Salvi's Hearing Transcripts | Murder On Abortion Row | FRONTLINE

Volume: 1
Pages: 1-302
Exhibits: 9-14

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS SUPERIOR COURT DEPARTMENT

* * * * * * * * * * * * * * * * *
*
COMMONWEALTH OF MASSACHUSETTS, *
Plaintiff, *
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VS * Criminal Business
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JOHN W. SALVI, III * No. 99518 to
Defendant * 99523
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BEFORE: The Honorable Barbara A. Dortch-Okara, J.

PLACE: Norfolk Superior Courthouse
Room 25, Criminal Session
650 High Street
Dedham, Massachusetts 02026

DATE: Tuesday, July 25, 1995

TIME: 9:35 a.m.

__________________________

DANIEL J. JACQUES REPORTING SERVICES
Professional Court Reporter
14 Adin Street
Hopedale, Massachusetts 01747
(508) 473-3041

A P P E A R A N C E S

JOHN P. KIVLAN, Esquire
ASSISTANT DISTRICT ATTORNEY
360 Washington Street
Dedham, Massachusetts 02027
FOR: The Commonwealth

MARIANNE C. HINKLE, Esquire
ASSISTANT DISTRICT ATTORNEY
360 Washington Street
Dedham, Massachusetts 02027
FOR: The Commonwealth

JOHN H. LaCHANCE, Esquire
14 Vernon Street
Framingham, Massachusetts 01701
FOR: Mr. Salvi

J. W. CARNEY, Esquire
CARNEY & BASSIL
20 Park Plaza
Boston, Massachusetts 02116
FOR: Mr. Salvi

JANICE BASSIL, Esquire
CARNEY & BASSIL
20 Park Plaza
Boston, Massachusetts 02116
FOR: Mr. Salvi

I N D E X

EVENT PAGE

Competency Hearing Day 2 . . . . . . . . . . . . 4

________________

WITNESS DIRECT CROSS REDIRECT RECROSS

Dr. Phillip J. Resnick (Second Day)
By Mr. LaChance . . . . . . . . . . 62-87
By Mr. Kivlan . . . . . . . . 5 . . . . . . 79-88

Dr. Robert Kinscherff
By Mr. LaChance . . . 89 . . . . . 223
By Ms. Hinkle . . . . . . . . 144 . . . . . . 242

Dr. Ronald Schouten
By Mr. LaChance . . . 250
By Ms. Hinkle . . . . . . . . 292

________________

E X H I B I T S

NO. DESCRIPTION PAGE

9 Magazine . . . . . . . . . . . . . . . . . 10
10 Pamphlet . . . . . . . . . . . . . . . . . 11
11 Letter . . . . . . . . . . . . . . . . . . 143
12 Curriculum Vitae . . . . . . . . . . . . . 143
13 Curriculum Vitae . . . . . . . . . . . . . 253
14 Mr. Salvi Note . . . . . . . . . . . . . . 266

A Article . . . . . . . . . . . . . . . . . 44
B Dr. Resnick's Notes . . . . . . . . . . . O/R
C Notes and Test Results . . . . . . . . . . 157

P R O C E E D I N G S

THE CLERK: You may be seated.
MR. KIVLAN: Good morning Your Honor.
THE COURT: Good morning.
MR. LaCHANCE: Good morning Your Honor, before we start, may I say something?
THE COURT: Yes, be brief.
MR. LaCHANCE: I want to bring something to the attention of the Court. I was requested to go to see Mr. Salvi this morning and Mr. Salvi has requested that a statement that he has prepared be read on his behalf in court and on his behalf. I would request permission to do so?
THE COURT: No sir. Thank you, let's --
MR. LaCHANCE: Actually he would request permission to read it himself to the Court. Will you allow him to do that?
THE COURT: No sir, I will not. Yes Mr. Kivlan?
MR. KIVLAN: May we proceed Your Honor?
THE COURT: Yes. Doctor?
THE CLERK: Doctor, I remind you, you are still under oath.
THE WITNESS: Yes.

CONTINUED CROSS-EXAMINATION
By Mr. Kivlan
Q Now Doctor, before we resume at the point where we were at yesterday, I want to ask you a couple of preliminary questions.
Do you have a report in this case?
A I do not.
Q Do you have any notes?
A Yes.
Q Do you have any transcript of this second interview you did with Mr. Salvi on June 18th of this year?
A I do not.
Q Do you have notes of that interview?
A Yes.
Q Do you have the notes with you now?
A Yes.
Q May I see the notes please?
A Yes.
(Brief Pause)
Q These are the notes of your second interview with Mr. Salvi?
A Yes.
Q Now, with respect to the report, or the absence of a report, you usually write a report when you are called upon to do an evaluation in a case, don't you Dr. Resnick?
A If I am requested to, yes.
Q Well, if you're requested to, is that right?
A Yes.
Q And when you or when you were acting as a forensics psychiatrist at the request of the State of Ohio and you were asked to do an evaluation, you wrote a report, just like Dr. Haycock, right?
A You're referring to the Malcolm Case?
Q Not just the Malcolm Case, any case which you did for the State of Ohio, that was a formal case, that you were asked to evaluate a defendant for competency or responsibility, you wrote a report, right?
A If requested by the prosecutor, routinely reports were written in that case, yes.
Q And you've been interviewed or attempted to be interviewed by the State Police of Massachusetts in this case, right?
A Yes.
Q And you declined to answer any questions, is that right?
A I said that I would need instruction from the attorneys who employed me before I answered and they didn't call back.
Q Because you consider yourself to be employed by defense counsel in this case, right?
A I am employed by defense counsel, yes.
Q As a matter of fact, you used the term with the State Police Officer, I can't talk to you without their permission, words to that effect?
A That's right.
Q Is that right?
A Yes.
Q Now, ordinarily in a case, even if you were asked to do an evaluation by a defense attorney, you write a report for the attorney in the case, don't you?
A It depends on the request of the attorney.
Q Did the attorneys in this case request a report from you?
A They did not.
Q By the way, you've given discourses on writing reports to psychiatrists in the past, correct?
A Yes I have.
Q And you have given them advise about writing reports, is that right?
A Yes.
Q And you have told them, among other things, that reports can be, "picked apart," to use your words, on cross-examination, haven't you?
A Yes.
Q And that it is very important not to write preclusionary reports, is that right?
A Yes.
Q Now, with respect to some questions that I asked you yesterday that you said that you didn't have any materials, or hadn't had an opportunity to read them, have you since had an opportunity to read some of this materials that were in Mr. Salvi's possession at the time he was arrested or sometime thereabouts?
A Yes.
Q And do these materials include this magazine called the New American?
A Yes.
Q You've seen this now, and you've had an opportunity to read it, is that right?
A Yeah, I'm not sure what -- I've seen that cover but I'm not sure if --
Q Right, take a look at it?
(Brief Pause)
A It looks to me like I have read some of these and not others.
Q But that's the magazine, in any case?
A Yes.
MR. KIVLAN: Mr. LaChance has seen this Your Honor, and it is my understanding that he has no objection to this being the next exhibit.
MR. LaCHANCE: Your Honor, I just would request, we do stipulate that that was the magazine that was found during the search. I would indicate for the record that we have received a portion of that before, and this morning is the first time we received the full book. But this is the --
THE COURT: Exhibit 9.
(Exhibit Number 9, Magazine, Marked and Received into Evidence)
THE CLERK: Exhibit 9 has been marked, Your Honor.
THE COURT: Thank you.
Q And with respect to Exhibit 9 --
THE COURT: What is the name os this, the New?
MR. KIVLAN: The New American Magazine.
THE COURT: Thank you.
Q Some of the references on the cover to articles that may be found inside, are for example, Firearms and Freedom, Why Crime Pays, The Curse of Compromise, am I reading accurately?
A I can't see from here.
(Brief Pause)
A Yes, that's correct.
Q Can you agree with me sir that within, unfortunately there isn't a page number, but would you agree with me that's there an ad in here that states at the top, "Abortion, America's Greatest Crime?"
A Yes.
Q And also within Mr. Salvi's possessions was there a communication from something entitled, The Fatima Center, from Constable, New York, do you remember seeing this document?
A I saw the second article, but no the first article.
Q But you've seen the pamphlet, and you have at least seen some of the articles in it?
A Right, some were made available to me, some were not.
MR. KIVLAN: And again Your Honor, I understand that Mr. LaChance has no objection to this being the next exhibit.
THE COURT: Exhibit 10.
THE CLERK: Exhibit 9 and 10 have been marked Your Honor.

