for Angela’s murder. “He established a friendly relationship with Angela in June, won her trust and that of her parents during the next few weeks, lured Angela into a situation where she was isolated from help, murdered her, and then attempted to make the murder look like a tragic automobile accident.” He closed his fist.
Joe moved closer to the jury. “Do you have an opinion about the danger Peter Thomason poses to society in the future?”
“Yes, I do.”
“What is your opinion?”
“His predisposition to violence is deeply ingrained. I am not aware of any treatment program with a statistically significant success rate for individuals with his diagnosis. He should be isolated from the general prison population and if released from custody would pose a real threat to kill and kill again. Angela was his first identified victim. There may have been prior victims, and if he is in contact with the general population the likelihood of additional homicides would be significant.”
David stood. “I object to that as speculative, Your Honor.”
“Overruled. He can express his opinion, and you can cross-examine him.”
“What other murderers have had similar psychological profiles?” Joe continued.
Still standing, David objected again. “Your Honor, Dr. Newburn is not qualified to testify about people he hasn’t evaluated.”
Joe responded. “Dr. Newburn has studied evaluations performed by other psychiatrists on serial killers and can render a comparative opinion about the defendant.”
“Objection overruled.”
“Go ahead, Doctor,” Joe said.
“I have closely evaluated nonpublic case studies of serial killers like Theodore ‘Ted’ Bundy and David Berkowitz, the ‘Son of Sam’ killer. Their profiles are markedly similar to Peter Thomason’s.”
“Thank you, Doctor.”
“Judge,” David said, “May I have a few minutes to discuss the patient list with Mr. McClain before I begin questioning the witness?”
“Yes. I’ll give the jury a short break.”
Mac and David huddled at the defense table.
“There’s not a Hightower on any of these sheets,” Mac said.
“Are you sure?”
“I checked it twice during his testimony. None of the other witnesses for the State is here, either.”
“What do I do?” David asked anxiously.
“Go with what you prepared.”
When the jury returned, David, feeling much less confident in the courtroom than he had in the security of his bedroom the night before, began the second attempt at cross-examination in his young legal career. He stood behind a small podium near the jury box. A legal pad covered with neatly written questions lay in front of him.
“Dr. Newburn, did you perform any psychological tests when you evaluated Mr. Thomason?”
“I utilized a comparative clinical interview.”
“Could you list the psychological tests you performed?” David asked again.
“I utilized a comparative clinical interview.”
“Is that a psychological test?”
“It is an indicat
or of psychological status.”
“Is it a uniform test that can be given to people and the results compared with other tests?”
“No, it is not a multiple choice or fill-in-the-blank test,” the doctor said with a hint of condescension in his voice. “It depends on the experience and expertise of the psychiatrist performing the interview.”
“An interview means you talk to someone, correct?”
“Yes, talk with a diagnostic goal in mind.”
“So, during your time with Pete Thomason, the two of you were sitting in a room talking.”
“Yes.”
“For how long?”
“Three hours.”
“Did you do anything else beside talk?”
“No.”
“Did he cooperate in answering your questions?”
“Yes.”
“Did he threaten you or exhibit any of the violent antisocial behavior you claim he has while you were having your three-hour talk?”
“No, but that is consistent with my diagnosis.”
“An ingenuous psychopath?”
“That’s just a descriptive term.”
“I see.” David decided to venture out from behind the safety of the podium. Leaving his notes behind, he took a few steps toward the witness. “Am I correct in saying that an ingenuous psychopath is someone who is a psychopath but doesn’t act like one when you meet him?”
“Unless you meet him on the wrong day,” the doctor pointed out.
David changed directions. “What is the DSM IV, Dr. Newburn?”
“The Diagnostic and Statistical Manual, Fourth Edition.”
“Who uses the DSM IV and why do they use it?”
“Mental health professionals use it. It lists the different types of mental disorders and conditions with information about them.”
“Is ingenuous psychopath listed in the DSM IV?”
“No, but I think it is a concise, accurate way to categorize the defendant’s mental condition.”
“So your diagnosis of Pete’s condition is something you made up?”
“No.” A little color appeared in the psychiatrist’s thick neck and spread up into his cheeks. “It is analogous to other antisocial, psychotic conditions, but it has its own unique characteristics.”
“Would one of those characteristics be your convenient ability to diagnose the condition even when an individual demonstrates no obvious signs of psychotic illness?”
“No, that’s the purpose of the clinical interview.”
David held up his hands. “I feel like we’re on a merry-go-round, Dr.
Newburn.”
“Objection,” Joe said.
“Ask questions, Mr. Moreland,” the judge said.
David crossed his arms in front of him. “Would you agree that the clinical interview is the primary basis for your opinion?”
“I was the only psychiatrist in the room at the time.”
“Is that a ‘yes’?
“Yes.”
“Did you record the interview?”
“No, that is not standard procedure.”
David looked at the jury while he asked his next question. “So there is no way for another psychiatrist to listen to the tape of the interview and decide if your yet-unrecognized diagnosis of ‘ingenuous psychopath’ was correct?”
“There is no tape recording. But another psychiatrist could reach the same conclusion using different terminology.”
David faced the witness again. “Would other psychiatrists consider the availability of other mental health records helpful in diagnosing an individual such as Pete Thomason?”
“Possibly.”
“Did you have any additional records?”
“No, none were provided to me.”
