Diminished Capacity Page 17
He’d start big picture, but narrow the scope quickly to the particular disorder Robyn was trying to use to walk her client on a murder charge.
“Could you explain,” Brunelle began, “some of the ways in which psychology departs from the so-called hard sciences when it comes to the scientific method?”
“Yes,” Mount replied simply. “Psychology doesn’t use the scientific method.”
More murmurs from the jury box.
“How do you mean?” Brunelle quickly followed up.
“In the scientific method,” Mount explained, “one formulates a hypothesis, empirically tests deductions drawn from the hypothesis, and refines or eliminates the hypothesis based on the empirical findings. Repeatability and falsifiability are central to the scientific method. One must be able to achieve the same results for the same hypothesis no matter how many times the experiment is conducted. One must also be able to prove the hypothesis false. If the original hypothesis can never be proved true or false, then it is not scientific. With very few exceptions, psychology does not truly employ the scientific method.”
“Okay, good, thank you,” Brunelle checked another bullet point off his list/script. “Now I’d like to focus in on the specific idea of conduct disorders. What is a conduct disorder?”
“Well, again,” Mount started, “that’s a psychology term, so whether conduct disorders even exist at all is very much an open question. In fact, conduct disorders are a relatively new invention, at least when compared to more well-known disorders like schizophrenia. It used to be that we just said people like that couldn’t control their temper. Now, we—or rather, the psychologists—try to categorize and label and explain it as something more than that.”
“But certainly these labels have some value?” Brunelle challenged. It was never a bad thing to challenge your own witness, so long as they could respond to the challenge. It put some distance between the advocate and the expert.
“Minimal value,” Mount insisted. “Because, again, psychology doesn’t apply any scientific methodology to its claimed diagnoses. And you can see this by the fact that everything keeps changing. Until relatively recently, mental disorders were categorized by what the psychologists called ‘axes.’ So, for example, schizophrenia was an Axis I diagnosis. Then, they came out with the DSM-5 and changed everything. As its name suggests, there have been four prior DSMs. DSM stands for the ‘Diagnostic and Statistical Manual of Mental Disorders’, which sounds very official, very scientific, except that it isn’t. After decades of classifying mental disorders by axis, the DSM-5 just discarded that completely and now says schizophrenia is a personality disorder, and then divided the personality disorders into four so-called clusters. ‘Cluster.’ Can you believe that? They break all of these personality disorders into subgroups based only on how they kind of cluster around each other when it comes to similar symptoms.
“Not only is that hardly scientific, it casts serious doubt on the writings—and testimony—of any psychologist who ever wrote an article or told a jury that a particular person absolutely, definitely, one hundred percent suffered from an Axis I diagnosis. Because now there’s no such thing. That would be the equivalent of testifying a thousand years ago that the Earth was flat. Just because everyone agreed with you, doesn’t mean you were right.”
Brunelle nodded, looked down at his legal pad, and stole a glimpse at the jury. If nothing else, they were interested. There were definitely crossed arms and dubious expressions, but everyone was paying attention.
“Isn’t it normal for a scientific discipline to refine its theories as it gains more information?” Brunelle challenged.
“Sure,” Mount agreed, “if those refinements come from actual scientifically obtained data. But psychology doesn’t do that. Rather than require repeatability and falsifiability, every theory is left unchallenged, and psychologists just try to decide if enough people think it’s probably right. I mean, in order for a particular diagnosis to appear in the DSM-5, it requires no more than a fifty-one percent vote of the members of the American Psychiatric Society. That means forty-nine percent of practicing psychologists and psychiatrists can think a theory is complete nonsense, and it will still be enshrined in the profession’s official diagnostic manual. That’s hardly scientific. Science doesn’t take polls.”
“Okay, but certainly some mental illnesses are real?” Brunelle asked. “Like schizophrenia, for example?”
