Diminished Capacity

by Stephen Penner

  “Like in an industrial accident?” Brunelle asked.

  “Similar to industrial accidents I’ve seen,” Tucker responded, “but no. This was no accident.”

  “How do you know?”

  “As I mentioned earlier, I’ve conducted many, many autopsies on people who have died from head trauma attributable to accidents. Not just industrial factory mishaps, but also things like vehicle accidents.”

  “Like trains?” Brunelle suggested.

  “Yes, like trains,” Tucker agreed.

  “Was the injury in this case caused by a train?” Brunelle asked. “The victim was found on a train track after all.”

  “Being struck by a train is a single large impact,” Tucker explained, “followed perhaps by additional smaller impacts if the body is thrown by a train, rather than being crushed under it. But here, there were multiple, repeated blows to the same location on the skull. Trains don’t do that.”

  “Who does that?”

  “People do that,” Tucker said. “Also, there were contusions in the pattern of a boot sole. Trains don’t wear boots.”

  “How many blows to the head were there?” Brunelle asked.

  “I can’t say for sure,” Tucker answered. “They were right on top of each other, and they also interacted with the injuries to the face. The subject’s nose was broken, again from blunt force trauma. I can say, based on the number and location of the fractures to the face, that there was more than one blow, probably more than two, but the collapse of the skull also damaged the facial bones. For example, the fractures to the orbital bone around his left eye may have been caused from punches to the face prior to the skull collapsing or may have been caused by the collapse of the skull itself.”

  Brunelle nodded for a moment, then continued. “Skulls are pretty strong, aren’t they?”

  “Yes, sir,” Tucker agreed. “They need to be. They protect the brain, which is the single most important organ in the body.”

  “How much pressure would it take to break a skull?”

  “Do you mean a fracture?” Tucker asked for clarification. “Or to completely break it? It wouldn’t take that much pressure to just fracture the skull, but that’s sort of the point. It can take a lot of punishment and not give way. Maybe the best way to illustrate it is to consider what happens when a bullet strikes a skull. It is not at all uncommon for a low caliber bullet, like a .22, to actually bounce off the skull. It’s that strong. Even a larger caliber bullet that’s able to penetrate the skull usually loses so much of its momentum from that initial impact that it’s unable to exit the other side of the skull and the bullet will come to rest inside the brain.”

  “You can’t just accidentally crush someone’s skull?” Brunelle summarized.

  “I would say no,” Tucker answered. “Certainly not in this case.”

  “How many times did the killer stomp on Mr. Holloway’s head?”

  Tucker thought for a moment. “Hard to say. More than once. Probably more than twice.”

  “More than three times?” Brunelle asked.

  “Probably,” Tucker agreed.

  “More than four times?”

  “Yes, probably.”

  “More than five times?”

  “I would think so.”

  “More than six times?”

  Robyn finally interrupted. “Objection, Your Honor. The witness is now just guessing.”

  Whitaker nodded. “Sustained. Point made, counsel,” she said to Brunelle. “Move on.”

  “And the killer, whoever he was,” Brunelle asked the doctor, “he would have had to regain his balance after each stomp and then ready himself to stomp again, correct?”

  “I would think so, yes,” Tucker agreed.

  “Once the skull gave way, was survival at all possible?”

  Tucker shook her head. No. It was absolutely fatal. The fractured nose, the broken orbital bone—those were treatable, survivable. But when a person’s skull caves in, that person is dead.”

  “Thank you, Dr. Tucker,” Brunelle said. “No further que—” he started, but then stopped himself. “Wait. I do have one more question.”

  The question about threats. But it really made no sense any more. And it would be a strange way to end what had otherwise been an effective direct exam. It would take the jury away from where they were at that moment—down on those railroad tracks, in that autopsy room. So, Brunelle asked a different question. One that would tell Robyn not only that he knew her game, but that he’d beaten her at it.

  “Dr. Tucker,” he said, “when something breaks like that, after so many blows—after so much abuse, and pain, and anger, and mistakes, and regret—when it breaks after all that, there’s really no way to put it all back together, is there? No matter how much you might claim to want to, right?”