(Exhibit Number 10, Pamphlet, Marked and Received into Evidence)

THE CLERK: Exhibit 10 has been marked, Your Honor.
Q And with respect to Exhibit 10, among other things, you will agree with me sir, that there is contained articles which include, Russia, The United Nations and the Anti-Christian One World Government?
A Yes, I did see that one.
Q And another article, The New Age Movement, The Kingdom of Satan on Earth?
A Yes, and I saw that one.
Q Now, you testified at some length yesterday, and you supported your testimony with excerpts of a video of your interview with Mr. Salvi on January 15th, which is marked Exhibit 4 A, is that right?
A Yes.
Q And you used samples of conversations that you had with Mr. Salvi involving religious beliefs and political beliefs in support of your opinion that Mr. Salvi was delusional, is that right?
A Yes.
Q And you also offered an opinion to this Court, that those delusions constituted a mental disorder, in your opinion, is that right?
A I didn't say they constituted, but along with the other symptoms, they lead to a diagnosis of schizophrenia, yes.
Q And yesterday at one point, or at least in the past at one point, you've testified under oath that you don't read other psychiatric authorities, yesterday you told us here under oath that you do, is that right?
A I read other psychiatric articles and books, whether they are labeled authorities, I think was the confusion.
Q Well, we'll let the record show what it shows and the Judge will determine whether there was any confusion, but your testimony is today, that you do read other psychiatric authorities, or you do read other psychiatric materials?
A I do read other psychiatric materials.
Q By the way, would you acknowledge that schizophrenia, if it exists, whether it is in this defendant or any other defendant, is allegedly a mental disorder, by your definition?
A Yes.
Q Are you familiar with the Diagnostic and Statistical Manual of Mental Disorders, sometimes referred as D.S.M.?
A Yes.
Q Do you read that?
A Yes.
Q Do you consider that authoritative?
A I do.
Q Have you read the introduction to that, sir?
A Yes.
Q And with respect to the underlined portions I show you from the introduction on Page 21, I read to you, "A clinically significant --"
A Excuse me, you are beginning --
THE COURT: What are you referring to?
MR. KIVLAN: I'm referring to the Page 21 of the Diagnostic Manual that I just made reference to.
THE COURT: What version of that manual?
MR. KIVLAN: I'm sorry Your Honor, I will get it for you.
THE COURT: I like to read along with you, I do have a copy myself.
MR. KIVLAN: All right. It's D.S.M. IV, fourth addition Your Honor, and it's Page 21 of the introduction.
THE COURT: All right.
Q I'm reading now Doctor, from the bottom paragraph.
"Despite these caveats, the definition of mental disorder that was included in D.S.M. III and D.S.M. III R, is presented here because it is useful as any other available definition that has helped to guard decisions regarding which conditions on the boundary between normal, normality, and pathology should be included in D.S.M. IV," in D.S.M. IV, period.
"In D.S.M. IV, each of the mental syndrome or pattern that occurs in an individual and --"
A I'm sorry, you skipped a line.
Q I did?
A Yes.
Q Oh, you're correct sir, I did, I'm sorry. Where did I end according to you?
A Here.
Q All right.
"In D.S.M. IV, each of the mental disorders is conceptualized as a clinically significant behavioral or physiological syndrome or pattern that occurs in an individual and is associated with present distress, e.g. painful symptom or disability, i.e., impairment in one or more important areas of functioning or with a significantly increased risk of suffering death, pain, disability or an important loss of freedom."
"In addition, this syndrome or pattern must not be merely an expectable and culturally sanction response to a particular event, for example, the death of a loved one."
"Whatever its original cause, it must currently be considered a manifestation of a behavioral, psychological, or biological disfunction in the individual."
"Neither defiant behavior, e.g., political, religious, or sexual, nor conflicts that are primarily between the individual and society, are mental disorders unless the deviants or conflicts is a symptom of a disfunction in the individual as described above."
Did I read that accurately?
A Yes.
Q Now, apart from what I just covered with you, Dr. Resnick, Mr. Salvi told you during that interview on January 15th, with respect to some of the views that he has espoused to you that most people take me with grains of salt, didn't he tell you that?
A Yes.
Q And that was when you were pressing him about some of the statements which you characterized as unusual, isn't that right?
A Yes.
Q Now, yesterday you did acknowledge that some of the facts in this case indicate that the individual, which the evidence shows to be Mr. Salvi, who entered these women's clinics and murdered employees there, and shot and wounded other people, that one could consider that having been done consistent with a political cause, is that right?
MR. LaCHANCE: Your Honor, I object because it assumes facts not in evidence in a sense that --
MR. KIVLAN: I believe those facts are in evidence.
THE COURT: Repeat the question.
Q Yesterday, did you acknowledge that you had examined Grand Jury notes and police reports and you are familiar with the fact that there was evidence in this case that show that Mr. Salvi had had some contacts with antiabortion groups, had attempted to distribute antiabortion material, had made statements that the antiabortion movement wasn't doing enough.
That he had numerous materials in his possession, including the one that is Exhibit 9, that we just introduced this morning, "Abortion is a Crime," and that Mr. Salvi armed, and prepared himself to enter two women's clinics and murdered employees there, and shot other people who were present.
Did you testify yesterday that those facts are consistent with a crime committed in the name of a political cause so to speak?
MR. LaCHANCE: Objection, they are not facts.
THE COURT: Sustained.
MR. KIVLAN: Excuse me, what was the objection again, sir?
MR. LaCHANCE: That they are not facts, Mr. Salvi has not been convicted. There is information that --
THE COURT: Sir your objection is sustained. Move on.
Q Did you acknowledge yesterday sir, that there were facts within the materials that you possess that inferences could be drawn that I just related to you?
A That is one possible explanation, yes.
Q And you acknowledged yesterday that, without being repetitious, that people who are engaged in that kind of criminal activity, for those reasons, among others, are usually competent, is that right?
A Yes, if they are not psychotic.
Q But the question was, did you state that they were usually competent?
A The way you phrased your question, those reasons, among others.
Q And did you also state in your article that these people frequently are uncooperative, don't cooperate with their attorneys, and attempt to disrupt the course of their court proceedings, did you state that?
A Yes.
Q And is it also a characteristic of this defendant, which you now acknowledge, these facts possible show him to be, that they also are very interested in media coverage, is that true, according to your article?
A Yes, if someone has a primary political goal, yes.
Q Now, in connection with writing that article, you obviously had done some research, correct?
A Yes.
Q And you were aware that there are cases in which people commit crimes for reasons related to political or religious reasons, or a combination of that in attempting to get media attention to themselves or their cause, is that right?
A (No Verbal Response)
Q There are people who do that?
A Yes, I focused really on people who do it for political cause rather than just media attention, separate from media attention.
Q But you did state in your article that usually those people seek media attention?
A Yes.
Q Now, with respect to doing that research, you cited some cases in your article, is that right, that you were familiar with, one of them being the Robertson Case, United States verses Robertson, is that right?
A I don't recall it now, but I will accept your statement.
Q Now, you obviously, you asked Mr. Salvi in your interview on January 15th, if he knew anything about these shootings in Florida, didn't you?
A Yes.
Q And that's because you determined that that might be relevant to your evaluation of Mr. Salvi, is that right?
A Yes.
Q And that's why you asked him more than once, correct?
A Yes.
Q And you are familiar, generally, that there have been some murders at women's clinics in Florida, right?
A I recall the one more distinctively than the other, yes.
Q Well, did you do any research into these cases?
A No, I did not.
Q But you did consider the facts pertaining to these cases to be relevant to your evaluation, is that right?
A The one case, yes.
Q Well, did you know that there were two cases?
A I do now.
Q And the first case was on March, occurred on or about March 10, 1993, correct?
A I don't know.
Q Well, do you know when it occurred?
A I don't.
Q Do you have any idea?
A I don't.
Q Well if I suggested to you that it was on or about March 10, 1993, would that be consistent with your memory?
A I just told you I don't have a memory.
Q You have no memory at all?
A I don't recall when it occurred, no.
Q Have you ever heard of the name Griffin?