“There is absolutely no doubt that some people suffer from conditions which affect their brain’s ability to function optimally,” Mount answered. “But that doesn’t mean we truly understand them. Let’s go ahead and take your example, schizophrenia. No one actually knows what that is. At best, it’s a catchall for several different disorders. We don’t know if it’s hereditary or environmental, although the evidence suggests there are aspects of both. Symptoms vary greatly from person to person, as do the success of treatments for those same symptoms. But the existence of mental illness doesn’t mean the doctrine of psychology, as it’s been developed from Freud to today, actually describes any of it correctly. And that’s especially true for conduct disorders.”
“Oh?” Brunelle feigned surprise. He wasn’t any better than Robyn. It was all just a show for the jurors. “Why is that?”
“For most of the conduct disorders listed in the DSM-5,” Mount said, “a clinical diagnosis requires a finding that the purported disorder has interfered with the person’s interactions with the rest of society to a significant degree. For example, in order to diagnose intermittent explosive disorder—the alleged disorder at issue in this case—the psychologist has to find that the individual has suffered significant legal or financial problems as a result of the disorder.
“Well, how is that scientific?” Mount asked the jurors. “If I’m a jerk who can’t control his temper, but I’m rich and no one calls the police on me, then I don’t have intermittent explosive disorder because I’ve experienced no financial or legal consequences. But if they do call the police, or I get fired from a job I need to pay my rent, then I do have the disorder? That’s ridiculous. And it’s certainly not scientific.”
Brunelle paused and looked at his notes. He’d covered pretty much everything he’d wanted to. He just needed to tie it all together.
“Mr. Mount,” he asked, “do you have an opinion as to whether the defendant in this case was suffering from intermittent explosive disorder at the time of the killing of Leonard Holloway?”
“Yes, I do,” Mount confirmed to absolutely no one’s surprise.
“And what is that opinion based on?” Brunelle followed up.
“It is based,” Mount answered, “on my own education, experience, and research regarding the academic field of psychology. I also read all of the police reports in this case, and sat through the testimony of Dr. Sanchez on behalf of the defendant.”
“And what is your opinion?”
“It is my opinion,” Mount announced to the jurors, “that the defendant did not, and does not, suffer from a conduct disorder called intermittent explosive disorder.”
Brunelle was about to thank him, when Mount added something really worth thanking him for.
“He’s not mentally ill,” Mount summarized. “He’s just a murderer.”
Well put, Brunelle thought. And no better place to stop.
“No further questions,” he advised the judge.
“Cross-examination?” Judge Whitaker asked Robyn.
“Absolutely,” Robyn almost growled.
She stepped into the well and right up to the witness stand. “Dr. Mount,” she began. “It is ‘doctor’, right?”
“I said ‘mister’ is fine,” Mount reminded her.
“But you do have a Ph.D., right?” Robyn asked. “In fact, it’s a Ph.D. in psychology, isn’t that correct?”
“Yes,” Mount acknowledged. “I believe I said that at the beginning of my testimony.”
“A Ph.D.,” Robyn repeated. “That takes five years, right?�
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“Usually,” Mount agreed. “Four years of college, then five more years to get a Ph.D.”
“And your college degree was also in psychology?” Robyn ventured.
“I had a double major, actually,” Mount answered. “Psychology and Italian. The Italian has proved to be the more useful of the two,” he joked.
Brunelle heard at least one laugh from the jury box. So somebody liked him.
“And yet now,” Robyn pointed out, “you write articles and testify in court about how psychology isn’t real. So, it sounds to me like it’s real enough for you to make a living off of it.”
“The belief in it is real,” Mount replied. “The reliance on it, however misplaced, is real. But the doctrine itself is highly suspect.”
“Highly suspect,” Robyn repeated. “But still somewhat useful, wouldn’t you agree?”
Mount shifted his shoulders. “I wouldn’t say it’s one hundred percent useless. Like I said, mental illness is real. But most of the explanations in the DSM-5 are little more than fanciful best guesses at the most serious disorders. And trying to pathologize behaviors all the way down to so-called conduct disorders is simply not supported in any scientific way at all.”