David went over to the defense table and picked up a folder. “Did you have the psychological test results from Dr. Anna Wilkes, the psychologist who tested Pete a week or so before your evaluation?”
“Oh, yes. I had those records, but they were not helpful.”
“Is the reason they weren’t helpful because they did not support the opinion you had already decided to give about Pete Thomason’s mental status?”
“Of course not. I reviewed the report.”
“Did you perform any of the same tests?”
“No. I’m not a psychologist.”
“I understand. You talk. Psychologists test, correct?”
“We have different types of training. I am a medical doctor; a psychologist is not. I have the ability to treat patients by prescribing medi- cation; a psychologist cannot write a prescription for even the mildest type of psychotropic drugs.”
“Speaking of drugs, are you familiar with gamma-hydroxybutyrate, or GHB?”
“Somewhat.”
David took several steps toward the witness. Keeping his voice low to avoid an objection from Joe Whetstone, he asked. “Dr. Newburn, were you aware GHB was found in Mr. Thomason’s system at the time of his arrest?”
“No.”
“What are the effects of GHB?”
“I’m not sure. It’s not a drug prescribed by psychiatrists.”
“Would it surprise you to learn that GHB causes confusion, temporary memory loss, and disorientation?”
“I’m not that familiar with it.”
“Dr. Newburn, is Spencer Hightower one of your patients?” David quickly switched gears in his questioning.
“No.”
“Where is your office located?”
“400 West Lenox Towers, Suite 358, Atlanta.”
“Can you explain why Spencer Hightower would visit your office on a regular basis?”
Perspiration appeared on the psychiatrist’s forehead, and he wiped his face with a handkerchief. “You would have to ask him.”
“I’m asking you.”
Dr. Newburn looked at Joe, who didn’t move.
“Uh, he’s a client.”
“I thought you had patients?” David glanced at Mac who raised an eyebrow.
“He’s not really a client or a patient.” The doctor shifted in his chair and looked up at the judge.
“What is he?” David took a step closer.
“I told you. He’s a client. Ah, I’m his financial advisor.”
David stopped in his tracks. “Dr. Newburn, are you a stockbroker, too?”
“No.”
“Are you a certified financial planner?”
“No.”
David came as close to the witness as he thought the judge would allow.
“Exactly what are you to Spencer Hightower, Dr. Newburn?”
“Well, you see,” the doctor hesitated, “I’m cotrustee of a trust set up by his father.”
Mac put down his pen.
David retreated to a spot near the jury box. “So you control his money?”
“Not really. Just some of it. I do it to help Spencer.”
“You’re on a first-name basis?”
“Yes.”
“Are you paid for your help?”
“Yes, there is a fee authorized by the trust.”
“How much were you paid last year?”
The doctor’s cheeks grew redder, and he wiped his face again with the handkerchief. “I don’t remember exactly.”
“Can you give an estimate?”
“It was less than $100,000,” he said, then quickly added, “but that had nothing to do with my evaluation of the defendant.”
David was silent for several seconds. “Dr. Newburn, are you being ingenuous with this jury? Friendly, yet deceptive?”
If it hadn’t been a murder trial, Mac would have burst out laughing.
“Objection, argumentative,” Joe said.
“Overruled. The witness will answer the question.”
“No,” the doctor said.
“So you’re saying there is no possibility whatsoever that your role as cotrustee of Spencer Hightower’s trust influenced your evaluation and opinion of Pete Thomason?”
“Yes.”
“That’s correct.”
David stared at the witness for several seconds before turning and walking back to the defense table. “No further questions,” he said.
37
Who shall decide when doctors disagree?
ALEXANDER POPE
Mac leaned over to David when he returned to the table. “The doctor will need a session with his own therapist after that cross-examination.”
David was about to ask Mac a question, when Joe said, “The State calls Alexander Hightower.”
His face set like granite and dressed in a dark blue suit, Angela Hightower’s father walked into the courtroom with the same air of authority that had dominated countless board meetings. But today, there was a crack in the Hightower coat of arms and a sense of brokenness in Alexander.
David’s dissection of Dr. Newburn may have encouraged his lawyers, but it didn’t move Pete. Still reeling from the verdict, he didn’t know how many more attacks he could stand before he had to jump and scream. He watched Alexander Hightower raise his hand to take the oath.
Before the start of the trial, Pete had only seen his former employer from a distance at the picnic where he met Angela and for a five-second handshake once when he came by to pick her up. Now, the most powerful man in Echota County had one desire—to hear a jury sentence Pete to death.
Alexander answered Joe Whetstone’s questions in a quiet, somber voice without looking in Pete’s direction.
“Angela was everything to us,” Alexander said. “I still wake up in the morning thinking she is asleep in her bed or that I will see her later in the day. Unless you’ve lost someone in your family, there’s no way to describe what you feel.”
Mac nodded imperceptibly. He knew.
“To say we’ll miss her sounds so inadequate,” Alexander finished.
“What do you want to say to the jury at this point?” Joe asked quietly.
Alexander looked directly at the jurors. “I want to thank them for the verdict of guilty. My wife and I could not have been able to endure the thought that our daughter’s killer could be walking the streets while Angela—” he stopped and looked away.
Joe waited for Alexander’s emotion and words to find a secure resting place in the hearts and minds of the jurors, then asked, “What about punishment?”
The Trial Page 32