CONTINUANCE OF IN CAMERA HEARING

THE COURT: All right, gentlemen, the Courts 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 Misskelleys likelihood or probability of having information suggested to him. In other words, Ill 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 hell be allowed to give that opinion. If that opinion is that he is suggestible, than Im 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 Im 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 thats recognized within the field. So, its a two-fold objection that Im ruling. One, I dont think its scientific. Two, if it is scientific, hes 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, thatd be a profferis 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, well 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, shes 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 intowhat he would have testified to about the results? I mean, just to tell the Court what he would

THE COURT: Why dont 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 its

STIDHAM: Gudjonsson Suggestibility Scale, your Honor.

THE COURT: Spell that, cause I sure couldnt 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, thats fine. Ive 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 Gudjonssons Suggestibility Scale?

WILKINS: I would have reported that I had given the scale and that the yield scores, as theyre known as, I would have given.

CROW: Would you have gone through thetalked 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 Courts 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 hes saying it wouldnt make any difference how I ruled.

STIDHAM: Wed 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 States gonna be permitted to go into the factual basis and go into all this stuff that weve just been spending twenty-five minutes on about how reliable are some of the test data.

STIDHAM: Your Honor, hes not gonna testify

THE COURT: But on the other hand, I dont want you all to go into tests that Ive basically said that I dont have much confidence in, but certainly his ability to administer the test might be appropriate.

CROW: Your Honor, his testimony is thatwhat he has proffered is that his opinion of suggestibility outsidetaking this test completely away, is that hes still suggestible.

FOGLEMAN: Then why was it even proffered in the first place?

CROW: Its 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 thats based upon their education, training and experience. What you wanted to do was introduce the actual test.

STIDHAM: Thats correct, your Honor.

THE COURT: Well, I mean he apparently is telling us now that it wouldnt have mattered, wouldnt have affected his opinionit would have been the same.

STIDHAM: He still has an opinion thats based not simply on what weve 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: Lets proceed.

(UNIDENTIFIED): Are we going to get the jury back in here?

DAVIS: Is that opinion based on any other test?

THE COURT: I dont know, thats something youll have to ask. Ive asked enough. Call the Jury back in, Im gonna let the Jury have a recess and Im gonna announce that question, gentlemen.

JURY RETURNS

THE COURT: All right, court will be in session. All right, ladies and gentlemen again Im going to apologize for having you pop up and down and the number of recesses weve taken but if youll remember back when we were picking the Jury I warned you that those interludes would occur and that theyre necessary and that theyre 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 youve 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 shouldnt give you any concern whatsoever in your consideration of this case. The Court had made that ruling and I simply didnt 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? Were ready to proceed, ladies and gentlemen, but Im tired, the court reporters tired and were 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 talkedpart of that comes from Jessies social history as weve been pointing out before and asin 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 dependentIm sorry when we look at abusing families, one of the things we see a lot of is whats called co-dependency. And by co-dependency were talking about people in the system taking responsibility for other peoples actions, other peoples feelings. In this case in terms of children, one of the things that they begin to look at and deal with is that somehow theyre doing something wrong, that theyre the fault of, that theyre 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 personthat 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 youve given here and at that time you had done eleven hours (of) examination, correct?

WILKINS: In terms of the information that wed dealt with, yes, at that time, basically the same.

DAVIS: So, your opinion that youre 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 didnt occur

DAVIS: Your Honor, Excuse me, your Honor were going to have to approach the bench on that one.

BENCH CONFERENCE

DAVIS: I had never heard this story before, but I think what hes getting readyhe, its some sort of creative test that he came up with where he created a false story and then, as I understand it hes gonna say that in ten minutes he had Jessie confessing to something in his office regarding some made-up story about

THE COURT: Well, Im not gonna allow that.

FOGLEMAN: I think he already testified to it, your Honor, and wed 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; youre 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 priorduring 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. Id have to look for the other oneslet me see if I can remember.

DAVIS: Ok, and this person that youve 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: Im 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: Its my understanding that theyve 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, Ill 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 hes proffered the question to the Court at the bench here is thats a legitimate premise that he can direct to the doctor and then ask him Is that in conformity with normal adolescent behavior? I mean youre talking about argumentative factor, which you can of course interject.

RETURN TO OPEN COURT

DAVIS: And Doctor, in your report initially, and Im 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 ispeople 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 wouldnt be inconsistent but it would not necessarily be consistent.

DAVIS: Nowyouve 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 objectivityor subjectivity on your part, excuse me.

WILKINS: Yes.

DAVIS: Ok. And the WAIS-R is the test that you use to determine the defendants IQ?

WILKINS: Yes.

DAVIS: And in that particular test, what was the performance IQ?

WILKINS: 75? Let meyes.

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 meyes I did. I need to find the records to find exactly what

DAVIS: Sure, Doctor, go ahead.

WILKINS: I cant remember (unintelligible). Yes, Im sorry. Ok, yes.