“So, basically,” Robyn summarized, “it’s your opinion that my client doesn’t suffer from intermittent explosive disorder because intermittent explosive order isn’t real?”
Mount thought for a moment, then nodded. “Yes, basically.”
“But if it were real,” Robyn challenged him, “if psychology and the DSM-5 were accurate, then you would admit, wouldn’t you, that Mr. Pollard meets the listed diagnostic criteria to support a diagnosis of intermittent explosive disorder, right?”
“I can admit,” Mount answered, “that after he was arrested for murder, Mr. Pollard acted out at least two more times in open court, which enabled you to retain a psychologist to tell the jury that he’s not responsible for murdering the man he murdered.”
Robyn narrowed her eyes at him. “What would you say if I told you the defense had retained Dr. Sanchez prior to those other two outbursts in court?”
“I would say,” Mount said, “that you and Dr. Sanchez would then know exactly what to have the defendant do in court to make it look like he suffered from intermittent explosive disorder.”
Robyn’s eyes became slits. She crossed her arms. “Are you accusing me of fabricating a defense?”
Mount smiled at her. “Are you denying it?”
But before Robyn could in fact deny it, Judge Whitaker stepped in. “All right. Enough of that. Ms. Dunn, do you have any more questions for this witness?”
Which was code for, ‘You better not have any more questions for this witness.’
Robyn was still obviously heated, but she replied in an even tone, “No, Your Honor.”
“Then the witness is excused,” Whitaker announced. She didn’t ask Brunelle if he wanted to ask more questions on redirect exam. And he knew enough not to protest. They had accomplished what they wanted. The jury could choose to disregard Mount entirely, if they so chose, but he had given them a reason to doubt Sanchez’s opinion.
As Mount made his way to the exit, Whitaker addressed the prosecution table. “Any further rebuttal witnesses?”
Carlisle stood to respond. “No, Your Honor.”
Whitaker nodded, then turned to the jurors herself. “Ladies and gentlemen, that concludes the evidence portion of the trial, so I am going to excuse you until tomorrow morning, at which time you will hear closing arguments and begin your deliberations.”
CHAPTER 39
Another night of reflection. Another night spent, not alone like he was accustomed to, but rather with Casey Emory. A non-lawyer with her own interest, and perspective, on the criminal justice system. He bounced idea after idea off her, but none of them sounded as good spoken aloud as they had in his head. And Casey wasn’t afraid to tell him as much.
“They’ve heard all the evidence,” she reminded him. “They were there in the courtroom the whole time too. Don’t bore them with a summary of what they already know. You need to connect with them.”
And Brunelle knew she was right.
The next morning was a series of expected routines. Brush teeth, shower, get dressed. Dark suit, white shirt, red tie. Into the office early, gathering his briefcase and files and books and everything else he would just leave on the prosecution table when he stood up, empty-handed, to connect with the jurors.
Then a swing by Carlisle’s office to grab his trial partner and an elevator ride to the courtroom. Even the banter was predictable. Quips about staying up too late thinking about Robyn Dunn. Ha ha.
Giving a closing argument was always stressful. When he was a baby prosecutor, a mentor of his had told him, ‘I don’t care how many trials you’ve done. If you’re not nervous, you’re not paying attention.’ So the familiarity of routine and repetition helped soothe Brunelle’s nerves. But it also made unexpected developments that much more anxiety-provoking. Although sometimes the anxiety was warranted after all.
When Brunelle walked into the courtroom with Carlisle, everything seemed normal enough at first. The clerk and the bailiff and the court reporter were all seated in their usual spots. Robyn was there too already, sitting at the defense table, her back to Brunelle, alone in her thoughts. But something was missing.
“Where are the corrections officers?” Brunelle asked after a moment. He stopped up short as he asked the question. It wasn’t really addressed to anyone in particular.