  “Uh…” Tucker hesitated. “I’m not sure about mistakes and regret, but no, once a person’s skull is crushed, there’s no putting it back together.”

  Brunelle nodded at the answer. He turned back toward the prosecution table, locking eyes with Robyn for a long moment, before breaking his gaze away. “No further questions.”

  Judge Whitaker looked down at Robyn. “Any cross-examination?”

  “Oh, yes, Your Honor.” Robyn stood up with force.

  “Dr. Tucker.” She marched toward the witness stand. “Isn’t it also true that sometimes things break, not from intent but from neglect? Not from a single intentional blow, but from a hundred reckless ones? Because you think it’s strong enough until suddenly it isn’t. And it’s too late to put it all back together. Isn’t that how some things break, Dr. Tucker?”

  Tucker took several seconds before answering. “Are we still talking about Mr. Holloway?”

  Robyn drew herself up. “Yes,” she insisted. “Of course. What I mean is, um, even if Mr. Pollard did kick Mr. Holloway’s head several times, that alone doesn’t prove an intent to kill, does it?

  “Maybe,” she turned and looked back at Brunelle, “maybe he just wanted to hurt him, but he went too far.”

  Dr. Tucker hesitated again. “I can’t say what your client was thinking when he did this, but I can say, the number of impacts, the force of those impacts, and the location of those impacts, all point to an actor who knew, or should have known, he was going to kill that man. And that’s exactly what happened.”

  “Should have known,” Robyn repeated. “With hindsight, sure. But isn’t that what regret is all about? Doing something you didn’t mean to do?”

  “Or doing something you did mean to do,” Tucker replied, “but not realizing what the consequences would be.”

  Robyn thought for a moment. “Yeah,” she said. “That.”

  She turned away. “No further questions, Your Honor.”

  “That was weird,” Carlisle whispered to Brunelle.

  “I know, right?” he responded in his own whisper.

  “I mean now everyone in the courtroom knows you guys used to fuck,” Carlisle said.

  “What?”

  “Any redirect examination, Mr. Brunelle?” Judge Whitaker asked.

  “Uh…” Brunelle looked to Carlisle.

  “I wouldn’t,” she advised in a hushed voice. “Unless you want to start talking about your guys’ favorite position or role play or whatever. ‘Cause that’s about the only thing left that’s not out in the fucking open right now.”

  Brunelle nodded, then stood up. “No questions, Your Honor.”

  “I knew it,” Carlisle whispered as Brunelle sat down again and the judge turned to excuse the witness.

  “Knew what?” Brunelle asked.

  “There was role play.”

  “Wow. Seriously? Just shut up about that.”

  “No, you shut up,” Carlisle chuckled. “I have to talk to the judge.”

  She stood up for the judge’s question.

  “Does the State have any further witnesses, Ms. Carlisle?”

  “No, Your Honor,” Carlisle answered. “The State rests.”


  CHAPTER 36

  It was local practice, and just professional courtesy, to allow the defense to start their case the morning following the State resting its case, even if that meant adjourning early for the day. One reason was that it could be difficult to know exactly how long any particular witness might take. Multiply that by a few dozen witnesses and there was really no way to predict exactly when the State would rest and the defense would be expected to put on its witnesses, if any. Instead, it made more sense to wait until the prosecutor actually said the magic words, then give the defense a half day to gather their case together before having to present it to the jury.

  The other reason was that even if everyone could predict more or less when the State would rest, the defense could wait until then before making the single most important decision any defense attorney could make: whether to put their client on the stand. And every defense attorney wants a night to think that over.

  “Do you think he’ll testify?” Carlisle asked Brunelle when they got back upstairs to his office.

  Brunelle considered for a moment. “No. She won’t put him on.”

  “Why not?’ Carlisle asked.

  “Too risky,” Brunelle answered. “We’d get to cross him. But Robyn can get everything she needs to the jury without exposing Pollard like that. Sanchez can tell them everything they need to know.”

