Maxine stormed through the front door of our Newport Beach house, threw her keys across the entryway where they landed in the family room with a loud clutter, swearing a blue streak, as she was captain of the John Wayne Tennis Club women’s Hill and Harbor team, and she had just lost a doubles match to the Huntington Beach Club doubles team, knowing she and her partner were better players, but they got lobbed at over and over again to Max’s frustration. Sitting in the living room at the time and looking gape-mouthed at her were me preparing a trial with my investigator, and Al R., the psychologist who was to testify to my client’s mental condition at the time of the charged crime..
Maxine was very good tennis player to the degree that she hesitated to play tennis with me and my inferior game. We stopped going to Acapulco after my incident with the tetanus shot and started to go to Hawaii after that. Had some nice trips to Maui and Kauai, and then we were advised to go to a fancy resort located on the Big Island of Hawaii called Mauna Kea Beach Hotel, and it was just as advertised. Designed by Laurence Rockefeller, brother of Vice President Nelson Rockefeller, and son of the railroad and financial wizard, the famous John D. Rockefeller. At the time we stayed at the resort, it was very isolated without any structures in the vicinity, and the nearest populated area was several miles south, the town of Kona, on the west side of the island. The Big Island is called just that because it is larger than all the other Hawaiian Islands put together, containing the only active volcano in the US, Kilauea, and two dormant volcanoes rising to several thousand feet, Mauna Kea and Mauna Loa. Filled sparely with wild orchids, and small towns, the only way at the time to get to the resort was to fly into the main town, Hilo, on the east end of the island, rent a car and drive up the coast, across the island to the west end and arrive at the hotel, which had about 200 very nice rooms with either ocean or golf course views. There was an extremely challenging golf course designed by the famous Robert Trent Jones surrounded by beautiful island homes. The beach is considered one of the most beautiful beaches anywhere, a perfect crescent shaped place to swim and surf. When we visited, I played golf and tennis, but Max had never held a racket and was bored, so when we returned home, she decided she would like more to do, so she joined The Newport Beach Tennis Club, took tennis lessons and became somewhat proficient and later joined a new club called the John Wayne Tennis Club. I might add Duke, as Wayne was known by, did not play as far as I could see, but spent his time playing chess. I love his Westerns and watch them to this day on the Western TV station. The Wayne Club had as its touring pros Roy Emerson and Rod Laver. Max has played doubles with Laver and John Wayne’s wife, as well as Frankie Parker, the winner of many tournaments. (that is a story by itself that I might throw in on a later blog,)
Anyway, back to the meeting with the psychologist and investigator: The issue I was interested in was what as known at the time was a defense called diminished capacity, which, if shown, could reduce the malice aforethought element of a murder to a manslaughter. It was a defense that developed until the Harvey Milk case, which the press dubbed, “The Twinkie Defense.” Dan White, a San Francisco Supervisor, wanted another San Francisco Supervisor, Harvey Milk, to support him on an issue and Milk declined. Apparently Dan White became obsessed with the matter, got a gun, climbed through a window at the City Hall, went to the office of George Mascone, the then-Mayor and shot and killed both Mascone and Harvey Milk. White was prosecuted on a charge of double murder, but skated with a manslaughter conviction on the basis that his mental state was so diminished, he could not form the mental state of malice due to lack of sleep and obsession. Interestingly, the dubbed “Twinkie Defense” was never used by the defense and the only reference to Twinkies in the trial had to do with his lack of eating very much except Twinkies. No witness ever blamed the shooting on Twinkies, nor was it ever argued to the jury. Nevertheless, the diminished capacity defense was changed by statute to “diminished faculties,and I can’t recall a case when someone was accused of murder and had it reduced due to diminished faculties, whatever that means.
What does all of the above have to do with the the title of this blog? one may ask. Well, after everyone settled down, with Max very chagrined and apologetic, the psychologist started talking about the upcoming 1981 inauguration in January. It seems Al R. was going to attend with Judge Sam Taylor. He said either Sam’s son or nephew was going to make all the arrangements, the flight to Washington DC, The hotels, the galas, the spectacle, and the restaurants. So, with that, Al invited Max and me to join them. I politely refused, having recently returned from our Hawaii vacation, and I thought that was the end of it, but not so. After Al and the investigator left, Max started working on me. With a little tear in her eye, she said, “When would we ever get a chance to go to the swearing in of a President of The United States?” When it comes to my life partner, I am a softie, so I gave in. The next day, I called Al R. said were in, and let me know the arrangements. I heard sort of a gulp on the other end and knew his offer was bull, but waited. Later I got a call from Al, and was told he could arrange a flight from LA to Minneapolis, then into DC. I said hold off, told Max, and she got us a direct flight from LA to Dulles Airport in DC. Called Al, told him we have a flight. He called back, said he could get us lodgings in Baltimore, and a bus ride into DC. Again told him to hold off, called one of my clients’ father in Arizona, who was a big shot in the GOP, and, in an instant had a room at The Mayflower Hotel located in the middle of where all the activities were being held. I should mention Al was working on the gala and the parties without success, but my contact also got us into the Gala and wondered if we wanted to see some entertainment, as the Gala featured luminaries like Frank Sinatra. Lastly, Max made arrangements to dine in a very nice restaurant, and when we entered and were ushered to our seat, we passed Al and Judge Taylor. Their faces did not show pleasure.