A Vaguely yes.
Q Well you said you now know about both cases?
A You mentioned them yesterday, yes.
Q You didn't ask anybody about it, you didn't discuss it with anybody?
A No.
Q Well, Mr. Griffin, Doctor, if you knew the following facts would this have been relevant to your evaluation, if you knew that Mr. Griffin was a person known to carry a bible and make biblical references, would that be relevant to your evaluation?
A I don't know, I think it would depend on, I might inquire of the defendant whether he had knowledge of it, but the exact nature of it wouldn't be relevant to my evaluation.
Q Would it be relevant to your evaluation to know that Mr. Griffin refused to cooperate with psychiatrists and attorneys in his case in Pensacola, Florida, four hundred miles from where Mr. Salvi grew up?
A Yes, that could be relevant.
Q And would it be relevant to your evaluation to know whether or not that trial had been televised by T.V. or any other broadcasting?
A It would be particularly relevant to know if Mr. Salvi watched it.
Q You did tell us yesterday that you were aware from reading Mr. Robert's interviews that Mr. Salvi was described by Mr. -- well, you didn't, I didn't ask you this question, but you did read the reports and the interviews of Mr. Roberts, right?
A Yes.
Q A former employer of Mr. Salvi's?
A Yes.
Q And he describes Mr. Salvi as being a news addict, right, somebody that always wanted to listen to the news, right?
A Yes.
Q And in his words, in substance, somebody he thought that wanted to be in the news someday, or words to that effect, right?
A Yes.
Q And with respect to, again, to your evaluation of Mr. Salvi, would it have been relevant to know what defense if any, Mr. Griffin asserted at his trial in Pensacola, Florida?
A Potentially, yes.
Q And would it be relevant if you knew that Mr. Griffin attempted to introduce a defense of necessity, that is, the defense of another which was rejected by the Florida Courts, would that be relevant?
A Possible, but since Mr. Salvi didn't raise that, it would be less relevant.
Q Well, would it be relevant to your evaluation to know that Mr. Griffin did not attempt to introduce a so-called insanity, or a lack of responsibility defense, would that be relevant?
A Possible.
Q And would it be relevant that after Mr. Griffin's conviction, that he's been calling upon the State of Florida to put him to death, would that be relevant to your evaluation of Mr. Salvi?
A Potentially, yes.
Q And with respect to the death issue, you made reference to, as part of the basis in your opinion, Mr. Salvi's statements about seeking the death penalty, do you remember saying that yesterday?
A Yes I do.
Q And this was taken up with Dr. Haycock to, you have read Dr. Haycock's report, right?
A Yes.
Q And you understand from Dr. Haycock's report, that in his experience, frequently defendants who are charged with first degree murder, state that they would rather be put to death then spend their life in prison, isn't that true, that's been stated numerous times?
A Yes.
Q And with respect now to the other case in Florida, the so-called Hill Case, are you familiar with the name Paul Hill?
A Yes.
Q And did you know that Paul Hill attended Mr. Griffin's trial?
A No I didn't.
Q Would that have been relevant to your evaluation?
A Of Mr. Salvi?
Q Yes.
A No.
Q Did you know that Mr. Hill committed the murders of a doctor at a women's clinic in Pensacola, Florida on July 29, 1994?
MR. LaCHANCE: Your Honor, I am going to object. These all assume facts that are not in evidence and are not within the personal knowledge of Dr. Resnick
THE COURT: Overruled, you may answer.
Q Did you, Doctor, with respect to Mr. Hill, I will ask you again first, if you are familiar with the name Paul Hill?
A Yes.
Q And incidently did you know that Dr. Haycock asked Mr. Salvi whether or not he knew Mr. Hill, did you know that?
A I don't recall if that was included in his report or not.
Q Well, it wasn't included in his report.
Did you ever talk to Dr. Haycock?
A Very briefly yesterday, not about that.
Q Did you ever talked to him before you formed your opinion in this case?
A No, I did not.
Q And Salvi was at Bridgewater State Hospital for almost sixty days, is that right?
A I'm not sure of the exact length, I know there were two stays.
Q And you have received, since these proceedings commenced, copies of notes that Dr. Haycock took with respect to his evaluation of Mr. Salvi, right?
A Yes.
Q And did you ever make an attempt to talk to Dr. Haycock at any point?
A Yes.
Q Yesterday, you say?
A Yes.
Q But not until yesterday?
A That's correct.
Q And you don't know that Dr. Haycock asked Mr. Salvi if he knew who Paul Hill was, you don't know that?
A Right.
Q Did you know that Mr. Salvi asked Dr. Haycock where he could write to Mr. Hill, if you knew what -- strike that -- if Dr. Haycock knew what institution Mr. Hill was in?
A No.
Q Would it have been relevant to your evaluation to -- strike that.
From the facts that you have in the Grand Jury materials that you reviewed and the police reports, did you glean from those that there was evidence that suggested that Mr. Salvi had purchased a 22 caliber Ruger rifle, converted it into an assault weapon, and then two days before these murders in Brookline, went -- strike that -- the day before these murders in Brookline on December 30th, went target practicing, practiced with that rifle, did you know that?
A Yes.
Q You did know that?
A Yes.
Q Would it have been relevant to your evaluation of Mr. Salvi to know that Mr. Hill within days of the murder at the women's clinic on July 29, 1994, had also purchased a shotgun and converted it into an assault mode, and that he had target practiced for two days before going to the women's clinic and murdering the doctor and another person, would that have been relevant?
MR. LaCHANCE: Objection.
THE COURT: Rephrase the question sir.
Q Would those facts have been relevant to your evaluation of Mr. Salvi?
MR. LaCHANCE: Objection.
THE COURT: Sustained.
Q Are you aware that there are -- Well, let me withdraw that question.
With respect to Mr. Hill's trial, do you know that Mr. Hill's trial was televised in part?
A I knew there was a media coverage of it, I don't know if it was on Court T.V. or not.
Q And do you know when the trial was actually played on Court T.V. and other networks?
A No.
Q So you don't know, if I suggested to you that they, that those tapes of that trial were played at the end of November and the beginning of December of this year, approximately or not less than thirty days before these murders in Brookline, if I suggested those facts to you and I ask you this question, whether or not that would have been relevant to your evaluation of Mr. Salvi?
MR. LaCHANCE: Objection.
THE COURT: Overruled.
A Yes, that would be relevant.
Q And if the evidence at this hearing showed, or anywhere, showed that Mr. Hill had refused to assert an insanity defense at his trial, would that have been relevant to your evaluation of Mr. Salvi?
A Yes.
Q And you do know that Mr. Hill was convicted on or about December 5, 1994, and received the death penalty, you do know that?
A I knew he was convicted, I did not know the date.
Q And did you know that Mr. Hill made statements to the jury at his trial with reference to the bible and the like?
A No.
Q Would that have been relevant to your evaluation of Mr. Salvi if you had known those facts?
A Potentially.
Q Right after Mr. Salvi was arrested, numerous law enforcement officers tried to interview him?
A Yes.
Q And you have read the reports of those attempts to interview him?
A Sometime ago, yes.
Q And throughout those reports, is it fair to say that Mr. Salvi would discuss certain things with the officers, some things, and they wrote reports, right?
A Yes.
Q But every time they attempted to ask him about the events of December 30th, as early as that date, he refused to make any statements about it, right?
A Yes.
Q Did you read the report of a Trooper Joseph Flaherty with respect to his attempt to interview Mr. Salvi?
A I don't recall, no.
Q All right, well whether you recall his name or not, do you recall at some point that a Trooper, when asking Mr. Salvi of the events of December 30th, had a newspaper in his hand from Boston relating the events in the front page stories, do you remember that report?
A I don't.
Q Well, do you remember Mr. Salvi indicating that he wanted to read those newspapers and reading those newspaper in the presence of the officers?
A I don't recall it, but it certainly not uncommon for criminals to be very interested in news media attention.
Q Did you read the characterization of one of the officers from Virginia, who attempted to interview Mr. Salvi, that in his view, he was playing the P.O.W. game, did you read that report?
A I don't recall.
Q You don't recall.
Now, getting back to this political or religious type of defendant, are you familiar with an organization that refers to themselves as the Lambs of Christ, do you know who they are?
A No.
Q Would it have assisted you in your evaluation of Mr. Salvi to know that there is such an organization and that characteristically when they are involved in abortion, or antiabortion protest, and they are arrested that they refuse to cooperate with the authorities, and sometimes remain silent at their trials, would that have been relevant to you?
MR. LaCHANCE: Objection.
THE COURT: Would you come to the side bar please?