  Carlisle frowned and shook her head. “Yeah, but that’s not the same as the defendant saying it.”

  “Agreed. But it’s a lot less risky. Sanchez can handle whatever cross-exam we throw at him. Pollard is likely to say something he doesn’t even realize undermines his defense. Plus, there’s no way to know how he’d react under cross-examination.”

  “So he explodes,” Carlisle considered. “So what? Wouldn’t that be good for them? Show how intermittently explosive he is, or whatever?”

  “Maybe,” Brunelle agreed. “But she won’t put him on.”

  “How can you be so sure?”

  “Because she wouldn’t be in control,” he answered. “And she always wants to be in control.”

  Carlisle laughed. “So I was right about the roleplay, huh?”

  But Brunelle just smiled faintly, his eyes distant. “It wasn’t a role.”

  CHAPTER 37

  The one prosecution witness Brunelle and Carlisle didn’t call in their case-in-chief was the good doctor, Alastair Mount. He was on board and ready to testify about the general unreliability of the entire field of psychology. But before his testimony would be relevant, Robyn had to put on evidence of her client’s supposed psychological disorder. Enter Dr. Nicholas Sanchez. Literally.

  Sanchez walked into the courtroom the next morning, immediately after Robyn stood to announce, “The defense calls Dr. Nicholas Sanchez to the stand.”

  And Dr. Mount sat in the front row to listen to his testimony. Standard procedure with dueling experts.

  Whitaker swore Sanchez in and a minute later was having him introduce himself to the jury. Degrees, residencies, clinical experience, forensic experience, current position and duties. All very impressive. If you were into that sort of thing.

  “Do you have a particular area of specialization?” Robyn asked him.

  “My area of focus is disruptive, impulse-control, and conduct disorders.” Sanchez turned and gave his answer to the jury. All professional witnesses knew to do that. It seemed awkward since the lawyer was the one asking the questions, but jurors consistently talked about how they appreciated a witness talking to them directly.

  “Would you consider yourself an expert on disruptive, impulse-control, and conduct disorders?” Robyn continued.

  Again he responded directly to the jurors. “Yes. I have testified multiple times as an expert witness on the subject of disruptive, impulse-control, and conduct disorders.”

  Brunelle frowned, but only a little, lest the jury see it. The truth was, Sanchez was an expert, and he was going to say Pollard suffered from a conduct disorder. He was going to do a lot of damage to their case, and all Brunelle could do right then was sit there and take it.

  “All right then,” Robyn got to it. “Let’s start there, shall we? What exactly is a conduct disorder?”

  “The Diagnostic and Statistical Manual of Mental Disorders,” Sanchez told the jurors, “published by the American Psychiatric Association, indicates that disruptive, impulse-control, and conduct disorders manifest in behaviors that violate the rights of others and/or bring the individual into significant conflict with societal norms or authority figures.’”

  “Are there different kinds of conduct disorders?” Robyn continued. She was reading from a script of questions, probably provided by Sanchez himself. Not only did he know what the next question would be; he wrote it.

  “Yes,” he answered. “There are eight disruptive, impulse-control, and conduct disorders listed in the DSM-5. This includes general conduct disorder and unspecified conduct disorder.”

  ”What are some examples of these disorders?”

  “One of the better-known disorders,” Sanchez answered, “at least outside of psychology circles, is antisocial personality disorder. In addition, kleptomania and pyromania are defined as disruptive, impulse-control, and conduct disorders.”

  “What about intermittent explosive disorder?” Robyn ventured recklessly.

  “Yes,” Sanchez confirmed with a confident nod to the jurors. “Intermittent explosive disorder, or I.E.D., is also a conduct disorder.”

  Having completed the setup of her expert, and the setup of disruptive, impulse-control, and conduct disorders generally, it was time for Robyn to delve into the particular disorder she had based her entire defense on. “Are there specific diagnostic criteria that help you determine whether a given individual has I.E.D.?”