So, it was obvious that Al couldn’t produce and was full of hot air, which brings me to the subject of expert witnesses in relation to trials. I had an early homicide case in which Martha A. acquired a pistol, went to a firing range, learned how to use it, and then shot her 16-year-old son, who was his father’s pride and joy. She killed the boy by shooting the young man in the head while the boy was sleeping. It seems the husband, a medical doctor, was believed to be having an affair with his nurse. The family was all from Peru. After I was retained by the husband to represent the accused wife, who was charged with 1st degree murder based on several grounds, such as premeditated murder, and lying in wait special circumstances, I learned that the mother/client, Marta A. was interviewed by the police and was claiming she had to free her son of the evil spirits who were telling her to shoot her boy in order to clear him of the devil. My plea before the preliminary hearing was the dual plea of “not guilty and “not guilty by reason of insanity.” What happens after the plea is the court then appoints a court-paneled expert regarding the mental condition of the defendant to examine the defendant and the defendant’s mental capacity regarding whether the defendant is capable to stand trial, and the mental capacity at the time of the crime, in this case, the shooting. Basically, is the defendant able to understand what is happening and can the defendant communicate with his/her attorney or is the accused presently insane? If insane, the defendant is then remanded to a mental institution for treatment, and remains until sanity is restored, if ever. If found sane, then first the defendant must be found guilty of the charge, and if so found, then the not guilty by reason of insanity, generally referred to as NGI, switches the burden of proof to the defense to overcome the presumption of sanity. If the defendant is found sane, that is the defendant at the time of the act was capable of knowing right from wrong and also capable of appreciating the nature and quality of the act, then the defendant would be found sane and subsequently get the death penalty or life in prison. If the defendant is found not guilty by reason of insanity then that is, in effect, a not-guilty verdict, and the defendant is remanded to a mental hospital until sanity is regained. So, when it comes to experts, many are very ethical and will report a finding based on independent evaluation, uninfluenced by who is paying them. However, there is a body of experts, such as psychologists, psychiatrists, accident-reconstruction experts, personal injury doctors (like orthopedic surgeons,) soil erosion, the list of topics is endless, who will come up with opinions favorable to the side that is footing the bill. Trial attorneys soon learn who is taking a position, either favorable or otherwise. One of my moves was to hire, among others, the prosecution’s favorite “shrink,” but use another, which would preclude the prosecutor from engaging a so-called favorable expert to their side. It’s perfectly legal, and in my opinion, keeps a charlatan from messing up a defense. Well the result in Martha’s case was interesting. I always like to go to the scene of the action to get a mental picture of the surroundings, and went to the location, a house in Santa Ana, accompanied with our investigator and my associate, Bob Brody. To my amazement, I learned the police did not do a crime scene investigation, and I don’t think they ever did. Well, it turned out the court-appointed mental health expert and the psychologist I hired both agreed, Martha was suffering from a delusion, hearing voices, hallucinating and therefore was insane at the time of the act. But, they also found her sane at the present time. I worked out a deal where we submitted to the court the medical reports and she was found not guilty by reason of insanity, remanded to a hospital and was released after 6 months, now “sane.” I guess no one can believe a mother would with a clear mind would kill her own son. That is our culture.
I wrote the above to illustrate how things with experts can go one way, and I have often thought that the prosecution in the case might have taken a harder look at the facts, but I am generally pleased with a win.
Experts are supposed to meet specific qualifications to be on the court’s approved list, and Al was on it based on his resume. However, a top prosecutor on a later case decided to follow up on his background and found that, though it was true Al had a PhD, it was not in psychology, but some other field, though he did take a course in psychology and got either a B or C in this course, and the prosecutor, I believe, destroyed Al in trial, and he was removed from the approved list. I am glad it wasn’t one of my cases, and I am grateful for the opportunity to have experienced a great political event, the swearing in of a US President. It doesn’t matter if it was a Republican or Democrat, it was fabulous!
We were seated at a nice table which was adjoining a corner booth with the then-Mayor of San Francisco, Dianne Feinstein. Dianne looked over, saw Max and said, “Maxine!” and Max responded, “Dianne!” They knew each other from Stanford, as they were both quartered in the same campus residence. We spent a delightful evening together. Went to all the things, and I swear when Reagan was sworn in, the cloud cover disappeared and a ray of sunshine came out. Perfect ending to an amazing experience.
Marshall
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