When this column first appeared exactly nine years ago, reference was made to the nature of “techniques and arguments commonly employed” by testifying psychiatric and psychological experts. Let’s examine how a prosecutor might consult with a reputable mental health professional about less-than-optimal techniques for managing such testimony in the context of a trial competency hearing.
Prosecutor: Are you ready to defend your helpful opinion during next week’s hearing?
Doctor: Helpful to whom?
Prosecutor: Helpful to the judge who finds a clearer path to a just decision. Helpful to other people who won’t be subjected to what the victims in this case had to endure. Frankly, helpful to the defendant.
Doctor: How so?
Prosecutor: I don’t have any illusions that this person is going to be breaking rocks in the prison yard, tethered to a ball and chain, like in some old-time movie. They’ll be in the prison hospital, getting the help I don’t mind admitting they need. The sooner this happens, the sooner everyone breathes easier at the county jail . . .
Doctor: . . . and the sooner the county jailer gets off your back.
Prosecutor: Precisely. You’re reading my mind.
Doctor: It’s a living. Tell me: What’s the reading level of the average juror?
Prosecutor: You’re the social scientist; shouldn’t you know?
Doctor: What matters to me right now is what you think it is.
Prosecutor: Everything I’ve heard says they tend to have an eighth grade reading level.
Doctor: What about everything you’ve read?
Prosecutor: Those bar journal articles are written at a 10th grade reading level, so I’ve never been able to get through one.
Doctor: Fair enough. What’s the reading level of the average district court judge?
Prosecutor: Okay, doc. Now I’m going to read your mind. This is about yesterday morning’s hearing, isn’t it?
Doctor: This is about yesterday morning’s hearing.
Prosecutor: I hear my assistant roughed you up a bit. Look, one of the biggest reasons we like to hire you—in addition to the whole not lying thing—is that you work on both sides of the aisle. However, do you think that just because we all use you, we’re supposed to pull our punches when facing off with you in court?
Doctor: Of course not!
Prosecutor: Is it just not wanting to lose?
Doctor: No, it isn’t! You’re the ones who “win” or “lose,” and in any event, here’s a news flash: You lost.
Prosecutor: You’re kidding me.
Doctor: Check your email. The judge ruled half an hour ago, and the clerk just sent around a copy of the decision.
Prosecutor: I’ll go check.
Doctor: I can tell you why you lost, too.
Prosecutor: Because the judge felt sorry for you?
Doctor: What the judge felt was bored.
Prosecutor: Did you read the judge’s mind too?
Doctor: I brilliantly inferred this from the judge’s following statement: “Let’s move on; I’m bored.” I’m not making this up.
Prosecutor: What exactly happened?
Doctor: So, I take the stand, and defense counsel starts asking me questions.
Prosecutor: Pretty unorthodox, if you ask me.
Doctor: “What is your full name? Please state your profession. Where were you educated? How did you become involved in this matter? Are you licensed or certified to perform these services? Did you have an opportunity to meet with my client?”
Prosecutor: So far, I get the “bored” part. Nothing personal, but I think our judge has heard where you went to school literally hundreds of time.
Doctor: At this point, your assistant jumped in and offered to stipulate to my credentials and agree that I could be considered an expert in forensic mental health. Frankly, if I were prosecuting, I would have sat on my hands and let the defense drone on about this stuff so the judge could blame them for wasting too much time.
Prosecutor: Me, too.
Doctor: After that, we just marched through a rather brief report. I pointed out that the defendant knew some things, and didn’t know other things.
Prosecutor: There are few things I find more annoying than an evenhanded opposing expert.
Doctor: Testing? A fair amount. The defendant passed two different tests that were designed to screen for malingering.
Prosecutor: Even more annoying.
Doctor: The defense had gotten an investigator to root around for all sorts of records.
Prosecutor: Of course they did.
Doctor: These records showed that the defendant’s IQ had been found to be below 70 on half a dozen separate occasions between kindergarten and when the defendant dropped out of the ninth grade at the age of 17.
Prosecutor: Of course they did.
Doctor: Defense counsel asked for my opinion, which was “incompetent to stand trial, unlikely to attain competency within the foreseeable future.”
Prosecutor: Okay, so you and your waltz partner decided this was an open-and-shut mental health case. Why would you blame my assistant for coming straight at you at that point? It’s clear you’re still sore about it.
Doctor: I am, but not for the reason you think.
Prosecutor: Were you late for another appointment?
Doctor: Your assistant wasted everyone’s time by carrying on as if there were a jury in the room. Don’t get me wrong: I think that a vigorous cross-examination is what every witness should expect, and what every retaining attorney should prepare to repair on redirect.
Prosecutor: But you get paid by the hour.
Doctor: Realize that everyone had a copy of my report in front of them and was following along. Despite this, the report was misquoted . . . several times. This wasn’t just your assistant stumbling over the big words.
Prosecutor: Were you made to account for the things that the defendant got right?
Doctor: Sure, but not in a way that made any sense. Let me give you an example. “So, doctor, the defendant knew that the judge ‘runs the courtroom.’ That’s a pretty good answer, isn’t it? Clearly the defendant understands the judge’s role, right?”
Prosecutor: What was your response?
Doctor: “Only if we ignore the second half of that sentence, where the defendant claims the judge does this ‘as a means of covering up a role as Attorney General of the FBI, the CIA, and the Navy Seals.’” Bear in mind that defense counsel had already brought out that quote on direct.
Prosecutor: I’m beginning to get the picture.
Doctor: I get it when there’s an unsophisticated jury present, the members of which find all of this confusing, and who may be impressed by the notion that “wait a minute, the defendant got some of the answers right.” I’m convinced, however, that by trapping the judge on the bench and running through an overblown routine that impressed no one, your assistant blew a big opportunity to walk away with a win.
Prosecutor: Especially with a defendant who was facing such a horrendous collection of charges. I’ll start looking into this.
Our readers were also promised a “balanced approach,” so here goes: No one should assume that counterproductive courtroom histrionics are the exclusive province of the prosecution. Please feel encouraged to contact Dr. Drogin with any questions about competency hearing techniques, or with any suggestions for future topics.