  “Yes, there are,” Sanchez answered to no one’s surprise.

  “First, perhaps you could tell the jury what is meant by ‘diagnostic criteria’,” Robyn encouraged.

  “Of course,” Sanchez agreed. “When trying to determine whether a given person has a given mental disorder,” he explained, “we look for certain behaviors or thoughts or actions. All of those behaviors, thoughts, or actions are what we call diagnostic criteria. If a person presents with enough of those criteria, or certain criteria in a certain combination, then we are able to diagnose the person as having that particular disorder.”

  “Dr. Sanchez, what are the diagnostic criteria for I.E.D.?” Robyn read from her script.

  “Well, first, it’s important to understand,” Sanchez cautioned his juror-students, “that not all of these criteria need to be present to be able to make a diagnosis. In fact, it’s very unusual for any individual to present with every possible criteria. Instead, we look at the entire individual and all of their behaviors, and if there are enough criteria met, we can make the diagnosis, even if not all of the criteria are met.”

  “So, again, Dr. Sanchez,” Robyn repeated, “what are the diagnostic criteria for intermittent explosive disorder?”

  “There are several,” Sanchez again hedged. “The first is recurrent behavioral outbursts representing a failure to control aggressive impulses, as manifested by verbal or physical aggression or outbursts involving physical injury or property damage. In addition, we look for things like the magnitude of aggressiveness being grossly out of proportion to the provocation, and that the outbursts are not premeditated.”

  “Thank you, Doctor.” Robyn turned the page. “Now, did you have the opportunity to perform a psychological examination of my client, Mr. Justin Pollard, as it relates to the current case?”

  Sanchez nodded. “I did,” he told the jurors.

  “Do you have an opinion,” Robyn asked, following a different script—the one from law school on how to lay foundation for an expert opinion, “as to whether Mr. Pollard suffers from intermittent explosive disorder?”

  “I do,” Sanchez answered simply. He knew the script too. It was the same for every expert in every court across the country
.

  “What is that opinion based on?” Robyn moved to the next required question.

  “My opinion is based on my in-person examination of Mr. Pollard,” Sanchez explained, “together with my review of the police reports in this case, including the autopsy report, as well as my own experience and expertise in the area of disruptive, impulse-control, and conduct disorders, like intermittent explosive disorder.”

  “So then, what is your opinion, Dr. Sanchez, regarding whether Mr. Pollard suffers from intermittent explosive disorder?” Robyn asked, even though everyone in the room knew what his answer would be.

  He turned to the jurors. “It is my expert opinion that Justin Pollard does in fact suffer from intermittent explosive disorder.”

  “I thought he didn’t like the word ‘suffer’,” Carlisle recalled with a whisper.

  “He didn’t like us saying it,” Brunelle whispered back. “He’s fine saying it himself. Poor Justin.”

  “Could you please explain,” Robyn soldiered on, “how you came to that opinion?”

  “Of course,” Sanchez was quick to agree. Again, he looked to his students. “As I explained earlier, I.E.D., like any mental disorder, is diagnosable if certain diagnostic criteria are present. Here, Mr. Pollard clearly presented for sufficient criteria to allow for the diagnosis of intermittent explosive disorder. Specifically, Mr. Pollard met the following criteria: three behavioral outbursts in a twelve-month period involving physical injury or property damage; a magnitude of aggressiveness grossly out of proportion to the provocation or any precipitating psychological stressors; the aggressive outbursts were not premeditated; and finally, the outbursts were associated with financial or legal consequences.”

  Sanchez didn’t get into details on the three ‘behavioral outbursts.’ It was a double-edged sword, and for both sides. If the jury heard details of his outbursts, especially the one involving the corrections officer’s handgun, they would be more likely to believe the diagnosis was based on facts, but they would also be less likely to want to acquit and release him for fear he might be violent in the future. If the jury didn’t hear the facts, they would have to trust Sanchez’s opinion without much factual support, but at least they wouldn’t hear that he’d stolen a guard’s gun and was only stopped by being shot.