Robyn provided the answer. “No longer needed.” She turned around in her chair to look at Brunelle. “Justin posted bail last night.”
Brunelle’s eyes flashed to the clerk for confirmation, who gave it with a quick nod and a shrug.
“You mean his daddy posted it,” Carlisle responded.
“I thought that was implied,” Robyn said. “Either way, he was released last night around ten p.m.”
Carlisle looked around the room. “Is he coming? He must not be feeling all that confident in his chances. He knows he needs to come back today, right?”
“I don’t share my client conversations with prosecutors,” Robyn answered.
“He’s gonna run.” Carlisle turned back to Brunelle. “He’s not gonna show this morning.”
Brunelle nodded. He kind of hoped Pollard was running. Leaving Seattle was not particularly consistent with carrying out his threat against Brunelle. “If he’s smart, he’s already in Canada by now. International extradition is a pain in the ass.”
“What about our trial?” Carlisle complained. “Whitaker could declare a mistrial if he no-shows. All that work for nothing.”
“She could,” Brunelle agreed. “But she doesn’t have to. And she won’t. She doesn’t want to have to try this case a second time, and the court rules allow the judge to continue with the trial if the defendant voluntarily absents himself after it’s started.”
“Yeah, I’ll be objecting to that,” Robyn put in. She stood up and walked over to where Brunelle was still standing, halfway to the prosecution table. “The jury will think he ran because he’s guilty.”
“And they would be right to think that,” Carlisle pointed out.
But Robyn shrugged. “Maybe. Or maybe he thought he’d be just another innocent man wrongfully convicted by the American criminal justice system.”
Carlisle cocked her head. “He stomped his fucking head in.”
Robyn avoided the factual argument with Carlisle. “The judge needs to declare a mistrial.”
“So, is this just another staged incident?” Brunelle asked Robyn.
Robyn sighed heavily. “Look, Dave. I know you think I staged everything. I know you don’t trust me. And I know you won’t believe me. In fact, I think you don’t even like me any more. But regardless of whether you trust or believe or like me, I will tell you one last time: none of that was staged, none of that was planned, none of that was fake.”
“None of it?” Brunelle asked.
“None of it,” Robyn assured him.
“Not even the kiss in front of the security camera?”
Robyn grimaced. “Oh, Dave…”
“No.” He put up a hand. “It’s fine. You have a job to do. You did what you thought you had to do.” He paused. “You know he threatened me, right?”
“Dave…” Robyn tried again, but this time it was the judge who interrupted her. Or rather, the bailiff.
“All rise! The King County Superior Court is now in session, the Honorable Janet Whitaker presiding.”
“You may be seated,” Judge Whitaker said as she, too, took her seat. When she looked up, she frowned. “Where is the defendant? Where is Mr. Pollard?”
Robyn stood up to address the judge. “He bailed out last night, Your Honor.”
“Yes, I was informed of that by my staff,” Whitaker responded. “But his attendance this morning was not excused. He needs to be here. Ms. Dunn, when you learned he was bailing out, did you tell him to be here this morning?”
“Yes, Your Honor,” Robyn answered. “I advised him to be here at nine o’clock.”
Everyone looked at the clock. It was already five after.
“He’s probably just running late,” Robyn suggested. “Parking is terrible around the courthouse.”
Whitaker’s frown deepened. “I have a jury sitting back there waiting to hear closing arguments and begin deliberating. State?”
Brunelle stood up. The case was almost over; he could act like lead again. “Parking isn’t that bad, Your Honor. If the defendant hasn’t appeared by nine-fifteen, we would ask the Court to issue a warrant for his arrest and proceed without the defendant, pursuant to Criminal Rule 3.4.”
“And I would object to that, Your Honor,” Robyn put in. “Proceeding without Mr. Pollard would only invite the jury to speculate as to why he suddenly disappeared at the very end of the trial.”
“I think they’ll know exactly why he disappeared,” Whitaker mused.