SIDE BAR CONFERENCE

THE COURT: What are the basis of your objection, sir?
MR. LaCHANCE: My objection is that basically Mr. Kivlan is testifying, there is no foundation.
THE COURT: I need to know whether any of this is in the materials, I am not privy to all of them. I haven't read through everything.
MR. KIVLAN: Right, some of it is in the materials, and the stuff that isn't on the materials, we will introduce by the close of the hearing.
THE COURT: If that's not so, sir, you may move to strike.
MR. LaCHANCE: I'm sorry I didn't hear what you were going to say.
THE COURT: If there is no foundation, at the appropriate time, you can move to strike.

END SIDE BAR CONFERENCE

THE COURT: Counsel, would you just come again to the side bar.

SIDE BAR CONFERENCE

THE COURT: Sir, would it help you if we turned the air conditioners on?
MR. LaCHANCE: Yes it would.
THE COURT: I don't know how we will be able to hear.
MR. LaCHANCE: I'm very sensitive to the heat.
THE COURT: It appears you are suffering. We will try it, but it really may interfere with my being able to hear, the hearing the witnesses, but we can try.
MR. LaCHANCE: Okay, thank you, Your Honor.
THE COURT: Turn the air conditioners on.

END SIDE BAR CONFERENCE

THE COURT: The air conditioner is on on the other side, so kindly speak louder if you would.
THE WITNESS: Yes.
Q With respect to Dr. Haycock's and the staff's at Bridgewater evaluations of Mr. Salvi, you did read their report, is that right?
A Yes.
Q And it was at least, the combination of the report was at least fifty pages, was it not?
A Longer I believe, yes.
Q And Dr. Haycock and his staff, and incidently you see references in that report that there was a, shall we say, a team approach to this.
There were other forensic experts who participated in the evaluation of Mr. Salvi, right?
A I just noticed the psychological testing of Dr. Cataldi, I didn't know other people participated.
Q Well, do you remember the name of a Dr. Birkmire, a forensic psychiatrist who also participated in the evaluation?
A My understanding --
MR. LaCHANCE: I object Your Honor.
THE COURT: Overruled.
A My understanding was that he saw the patient on admission, but did reach no forensic conclusions.
Q But there were numerous staff at Bridgewater who had contact with Salvi during the evaluation process, right?
A That observed him, yes.
Q And are those reports were made available to Dr. Haycock, correct?
A Yes.
Q And they had him down there twenty-four hours a day, for nearly sixty days, right?
A Yes.
Q And Dr. Haycock himself talked to Mr. Salvi for approximately eleven hours, right?
A Yes.
Q And Dr. Haycock focused, just as you did, on what you described as the central or critical issue on January 15th, of being Salvi's refusal to state a narrative of the events of December 30th, right?
A Yes.
Q And Dr. Haycock not only arrived at a conclusion that Mr. Salvi was doing that deliberately and intentionally, and that he was competent, but he wrote reasons, didn't he, why he believed that, correct?
A Yes.
Q He had facts, correct?
A (No Verbal Response)
Q He had facts that supported his opinion, correct that he cited in his report?
A Yes.
Q And among other things, he cited the fact that Mr. Salvi had been involved in three assaults down at Bridgewater, correct?
A Yes.
Q Fights with other inmates or guards, right?
A Yes.
Q And Mr. Salvi gave an account to Dr. Haycock in detail of those events, and what witnesses were present, and what his position was in those matters, right?
A Yes.
Q And Dr. Haycock even noted, either in his notes, or his report, that he had given such an account to one of his defense attorneys, Ms. Bassil, do you remember that?
A Not exactly.
Q Now, with respect to Dr. Haycock's notes, have you read the notes?
A I did, but they were not fully legible.
Q You told this Judge yesterday that one of the reasons that you arrived at your opinion was that Mr. Salvi, in your view, didn't have an understanding of the case against him, is that right, did you say that in substance?
A A full and rational understanding, yes.
Q And you offered as a reason that, did you not, in substance, that he wasn't able to evaluate his possible defenses in your view?
A Yes.
Q And by the way Doctor, you're familiar and you've written about the fact that there are a number of cases in this area, and you're quite conversant, aren't you, legal cases?
A I'm not sure what area you are talking about.
Q The area of competency?
A Yes.
Q And you have a particular view when it comes to this type of case with respect to competency, and this type of defendant and this type of case, don't you Doctor?
A If you are referring to the imposition of an insanity defense, over a person's will, yes I have written on that topic, and I have expressed a view.
Q And do you remember in -- and that's, shall we, can we agree that that's your view, something that you propose, as matter of fact, in this article, that I made reference to relating to political defendants, is that right?
A Yes.
Q And that's your prospective on it, knowing that some Courts don't agree with that?
A Absolutely.
Q And remember I asked you at the outset yesterday, if you were contacted in Cleveland because you brought to this case some unique theory or application of psychiatric practices that related to competency, do you remember those questions?
A Yes.
Q And you do have a unique theory with the application of competency cases such as this, don't you?
A I would not call it unique.
Q Well Doctor, did you state, we will let the article speak for itself.
Did you state in this article, and I direct your attention to Page 389 of the article, and again this is the Political Offender, Forensic Psychiatric Considerations, Philip J. Resnick, M.D., directing your attention to the top of Page 389.
"This paper will examine one such case in detail. The relationship between refusing an N.G.R.I. plea and competency to stand trial will be explored. It will proposed that an N.G.R.I.," and can we agree that's an insanity defense, so-called?
A Yes.
Q "An N.G.R.I. defense should not be imposed against the defendant's wishes."
Did you state that?
A Yes.
Q And then you went on to discuss some cases, where courts have considered imposing such a defense, when there was significant substantial evidence of insanity, is that right?
A Yes.
Q And the courts, in substance, were applying a balancing test as to whether or not, not withstanding that evidence, a defendant had a particular religious or political views, that he had a right to make his decision whether it was to his alleged determent or not, is that right?
A That's right.
Q And as you stated in this article, you proposed in this article, that this defense, no matter what the courts say, should not be imposed on an unwilling defendant, is that right?
A That's correct.
Q You propose instead that these defendants just be found incompetent, and if it abused the competency process, well, it really isn't as important as not allowing the insanity defense impose against their wishes, is that the substance?
A No, that's not.
Q All right, well, let me read to you what you said. I read to you from the concluding paragraph of that same article I made reference to, and did you state this?
"The need to safeguard the rights of all defendants to participate rationally in their trial is more important then the occasional abuse of the competency issue."
Did you state that?
A Yes.
MR. LaCHANCE: Can we have that article marked for identification?
MR. KIVLAN: We could mark it as an exhibit if you would like.
MR. LaCHANCE: I would like to get a copy. I would like it marked for identification.
THE COURT: For identification.
THE CLERK: It has been marked, A for Identification.

(Identification A, Article, Marked)