DAVIS: Ok, and what was that performance IQ in 1989?

WILKINS: 1989, uh, Im sorry, its not in this report. Ill have to dig out all the old evidence, I thought it was in this report and its 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 alsoprior 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 itsSocial 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, theyre non-verbal. Example is putting together puzzles. Being able toI show you a pattern of blocks and you have to build designs that match the pattern of blocks. Its 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 dont want to get too complicated cause I dont understand all this stuff, but I notice down here you said, lets see, you said he had a highor you said a mild elevation in the F scale.

WILKINS: Yes.

DAVIS: Ok. Now Doctor its 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 thats a mild elevation?

WILKINS: Its an elevation above normal levels.

DAVIS: Well dont they rank the elevationsas far as the T scale is concerned isnt that something thats 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 regardingMMPI 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 youre 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 dont know.

DAVIS: Ok. Well, in your report you said that because of that elevation in that T scalethat 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, doesnt 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 wasin your report instead of saying that, interpreting that to be malingering, you just discounted that and said that just didnt place any significance on it, correct?

WILKINS: I dont think thats what I said, but

DAVIS: Well you didnt 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 hes malingering on the test, or whether hes 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 aboutI asked you about the F scale, and in an MMPI theres 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 youre looking at a valid profile. If theyre 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 theyare they real or valid. Do they look like thethat theyrethat 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 highvery 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 thats either indicative of malingering or not understanding the questions?

A. Yes.

Q. And then you go on to draw nearlywell

A. And all I said again is thatis thatis thatusuhthat we need tothat 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 ayou would not depend on them?

A. Right. Right.

Q. Now, you also gave whats called a Bender Gestalt?

A. Yes.

Q. What iswhat in the world is a Bender Gestalt?

A. Thats a series ofof nine stimulus pictures you have

1484

a person copy.

Q. So if Im givingyou show me a picture if Im 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 aboutlets seeyou 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. Somesome of the drawings have dots and lines, and the tendency to not be able to stopstop with the drawing and not going on. Theuhuhline quality refers to light, dark line qualities.

Q. And didnt you note in your report, also, that the defendant seemed to have a tremor or shake in his hands?

A. Yes. Yes.

Q. Okay, wouldnt that affect the validity of the results you get on a Bender Gestalt

A. It may well

Q. If the persons kind of got a shake to their hand?

[MISSING TRANSCRIPT PAGES 1485 & 1486]

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. Uhin terms of the tree itselfit look phallic.

Q. Wait. Wait. Wait a minute. Is that picture the one youre saying? (INDICATING.)

A. (EXAMINING.) Yes. Yes. Um-hum.

Q. And now, is this

A. The fact that its a large chimney, yes. It deals with over-concern with sexuality.

Q. Okay. Thatthat 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 States Exhibit whatever?

THE WITNESS: My ethics require they only go to somebody who is licensed to look at them.

THE COURT: Well, Im going to overrule that and Im going to allow it to be received into evidence.

1488

(STATES 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 haswhat was thatwith sexuality?

A. Over-concern. (MARKING.)

MR. DAVIS: Your Honor, Ill just make these a composite exhibitStates Exhibit whatever the number is.

THE COURT: And, gentlemen, if theres 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 thats what the doctor was referring to, your Honor.

THE COURT: Well, I think thats what it was, too. And thatunder these circumstances youre proffering the witnesstheyre 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.

(STATES EXHIBIT NUMBER ONE A IS EXHIBITED TO THE JURY.)

BY MR. DAVIS:

Q. Now, I underis 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 thats not like R-A-T, thats like W-R-A-T, right?

A. Right.

Q. Okay. What is that?

A. Its 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 youre actually measuring is his performance and not his ability to function?

A. In any test youre 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 thats just exactly what they did?

A. Surely.

Q. Now, the next test, the REY. Its 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 fairyou 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 theyre 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 thats what you found out, correct?

A. Yes.

Q. In other words, you didthe 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 couldnt find that in my book. What is that?

A. Thatsthats a drawing designed toa test designed by Edith Cappa at Boston University.

Q. Okay. What do we do when we take that test?

A. Thats basically you have the person draw you a clock and they put thethey put thedraw 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 atatdo theycan they conceptualize the timecan they recognize a fairly accurate perception from memory of a fairly common object.

Q. What result did you getI dont see anythingin there anything in your report about your clock test?

A. Maybe theres notthere should have been. (EXAMINING.) Uhthat must have been overlooked. It is notit was fairly normal.

Q. Oh, okay.

A. So Ijust 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 didnt tell you much of anything?

A. No.

Q. Okay. What about this biyou indicated there was a bicycle drawing test?

A. Yes. You justyou 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 designshe go to draw some designs from memory. Uhuhgot to do the WAIS-R, go to do the MMPI, got to do a achievebasic achievement

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test in reading, spelling, and arithmetic, go to do a Rorschach test.