Q Since that Robertson case that you discussed in your article which is now marked for identification, are you aware that there have been some cases since that, one being Frednak, and another being, Godinez, Untied States Supreme Court cases?
A Yes, I am. Frendak.
Q Frendak?
A Yes.
Q And with respect to Godinez, was that the last in the series of cases?
A Yes, that's the U.S. Supreme Court Case.
Q And you are aware, are you not sir, that Godinez, the court in the Godinez case states, in substance, that once a defendant is competent, he is competent, and the question of whether or not he can waive counsel or make other decisions is a separate decision of whether he makes knowing, willing choices, is that the substance of that case?
A No, that's not how I would characterize it.
Q Well, the Court has available to it, the case.
Does the case discuss the fact that there aren't levels of competence, does the Court state that?
A Right, and in fact, I think it supports my view.
Q I can't hear you.
A I think it supports my view.
Q Right, okay, but they say that, that there aren't levels of competence, right?
THE COURT: Are not levels, is that what you are saying?
Q There are not levels of competence, that's what they state in the opinion?
A That's right, a single standard.
Q And the opinion, their opinion, is the law of the land, right?
A Yes.
Q Now, the defendants and other people make these kinds of choices everyday, don't they, Dr. Resnick?
A I'm sorry, the question is vague.
Q All right, well, people have to make choice everyday, is that fair to say, I know it is a broad statement, but is that fair to say?
A People make choices everyday, I agree with you.
Q And for example, you stated that you consider psychiatry to be, in your view, a branch of medicine, is that right?
A Yes.
Q And there are more precise, shall we say, branches of medicine, these kinds of issues, of patients making choices come up everyday, don't they?
A I can't answer that yes or no.
Q Well Doctor, just as an example, don't doctors have to deal on a daily basis with people who have religious beliefs, who refuse various kinds of treatments because of their religious views don't permit them to do it?
A Yes.
Q For example, if you know, the Seventh Day Adventists refuse blood transfusions even though they may save their lives?
A That's correct.
Q And the Christian Scientists sometimes refuse medical treatment that may save their lives?
A Yes.
Q And just ordinary people, refuse to undergo chemotherapy for any number of reasons, is that true?
A Yes.
Q And do you know whether in the medical community, there have been articles published about these issues, are you familiar with any articles in the New England Medical Journal relating to those kinds of issues?
A Not particularly in the New England Medical Journal, but I have read about the topic.
Q And, well, is there a consensus, if you know, in the medical community, that when a competent patient makes a decision, whether it is in their best interest or not, the physician honors the decision, is that correct?
A Absolutely, if it is a competent decision.
Q Now to get more directly on point with this case, defendants in criminal cases make choices as well, is that right?
A Yes.
Q And sometimes against the advise of their attorneys, and other, they decide to plead guilty sometimes, is that right?
A Yes.
Q And sometimes they decide to reject defenses that might be available to them, arguably, right?
A Yes.
Q Are you familiar with any Massachusetts cases in this area?
A No, I am not.
Q Are you familiar, you know of none, you don't any?
A Not in the criminal area.
Q Now, Mr. Salvi and you have discussed his choice to proceed to trial with a defense of silence, do you remember that?
A Yes.
Q And do you remember telling Mr. Salvi words to the effect, I can tell you that isn't going to happen, you can't do that, or words to that effect?
A Yes.
Q That's not true is it?
A (No Verbal Response)
Q That's not true, is it?
A I told him that if the defense of silence was due to mental illness, then there was a risk of him being found not competent to stand trial.
Q Well let's exactly what you said.
MR. KIVLAN: Your Honor, from the transcript, which is Exhibit --
THE COURT: Eight?
MR. KIVLAN: Eight. I'm reading from the bottom of Page 63.
MR. KIVLAN: Just a second, Your Honor.
Q Would you agree with me sir, that this bottom statement is a quote by you directed to Salvi?
A Yes.
THE COURT: What is the statement sir, I don't have it. What page is it on, sir?
MR. KIVLAN: I'm going to read it, Your Honor, but I just wanted, I thought you wanted to know exactly where we were.
THE COURT: Yes.
MR. KIVLAN: I'm sorry it's not numbered, Your Honor.
Q You to Salvi, "Okay, that's fair, that's fair, but the reason I am letting all of this out to you, is because when you have talked about your defense of silence, I had the impression that you might just go through the trial and just decline to discuss the crime, and I am telling you that won't happen. That you can do that, but you are likely to be found not competent to stand trial and sent to a psychiatric hospital."
Did you say that?
A Yes.
Q Salvi corrected you, didn't he?
A I don't recall.
Q Well, did he state to you in substance, that he had a Fifth Amendment privilege, and he could sit through a trial and not say a word at the trial?
A Yes, and I told him that that was true.
Q He can chose to testify or not testify, that's his choice?
A Yes, and I told him that was true.
Q And you know that he told Dr. Haycock that the Commonwealth, that the State, the prosecution has the burden of proof and has to prove his quilt, he doesn't have to do anything, right?
A Yes.
Q And that's absolutely true?
A Yes.
Q And as far as your opinion to this Court about Mr. Salvi making, in your view, a rational decision, you're aware of what facts are available to Mr. Salvi to base that decision on, aren't you?
A I'm not clear on your question, sir.
Q Well, you understand what facts are available to Mr. Salvi to make that decision, he has facts to make a decision, doesn't he, as to whether he wants to remain silent or not?
A Well, at the time I saw him on January 15th, he said, I don't know the strength of the prosecution case.
Q And since that time, he's acquired so-called discovery, the evidence in the case, Grand Jury minutes, police reports, he's talked to you, he's talked to Dr. Haycock, he's talked to his lawyers, he knows all that, right?
A I don't know if he's read all those documents. He's been told the equivalent of the fact that there is very strong evidence against him, yes.
Q And as a matter of fact, Dr. Resnick, he told Dr. Haycock, in substance, that his case, meaning what defense if any that he would have, was weak, and that he had no alibi, he told Dr. Haycock that, did you know that?
A I don't recall it being said that way, no.
Q Well, have you read Dr. Haycock's notes?
A I told you that they were not all legible.
Q They're not all legible?
A Right.
Q The notes, is it fair to say contain some things that Mr. Salvi told Dr. Haycock that weren't in his report?
A Correct.
Q And one of the reasons being that if a defendant makes a statement like this, sometimes the forensic psychiatrist won't include it in the report, because they may fell it is not appropriate to do that, is that fair to say to say?
A I can't speak for Dr. Haycock, but in general that's true.
Q I'm going to show you Page 2.
MR. LaCHANCE: Your Honor, may we approach?
THE COURT: Yes.
MR. KIVLAN: I'll move on, Your Honor, just to save some time.
Q Look Doctor, you say you have read these notes, and you don't know that, or you can't read the notes?
A I told you --
Q They are not legible?
A I told you I attempted to read the notes and they were not fully legible.
Q You interviewed Mr. Salvi on June 18th, did you Doctor?
A Yes.
Q He told you on June 18th that he didn't have an alibi, didn't he?
A I don't recall the exact way that was phrased, we did discuss that. I asked him if he had an alibi.
Q What did he tell you?
A If you would give me my notes, I could refresh my mind.
(Brief Pause)
A What I have written here, is no alibi, that's not clear to me whether he said that categorically.
Q What did he say?
A I don't recall the exact words.
Q Don't you think that's kind of important?
A (No Verbal Response)
Q Do you think that's important in terms of forming an opinion in this case?
A I think it's one of many factors, yes.
Q You're telling this Judge, you don't know what he said about the alibi?
A Well, the gist of it was, that he said that he did not have an alibi.
Q You described the evidence in this case, as you know, as being overwhelming, is that what you said yesterday on direct?
A Yes.
Q And Mr. Salvi has told you that he has no alibi, right?
A Yes.
Q And you're -- by the way, with respect to an insanity defenses, or a lack of responsibility defenses, you have some knowledge in that area, right?
A Yes.
Q And can you tell us approximately in the some thirteen million cases that are filed every year, criminal cases, roughly, the percentage that an insanity defense is asserted, much less successful?
A It is asserted one percent of the time.
Q And the amount that it is successful is a fraction, is that correct?
A Twenty-five percent.
Q And in this case, you are aware that after a sixty day evaluation, at Bridgewater State Hospital, which Mr. Salvi is fully aware about, they made no explicit finding, well, -- strike that -- they made a finding that Mr. Salvi was competent, is that correct?
A They offered that opinion.
Q And that he had no thought disorder or mental disorder that interfered with his ability to rationally consult with his attorneys and make choices in this case, including whether or not to speak with him about the events of December 30, 1994, is that right?
A No.
Q Excuse me?
A No.
Q Well, the Bridgewater report is an exhibit.
Do you agree with me that the Bridgewater report states, in substance, that Mr. Salvi willfully and intentionally refuses to give an narrative to his attorneys, is that what it states, in substance?
A That's what the second opinion states, yes.
Q All right, in conclusion Doctor, I just want to get one other thing cleared.
Yesterday I asked you about a case, the State of Ohio verses Malcolm, do you remember that?
A Yes.
Q And you remembered some things about the case yesterday, but you didn't recall some others, is that right?
A Yes.
Q But you did agree that you did remember that this was a defendant about whom there was no question that he had organic brain damage, is that right?
A Yes.
Q And who went into a public library and just randomly -- strike the word randomly, just shot three women in this library, is that correct?
A Yes.
Q And you also recalled that this individual, there was overwhelming evidence, had been in and out of state hospitals all of his life, state mental hospitals, is that right?
A Yes.
Q And clearly was delusional and hallucinating to the point where he claimed that he heard voices, voices of God, voices of other things, and they came to him through birds and rocks, you acknowledged that yesterday too?
A Yes.
Q And you diagnosed this individual yourself, as having schizophrenia, correct?
A Yes.
Q And you offered an opinion to that court that Mr. Malcolm was competent, not withstanding the fact that he was refusing to cooperate with his attorneys, that he was acting up in the courtroom, and otherwise acting out in court, is that right?
A No.
Q You don't recall that at anytime that, well, you testified in the case, didn't you?
A Yes.
Q As a matter of fact, you testified that Mr. Malcolm was responsible, that he was not insane, is that right?
A That's correct.
Q And during that trial did Mr. Malcolm act up during the trial, speak out and try to speak to the judge?
A I don't recall.
Q I'm not going to take up the Court's time with the entire transcript, Doctor, but are you, I have them if the Court wishes to see them.
So you told the court, that that defendant was competent to stand trial, is that right?
A Yes.
Q And if I understand your testimony, you are telling this Court, that this defendant, you're telling this Court and families of the victims of these murders that this defendant --
MR. LaCHANCE: Objection.
THE COURT: Rephrase the question.
Q You are telling this Court, this defendant, about whom there is no evidence of any psychiatric treatment, about whom the evidence, as you've indicated, showed that he planned, and prepared, executed and almost got away with these murders in Brookline, that this is not competent, is that what you are telling this Judge?
A Absolutely.
Q You said yesterday that a delusion is a fixed belief, is that right?
A Yes.
Q A fixed false belief, that no one can change with logic?
A Yes.
Q Is that right?
A Yes.
Q No matter how much logic, it won't change, is that right?
A Yes.
Q Doctor, isn't it exactly this kind of testimony and the testimony that you gave in the Malcolm case that caused the type of article that you were quoted in the other day about banning psychiatric forensic testimony, isn't that exactly that kind of testimony --
MR. LaCHANCE: Objection.
THE COURT: The objection is sustained.
MR. KIVLAN: All right, that's all I have.
THE COURT: Yes sir, anything else?
MR. LaCHANCE: Yes, Your Honor, I do have a redirect. I would like a brief recess if possible. I would like to review the article that was marked A before I proceed with the redirect.
THE COURT: Doctor, let me ask you a couple of questions if I could. You say you accept as authoritative this D.M.S. IV?
THE WITNESS: Yes.
THE COURT: Do you accept the outlines, or definitions, or whatever they are correctly called for the mental illness that you described, that the defendant suffers?
THE WITNESS: Yes I do.
THE COURT: Do you also accept it for the schizotypal personality disorder as it is stated here?
THE WITNESS: Yes I do.
THE COURT: So I can consult this and you would agree with the definitions that are here, if I were looking for a definition for schizophrenia?
THE WITNESS: Yes, absolutely, Your Honor.
THE COURT: How much time do you want?
MR. LaCHANCE: Probably about ten minutes, Your Honor.
THE COURT: We will take our normal morning recess, about twenty minutes or so.
THE COURT OFFICER: All rise please.

(RECESS)

THE COURT: Yes sir?
MR. LaCHANCE: May I proceed?
THE COURT: Yes.

REDIRECT EXAMINATION
By Mr. LaChance
Q Dr. Resnick, during his cross-examination, Mr. Kivlan kept referring to a single main issue with regard to competency.
Do you consider that there is one main issue or more than one main issue?
A There clearly is more than one main issue in my opinion that Mr. Salvi is not competent.
MR. KIVLAN: Objection Your Honor. This was all taken up on direct. I hope we are not going to be repetitive.
THE COURT: Overruled. Finish your answer.
THE WITNESS: I finished my answer to the question, yes.
Q How many issues do you see with respect to Mr. Salvi's competence?
A Yes, there are four separate main issues in my opinion.
Q And would you identify them for us?
A Yes, the four issues have to do with the fact that Mr. Salvi, first of all, and the one I consider most important --
THE COURT: Quickly sir, you did go through that on direct.
THE WITNESS: I did identify those issues before, yes.
THE COURT: You can state them, but quickly sir, without explanation.
THE WITNESS: Oh, I see. Okay, yes.
A The four issues are the importance of Mr. Salvi getting out his psychotic message, the fact that he can not testify relevantly, the fact that his irrationally refusing an insanity defense as well as his inability to give an account of his whereabouts at the time of the crime.
MR. KIVLAN: In his opinion.
THE COURT: Proceed.
Q Dr. Resnick, during the course of Mr. Kivlan's cross-examination, he talked to you about an article you had written, The Political Offender, Forensic Psychiatric Considerations, is that right?
A Yes.
Q And during the course of that, he showed you and read to you three excerpts from that article, is that correct?
A Yes.
Q One of the excerpts he read was that the need to safeguard the rights of all defendants to participate rationally in their trial is more important than the occasional abuse of the competency issue.
Can you explain to us what the rest of your article refers to by the use of the word, abuse of the competency issue?
MR. KIVLAN: Objection Your Honor. I offered to introduce the article as an exhibit so you can read the thing in its entirety.
THE COURT: This is proper redirect.
MR. KIVLAN: Okay.
THE COURT: You may answer.
A Yes, the article which talked about political offenders talked about the fact that it is possible for the government, particularly in Russia, to take someone who is a political offender and cause them to abuse the competency process by precluding taking someone to trial.
And the fact that that could occur in the United States, on rare occasions, that is an abuse of the competency issue for political suppression, in my opinion, does not outweigh the fact that someone should not have imposed upon them an insanity defense, so that was the context of how the word abuse was used.
Q And in the course of the article, he also quoted to you a line with the words in which you indicate that most political offenders are competent, is that true?
A Yes.
Q Did you also consider in the article, and consider now, about a political offender who may also happen to be psychotic?
A Yes I did.
Q And would you explain to us the issue of the psychotic, political offender?
A Yes, if someone is simply a political offender, it is rather straight forward that they would be competent to stand trial, even if they chose not to cooperate, even if they chose to disrupt the trial.
However, if someone is both psychotic and a political offender, as is possible in Mr. Salvi's case, then it requires a very careful dissecting of issues, as to whether the noncooperation is due to the political goal, or it is due to a psychotic interference.
And in Mr. Salvi's case, it is my opinion that it is the psychotic interference and the importance of getting out his message about Catholic persecution which is separate from a political motive regarding abortion.
In his case, all the statements he sought to release don't have to do with abortion, they have to due with the persecution of Catholics, and that supervening, overwhelming, primary factor is what is interfering, in my opinion, with his cooperation in this case rather than a political statement.
Q Are you able to determine whether Mr. Salvi is, or meets a criteria for being a political offender over the issue of abortion?
A Because he has chosen to remain silent, I can not say categorically whether he is or is not. He may be.
Q In the first interview that you conducted, he did discuss with you some things about abortion, is that correct?
A Yes, briefly, but he again, he set limits on what he would say about it.
Q And none of those statements that he made to you during that first interview, indicated any call to violence, did they?
A No, not at all.
Q As a matter of fact, isn't it fair to say, statements that he made were equivocal on the nature of abortion and his feelings about abortion?
A Yes, he was not that forth coming, really, and I think the point here is that if his goal was to make a political statement about abortion, I would expect him to do it, but instead each written statement, each outburst in court, has focused instead on Catholic persecution rather than on abortion.
Q Sir, during the course of your testimony, you were asked about the Malcolm case, do you recall that?
A Yes I do.
Q And in that case, Mr. Kivlan brought out that an individual who was both hallucinating and psychotic, you opined was competent, is that right?
A Yes.
Q Can you tell us what the distinction was between that case and the Salvi case?
A Yes. I think the principle point here is, is that simply a diagnosis of schizophrenia, or active hallucinations, or delusions, do not categorically make someone incompetent. It's only when those delusions interfere with the functional capacity to assist counsel, that someone would rise to the level of incompetence.
So in Mr. Malcolm's case, yes he was psychotic, yes he had the same diagnosis, but it did not keep him from cooperating with counsel.
Whereas in Mr. Salvi's case, it is my opinion that the nature of his psychotic thinking, his idiosyncratic, peculiar, delusional thinking does not allow him to rationally weigh the options and rationally participate in the decision making regarding his trial, and that's quite separate from any political goal he may have.
Q Now, you were asked if you knew certain information or evidence relevant to Mr. Salvi's alleged offense, is that right?
A Yes.
Q And the thrust of those questions dealt with planning and purposefullness that could be inferred from the facts that Mr. Kivlan presented to you, is that correct?
A Yes.
Q Now, can you tell us sir, whether in your opinion an individual who can plan and even perhaps almost get away with it, if that person is also psychotic, can that person be incompetent?
A Yes, and I think the best way I could explain that is to take an actual case which is the case of Mr. Hatfield in 1800 who fired over the head of King George the third. The reason he took a shot at the king was because he believed that the state would then kill him and he would then save mankind as Jesus did.
So here we have someone who planned, and in fact, he practiced just like Mr. Salvi the day before the shooting with pistols. He planned the crime, his goal was a psychotic one, and his goal was then to be executed by the state, and in the sense that he had self defeating behavior, he would not be competent to stand trial.
So here is an example of a man capable of planning, diagnosis of psychosis, but because the nature of his illness would cause him to commit an act for psychotic reasons and then not be able to cooperate rationally, because he thought the state killing him would actually bring about the salvation of mankind.
Q Now sir, you were also asked on cross-examination, a number of questions about whether you had read certain materials, certain Catholic materials, certain Fatima materials, and certain other materials that were found either in John Salvi's apartment or in John Salvi's vehicle, after the alleged offense.
Have you read those that have been provided to you, sir?
A Yes, I read them all, last night in detail.
Q And those questions, I take it, dealt with the issue of whether or not certain aspects of what you called Mr. Salvi's delusions were common to other individuals, is that right?
A Yes.
Q And what is the significance of whether or not delusions are common to other individuals?
A If a small group of people have a very unusual belief, that would not be technically defined as a delusion because if a large number of people share a belief within a given culture that is not consider a delusion.
Q Now sir, did any of the materials that you read, the materials that were provided to us, change your mind about whether John Salvi was suffering and is suffering from a delusion or delusions?
A No, the material, the only references that I considered significant were references to Free Masons. However, they did not replicate Mr. Salvi's delusional system. For example, none talked about the sterilization of Catholic males by injection of spermicide at birth. None talked about printing United States currency, letting people out of prison to do that, by the Vatican. Those ideas were not at all replicated in the written material.
And it is quite normal for people to take a kernel of truth or a kernel of concern and incorporate it in delusions.
So even though, for example, a substantial number of people may believe that there may be life on Mars, if someone believes that they were raped by martians last night, that would still be considered a delusion, even though others might share the believe that there may by life of Mars.
Q Yesterday afternoon, there was an outburst by Mr. Salvi in the courtroom, did you observe that sir?
A I did.
MR. LaCHANCE: Can I have Exhibit Number 8? Not 8, the last one. Thank you.
Q I show you Exhibit 7, which is what Mr. Salvi was attempting to read to the Court, and ask you to read through that paper, if you will.
A Thank you.
MR. KIVLAN: Objection. It's an exhibit.
THE COURT: Overruled.
(Brief Pause)
Q Have you done so?
A Yes.
Q Does the fact of the outburst yesterday and the content of the information which Mr. Salvi wished to impart to the Court, to the public yesterday, does that have any effect on your opinion with respect to competency?
A Yes it does.
Q And can you tell us what that is?
A Yes, the fact that Mr. Salvi sought to introduce material in Court, which had to do with his themes of Catholic persecution, and credit, and debt enslavement, suggest again, that rather than focusing on the central issues, which if this hearing is competence to stand trial, or the shooting of abortion workers, the themes which are in his mind, which he is preoccupied with, are the delusional message that is so important for him to get out.
And that supports my earlier contention that that dominant psychotic belief and getting the message out is shifting his focus away from the issues and not allowing him to fully appreciate the jeopardy that he is in because of this psychotic emphasis.
Q What about the first part of the statement Doctor?
A The first part of the statement addresses the issues as to whether there might be bias from the bench and I would not describe that as irrational or unrelated to his appropriate concerns.
Q Sir, in observing the outburst and based on the other information we have with respect Mr. Salvi, do you have an opinion as to whether that outburst constituted part of a malingering plan to appear incompetent?
A I do have an opinion.
Q What's that?
A It is my opinion with reasonable medical certainty that Mr. Salvi is not malingering. That was supported by Dr. Haycock's opinion, and as I observed the outburst yesterday, again, he did not try and look crazy, he tried to get across this important theme to him, and in my opinion, it was not faked, but was in support of his psychotic message.
Q You mentioned Dr. Haycock, you were asked on cross-examination whether you ever contacted Dr. Haycock, let me ask you this sir.
You saw Mr. Salvi first, is that right?
A Yes I did.
Q Did Dr. Haycock ever call you to attempt to talk to you about your observations of Mr. Salvi or your opinions?
A He did not.
Q Now sir, yesterday afternoon, a large portion of a video tape of your interview with Mr. Salvi was played.
On direct examination, you had an opportunity to comment on the significance of what you saw in that portion of the video tape of Mr. Salvi's competency, didn't you?
A Actually I had an opportunity on direct to comment only on the prearranged excerpt. I have not yet had an opportunity to comment on the part shown by Mr. Kivlan.
Q And with respect the part shown by Mr. Kivlan, yesterday are there aspects of that that are significant with respect to your evaluation of Mr. Salvi and your determination of whether or not he is competent?
A Yes there are.
Q And would you tell us what those portions are?
A Yes, the potion shown later in the day showed some good examples of concrete thinking, that is, when he was asked to interpret a proverb such as don't cry over spilt milk, his answer had to do with it will smell after three days, rather than seeing the meaning of the proverb, he took it in a very literal way. That's characteristic of schizophrenic thinking.
Secondly, it showed examples of the Catholic persecution themes insinuating themselves into irrelevant areas.
When I asked about the proverb, people in glass houses shouldn't throw stones, his answer was not only concrete, talking about breaking glass, it also again raised the Catholic persecution issue, and that is further evidence that if he were given the opportunity to testify, he would very likely not testify relevantly but continue to insinuate the Catholic persecution themes.
The other example I think that was shown in the latter portion of the tape was that he is very hard to interrupt and redirect. I felt the best example of that was when he was talking about adding the deck to the house and I, as an example, and I kept saying let's go onto another area, and he kept persisting.
So that further shows that, in my opinion, he would both be hard for his attorneys to gather information from, and also it would be very hard to direct on either direct or cross-examination.
Q That was the view of John Salvi on January 15th, is that correct?
A Yes.
Q You saw him again on June 18th, is that correct?
A Yes.
Q Did you notice a significant change between those two dates?
A There were some changes.
Q Can you describe those for us?
A Yes, in the June interview, Mr. Salvi was less forthcoming about the delusional persecution themes, but he was just as persistent in not answering questions which would be helpful, continued to say, that's personal, I won't discuss that, ready to interrupt the interview rather than if I pressed him on an issue.
So the themes which interfered with his competence were unabated, but he was less revealing of some of the psychotic themes, and I think that is relevant in the sense that Dr. Haycock may or may not have had a chance to see the delusions in their most blatant form because by the time I saw him in June, he was less willing to share those.
Q Is that characteristic in schizophrenics?
A Actually schizophrenia, it may get better, it may get worse, it may vary, so I wouldn't say it was particularly characteristic, but it is certainly consistent with schizophrenia.
Q Let me ask you this, in that second interview with Mr. Salvi, was he still adamant that he is competent, does not have mental illness?
A Yes, he was very strong in his desire to go forward with the trial, to refuse the insanity defense, and to deny that he was mentally ill.
MR. LaCHANCE: Thank you, I have no further questions.
MR. KIVLAN: Just very quickly, a couple of things.