Q. Whatwhat about the bicycle drawing test. You said in here its indicative of Jessies 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 Ilet melet me see if this is right. You show him a bicycle?

A. No, I dont 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 its a good lookingI mean, how do you evaluate what

A. Uhuhuhuhtheres 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 thats another basis that your opinion rests on?

A. Yes.

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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. Okayon that test there was not

Q. Okay. And the Rorschach is kind one of the cornerstones of psychology. Isnt that true? I mean one of the real

A. Forfor certain people, yes.

Q. Okay. Well, its the ink blot test, right?

A. Yes.

Q. Okay.

A. Behaviorists would call it absolutely worthless so it depends upon what field youre in.

Q. And as far as Jessie was concerned there was no indication of psychopathology. What does thatwhat is psychopathology?

A. Uhuhpsychiatric illness.

Q. Youve 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 himthe Kohlbergs Moral Development?

WILKINS: Yes.

DAVIS: Are those standardized tests?

WILKINS: Standardized in the sense theyre fairly widely used and that there is athere are scoring instructions and manuals for them.

DAVIS: There are validity scales to determine whether youre getting valid results or not?

WILKINS Not in the same way there are for the MMPIor not in the same for MMPI.

DAVIS: Ok, so you dont know if the person is actually putting forth any effort or whatever when theyreor whether theyre actually attempting honestly to answer your questions or respond to that test?

WILKINS: You never know that.

DAVIS: But some of these standardized tests actuallylike 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 stuffthe stuff with the play dough?

WILKINS: Yes.

DAVIS: Ok. That is to designis to determine kind of whether the person is a concrete thinker or not, right?

WILKINS: That one is designed to test whats called concept assessment, yes. Whether theyre concretewhether they can form concepts or not. (unintelligible) of matter, primarily.

DAVIS: Its designed to determine the difference between abstract thinking and concrete thinking

WILKINS: In broad terms, ok.

DAVIS: Ok. And theres nothingprobably at least half the population, to some extent, are what are called concrete thinkers, wouldnt you agree?

WILKINS: Yes.

DAVIS: Ok. So I mean the fact that the test indicated this defendants a concretehas concrete thought patterns

WILKINS: Not in the same way, no. Im saying that theres 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 occurredhe knew what criminal conduct was and he knew you shouldnt do it?

WILKINS: Yes.

DAVIS: Now as I understand it, based on your evaluation you did notin 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 youwould 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: Thats precisely the reason for the diagnosis, yes.

DAVIS: Ok, so nothing

WILKINS: Thats 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 thats NOS, is that correct?

WILKINS: Yes.

DAVIS: And that means that he didnt fit any of the normal diagnoses, thats just kind of catch-all, right?

WILKINS: He had trouble with some reading, some writing, thosethings we would expect normalsomebody his age to have done better at.

DAVIS: And doesntisnt the DSMR-III, which is yourkind of the Bible of psychology, doesnt that tell you that you dont make those NOS diagnosesyou be very careful with those

WILKINS: Yes

DAVIS: Because those are real borderline?

WILKINS: Yes.

DAVIS: In fact, its a real close call between a diagnosis and somebody whos normal?

WILKINS: Not necessarily.

DAVIS: But

WILKINS: It may mean that they dont fit neatly into any one category.

DAVIS: But the manual, the DSM-III tells you you dont 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 dont think theres any extra caution on that one.

DAVIS: So letknew 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 wasnt 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: WhichDoctor, let me ask you which one of these tests that weve 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 isis that

WILKINS: Yes.

DAVIS: Ok. And so basically thats not a result of any test, thats just kind of a gut feeling you have based on your experience and expertise?

WILKINS: Yes.

DAVIS: No further questions.

CROW: Doctor, Ill 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, wasnt it? Let me make sure what I said.

CROW: I think thats correct, Doctor.

WILKINS: 72.

CROW: Scores were consistent?

WILKINS: Yes. Theres 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. Thats all I have, Doctor.

THE COURT: Anything else?

DAVIS: You yourself didnt 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, thats using a psychological standard?

WILKINS: Right.

CROW: Its not applying any kind of legal standard?

WILKINS: No.

DAVIS: Judge, to my knowledge therefor the purposes of this trial there is no legal standard. Its the

CROW: I believe there is, your Honor. (unintelligible)

THE COURT: Approach the bench, gentlemen.

BENCH CONFERENCE:

THE COURT: What is the legal standard youre 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 youre talking about on the staton that statute, it just says that theres rebuttable presumption that below 65

CROW: (unintelligible) it sets out exactly the qualifications, its not dealt by IQ, it defines what mentally retarded is by the statute, your Honor. It says if its this, this and this, it is

STIDHAM: Legislature has defined it.

CROW: Legislature defined it, your Honor. I mean I dont 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. Were gonna take a ten minute recess with the usual admonition not to discuss the case with anyone.

END OF AUDIO