RECROSS-EXAMINATION
By Mr. Kivlan
Q You have already testified yesterday and acknowledge, that most psychotic people are sane, right?
A Yes.
Q Didn't you say that?
And with respect to this Malcolm case, are you trying to fool this Court about that case?
A No.
MR. LaCHANCE: Objection.
THE COURT: Rephrase the question.
Q The Malcolm case, you tried to interview Mr. Malcolm, didn't you, in connection with the competency evaluation, right?
A I did interview him.
Q Well, the first time you tried to interview him, do you remember trying to interview him through a jail door, because he was kicking and yelling and screaming, do you remember that?
A I don't remember that.
Q Do you remember he was insulting you in the process?
A I'm sorry, it's been many years ago.
Q Well, let me show you the transcript.
You'll agree, this is direct examination of Philip Resnick by a Mr. Howsell, is that an Assistant District Attorney in Cleveland?
A Yes. Could you give some context --
THE COURT: Louder Doctor, I can't hear you.
THE WITNESS: Are you referring now to hearing on competency or insanity? Hearing on competency?
Q Right.
Question, "Tell us what happened on the first occasion?"
Answer, "On the first occasion, Mr. Malcolm was detained in a small holding cell in our area. And by the time we were ready to see him, he was very angry and frustrated, and kicking against the door and swearing. I went to see if I could calm him down and talk to him through the door. He was extremely angry, insulting, and cursing, and declined to be interviewed on that occasion. So that was a very brief interview through the door."
A Yes.
Q Is that right?
A Yes.
Q And then you interviewed him again after that, right?
A Yes.
Q And by the way, contrary to what you suggested on redirect, Mr. Malcolm was also uncooperative with his attorneys, wasn't he?
A Not to the point it interfere in getting a fair trial.
Q Well, let me direct your attention to a further portion of your testimony.
Question, "What significance --"
I will read the whole thing so you don't have any question about it.
Question, "On Page 5 of the of the report, there has been some testimony by the prior witness, Dr. Alcorn, relative to certain delusional ideas, I direct you to Page 5, first full sentence on Page 5, actually the full sentence, able to interpret some proverbs appropriately, he expressed numerous delusional ideas. I think that's in the area we want to get."
"It goes on to say, `These had to do with notion that he hears the voice of God, which he calls the Christ within.'"
"It goes on to say, `He stated he began studying religion in 1975 at his Mother's instigation, this also related to being involved in alcoholics anonymous. He stated he got to far into religion and then he began to actually hear God. He said that God is actually a piece of expletive, in an agitating,'" looks like a spelling error, "worm. He angrily blames God for creating all the evil in the world."
"He stated that God speaks to him in a small nasal mocking voice. He also claims that God talks to him through other people, through birds and through dirt. He describes having to be certain when he actually hears God voice and when he hears other voices."
"In order to be certain about this, he uses the I-Ching, he claims he has memorized this oriental book of wisdom. What's the significance of those things that Mr. Malcolm would tell you, Doctor, relative to his competency to stand trial because they appear in your report?"
Answer, "Well, in ascertaining whether a defendant is competent to stand trial, one looks at current mental functioning. This defendant showed some degree of active psychosis, which you described in detail from the mental stasis examination."
"The question then becomes as to what extent this psychotic material would interfere with his ability to pay attention at the trial and be able to understand what is going on because the defendant did not have his delusions involved in the justice system or the judge in the case, and understood the roles and the proceedings at the trial."
Did you, -- oh I'm sorry.
"I felt that the delusional belief would not directly interfere with his capacity to understand and participate in the proceedings."
Did you say that?
A Yes.
Q Then they go on to ask you.
"And in spite the fact that he exhibited an explosive personality at times?"
Answer, "That's correct."
Question, "How about being uncooperative at times, does that still indicate to you that at other times he's not explosive or is cooperative, and therefore his ability to stand trial would continue?"
Your answer, "I believe his noncooperation was elective rather than involuntary or a part of the psychosis."
Did you also state that?
A Yes.
Q Now, during this trial, this defendant spoke out as well, did he not?
A Yes.
Q And he asked the judge for a lighter at some point for a cigarette, in open Court, didn't he?
A I didn't know that.
Q Well, you were at the trial, weren't you, you testified, do you know it occurred during your testimony?
A Oh, I'm sorry, I didn't know which you were talking about.
Q Page 1967 of the trial transcript.
"Defendant: Yes, can I have your lighter, I don't have any matches."
On Page -- during your testimony, your testimony, in open Court, this defendant also stated, among other things, "I told you that loss --
A Where are you?
Q I'm reading right here, Line 19.
"I told you that loss --
A This is the defendant?
Q This is the defendant. During your testimony in open Court.
"I told you that loss and failure would result. The loss experience of the loss, that's when the voices mock me after I failed. I don't care. I just can't stand to listen to somebody lie. I can't take it. I can't have somebody f-ing lying and just --"
"The Court: Take him out."
Now did that happen during that trial?
A During the competency hearing.
Q Did it happen at any time, during the trial or the competency hearing, did that happen?
Obviously it happened, right?
A I'm sorry, were you reading from the trial or the competency hearing?
Q This I read from the trial.
A Oh, you confused me, I'm sorry.
Q Well, he was on trial, right?
A After the competency hearing he went to trail, yes.
Q And you testified he was responsible, not insane, right?
A Yes.
MR. KIVLAN: That's all,Your Honor.
THE COURT: Briefly sir, we have to end this. Anything further?
MR. LaCHANCE: Yes Your Honor, sorry I didn't hear you.
THE COURT: Sir, on what areas, because this is your witness, I have to stop this at some point.
MR. LaCHANCE: Okay, just one question.

REDIRECT EXAMINATION
Mr. LaChance
Q Is what Mr. Kivlan just read to you from the transcript change your mind about whether or not somebody who is psychotic can also be incompetent?
A No. In fact, I think it was a very clear example of how the words he quoted said that in that case the psychotic symptoms did not interfere with the critical capacities to participate in his trial.
And in my opinion, Mr. Salvi, his psychosis does interfere with the critical issues necessary to get a fair trial.
THE COURT: Thank you. Anything else. On this issue only sir?
MR. KIVLAN: Yes.

RECROSS-EXAMINATION
Mr. Kivlan
Q Your opinion about psychosis is based on your belief that these statements are a delusion that he makes, right?
A Yes.
Q That delusion being a fixed belief --
THE COURT: I understand that, sir.
MR. KIVLAN: Okay, all right, I withdraw.
THE COURT: Thank you, you can step down, sir.
THE WITNESS: Thank you.
THE COURT: Yes?
MR. LaCHANCE: Dr. Kinscherff please.
THE CLERK: Raise your right hand please.
(Witness Complies)
THE CLERK: Do you solemnly swear the testimony you are about to give to the Court in the case now in hearing shall be the truth, the whole truth, and nothing but the truth, so help you God?
THE WITNESS: I do.
THE CLERK: Thank you, you can have a seat.
THE COURT: Speak louder than normal because of the air conditioner.
THE WITNESS: Yes Your Honor.
THE COURT: Thank you. You may proceed.

DIRECT EXAMINATION
Mr. LaChance
Q Would you tell us your name and spell your last name?
A Dr. Robert Kinscherff, K-I-N-S-C-H-E-R-F-F.
Q What is your profession, sir?
A I am a clinical psychologist.
Q What current position do you hold?
A I am currently a Senior Forensic Psychologist for an organization called the Center For Health and Development. I'm also Associate Director for Forensic Services at the Law and Psychiatrist Service at Mass General Hospital.
Q Would you describe your education and training for us, sir, in the field of psychology and any other related illness?
A I received my Bachelor's in 1977 from University of California at Berkeley, a Master's from the University of Chicago in 1980. Those were not in the fields of psychology. I received my Doctorate in Clinical Psychology from the City University of New York in 1988. And in 1992, I received my J.D. Degree from Harvard Law School.
Q Do you hold any licensures in this state?
A Yes I do.
Q What are they?
A I have a full licensure for the practice of psychology in Massachusetts. I have the similar license in Texas. I've also completed a course of training and examination to be permitted, the designated forensic psychologist which is required for persons to conduct statutory evaluations in Massachusetts, such as competency to stand trial evaluations, or not guilty by reason of insanity, criminal responsibility evaluations on order of the court.
Q Do you hold any academic positions?
A Yes I do.
Q Describe them for us, please?
A I'm an instructor in the Department of Psychiatry, the Division of Psychology at the Harvard Medical School. I am also a lecturer at the Boston University School of Law where I co-teach the Law and Psychiatry Course.
Q Do you have experience, sir, in conducting psychological services related to competency examinations?
A Yes I do.
Q And would you describe that experience for us sir?
A Prior to 1993, I conducted a number of supervised evaluations and completed an examination in the relevant law in order to be designated in D.F.P., designated forensic psychologist.
Since then I have conducted specifically competency and criminal responsibility questions probably one to four times, annually. Primarily in inpatient settings.
And I have also supervised the work of other persons conducting these evaluations as they try to complete the D.F.P. process since 1994 when I was designated a forensic mental health supervisor.
Q Do you know an individual named John Salvi, sir?
A Yes I do..
Q And is he present in the courtroom?
A Yes he is.
Q Would you point him out for us, please?
A He's the gentlemen here in the blue blazer.
MR. KIVLAN: May the record reflect that he has identified Mr. Salvi?
THE COURT: Yes.
MR. KIVLAN: Thank you Your Honor.
Q How did you come to be involved in Mr. Salvi's case?
A I came to be involved in Mr. Salvi's case when I was approached by Dr. Schouten of the Law and Psychiatry service who indicated to me in early February that he had been contacted by defense counsel, and he thought that a psychological testing battery should be conducted on Mr. Salvi's as part of the evaluation of the case.
Q And did you agree to perform services for Mr. Salvi under the -- at the request of Dr. Schouten?
A Yes I did.
Q And having performed that battery of test, did you also do some additional things other than testing?
A Yes I did. I participated in two interviews of Mr. Salvi, both of them for approximately two hours each. Once on the 23rd of February and most recently on the 23rd of July.
Q That was last Sunday?
A That was last Sunday, yes sir.
Q Did you interview him alone or with somebody else?
A I was with Dr. Schouten at the two interviews.
Q On both occasions?
A On both occasions, yes.
Q Did you see Mr. Salvi separately on another occasion?
A For the psychological testing on the 13th of February.
Q Would you describe for us, what psychological testing is and how it fits into the picture of competency?
A Yes. Psychological testing is a method of gathering information that is independent from clinical interview. There are a variety of different kinds of psychological tests depending upon the function or capacity that you are attempting to evaluate or gather information on.
The best tests are ones that have a methodological construction and statistical understanding of how they operate and how they may look across the population.
In this particular case, I selected measures of his thinking, his cognition, specifically an intelligence test, also measures intended to get at personality functioning and psychological processing.
Those test do not in and of themselves give a definitive answer to the specific question of competency to stand trial, but they are one source of information about how an individual experiences the world, thinks about the world, the quality and nature of those processes.
Q Is testing also related to diagnosing mental illnesses in an individual?
A Yes, it is often helpful in gathering data that can be put together in the puzzle of pieces that you use in making a diagnostic determination.
Q When did you administer the test to Mr. Salvi?
A On the 13th of February, of the this year, 1995.
Q Are you aware of other psychological tests being administered to Mr. Salvi at Bridgewater State Hospital?
A Yes I am. I have been provided the report of the psychological testing conducted by Dr. Frank DiCataldo.
Q Did he administer psychological tests before or after you did?
A After I did.
Q What tests did you administer to Mr. Salvi?
A I administered the Wechsler Adult Intelligence Scale, the revised version. I administered the, what's known as the M.M.P.I. 2, the Minnesota Multiphasic Personality Inventory, and I administered the Rorschach Psychodiagnostic Battery.
Q With respect to the Wechsler, would you describe for us, what kind of test that is?
A It would go into the general category of an intelligence test, but there are actually several different subtests that make up the instrument. They are intended to tap such things as attention, concentration, fund of general knowledge, the way in which a person will interpret social information both visual and verbal, and a variety of similar cognitive tasks.
These are then scored in a way that profile the individual compared to the general population and there is a scoring system that gives you what's called an I.Q., the intelligence quotient.
Q And you performed that test with respect to Mr. Salvi?
A Yes I did.
Q Could you describe how that test was administered to Mr. Salvi?
A The test itself, comes in a briefcase, and it's done in the same way at each administration. The subtests are administered one at a time and it usually takes somewhere on the order of one to two hours to complete the full administration.
Q Would you describe the administration of the test to Mr. Salvi?
A On Mr. Salvi, particularly, my experience of that, sir?
Q Yes.
A During the testing with Mr. Salvi he showed a number of unusual responses. He had difficulty with this test in remaining within the instructions of the test. There were points at which he seemed to lose touch. He seemed to be distracted and I had to bring him back to the test at hand. Sometimes this required that I call his name or mention his name several times in order to refocus him.
Q What was he doing, when you say he appeared distracted?
A He was sitting and starring. At other times he was quite involved in the testing process, did not require refocusing or re-administration of the instructions to the subtest.
There were times at which he, without any provocation that I could detect, seemed to oddly grimace or to give a sort of short laugh and a smile in which he looked sort of very tense and would laugh, give this odd grimace and sort of look back at me again and return to the task at hand.
Q Did that have some significance to you, those observations in accessing Mr. Salvi?
A Yes they did. They were one of the features that I would look at when assessing his test results in order to see whether or not the test itself actually was reliable and valid in assessing his actual intelligent processes, and also to look and see whether the external behaviors were consistent with the kinds of thought processes that were reflected in the testing.
Q You referred to three subtests, directing your attention to the first subtest, directing your attention to the first, can you describe what that is and how it is administered?
A There is actually a number of subtest. There is one, two, three, four, five, six, seven, eight, nine, ten, eleven of them.
Q Eleven of them, I'm sorry.
A The first subtest is the information subtest, this is essentially a fund of general information test that is sensitive to such things as cultural exposure and formal education.
Q And could you describe how that is administered?
A I simple ask him a series of standardized questions. I note down his response, and then a score is assigned to his responses to whether or not it was correct or incorrect.
Q Any significance to the --
A He's fund of --
Q -- the nature of the responses he made to those questions?
A The fund of information that he offered himself was actually, technically, in the average range for a person of his age and demographics.
There were unusual features to it, for example, on Question 5, he showed some concreteness of thought when asked the question, in what direction does the sun rise, he inquired, he indicated that it depends on where you are living.
When I suggested to him that we should perhaps, just give me the answer where the sun rises and what direction does the sun rises if you happen to be living in Boston, he had what appeared to be a lapse of attention for roughly twenty seconds and then began under his breath saying the sun rises in the sun rises in the, then I suggested that he just go ahead and take a guess, and he declined to take a guess.
He then went on to answer a whole series of questions correctly. When he got to the twenty-seventh question, he showed -- I'm sorry, the twenty-sixth question, he showed what appeared to be a looseness of association. That is, he heard a word and instead of responding to the meaning of the word, he first imposed his own idiosyncratic meaning and then sort of went of on his own tangent.
The particular question asked the
respondent if they can identify what Madame Curie
was famous for, or noted for, and he responded that Madame Curie, this is a quote, "Developed a sauce called a puree sauce. She taught pygmy cannibals in Africa how to puree tomatoes using the technologies of 1812."
Q You mentioned the term looseness of association, what does that specifically mean?
A Looseness of association is a process by which the meaning of information to a person is disorganized because instead of staying within the frame of the meaning, or the frame of the information, they begin to go first from Curie, to puree, to tomatoes and on like that.
Q What's significance does looseness of association have in diagnosing mental illness or in determining psychological status?
A Looseness of association is a disturbance of thought that is characteristic of psychotic processes.
Q Have you finished describing the first subtest, sir?
A Yes I have.
Q Could you go on and describe the rest of the subtests that Mr. Salvi took in any significant responses he gave?
A Yes.
Q If you would, please?
A The second subtest is one called picture completion, this is essentially a test of the ability of an individual to locate relevant visual information.
On this