Call it the Inspector Javert (or Kenneth Starr?) approach to evidence about mental health: cross-examine the psychiatrist on the defendant's insanity defense, even though you've been instructed not to by the court; argue that psychiatrists create excuses for criminal defendants; then, wrap it up by calling the defendant's mental health witnesses high-priced whores.
Prosecutor Thomas Zawada was loaded for bear when he began his case against Alex Hughes, who was charged with murder. His opening statement was: "Alex is nothin' but a mean drunk...there is no insanity in this case...there is no mental illness in this case." Never mind that in the three years between Hughes' arrest and the start of the trial, four different mental health professionals examined him and pronounced him paranoid, and he was medicated for schizophrenia.
Zawada also stated that the court had found Hughes competent, even though competence was not an issue for the jury. In his final argument, Zawada stated that the defense counsel had paid one psychiatrist to fabricate a diagnosis and mentioned the $950 fee. He called other mental health experts in the case "mouthpieces" and referred to a defense witness as "some $4,000 or $6,000 hired doctor." Finally, Zawada fused defendant and witness into one, saying: "You've seen the defendant testifying, except it was in the form of a doctor, all suited up nice and neat a tie, shirt, suit, nice and presentable, good credentials and everything else."
Holding: While the "cumulative error" doctrine holds that several non-errors and harmless errors
Cannot add up to one reversible error, the rule does not apply when a court evaluates a claim that prosecutorial misconduct deprived a defendant of a fair trial. Here, "there was never much doubt that Defendant had done what he was charged with doing." The defendant notwithstanding, the prosecutor's rebuttal during final argument was "a masterpiece of misconduct," said the court. He "went out of bounds, and out side the record, to argue that psychiatrists create excuses for criminals." His failure to retain a mental health expert in the case "was obvious," noted the court. "Doing so would impair his trial strategy of ignoring strategy of ignoring facts he did not like. That is a dishonest way to represent the state in any case, and it was especially dishonest in this' case, where the evidence of mental-illness was overwhelming."
 | Stanley M. Levco, J.D. Chief Prosecutor |
Hon. Stanley M. Levco comments: While the Hughes case was reversed as a result of a cumulative effect of misconduct, which included improper cross-examination of the medical expert on insanity it's doubtful that the cross-examination alone would have warranted reversal.
The misconduct cited by the court in Hughes consisted of implying the defense fabricated the insanity defense, asking argumentative questions, and referring to previous competency hearings of the defendant after being ordered not to do so. While violating an order from the bench can often lead to reversal, argumentative questions and suggesting a defense is fabricated are rarely problematic.
Hughes does not present a clear-cut example of reversible error stemming from cross-examination of a medical expert. Nevertheless, the personal attacks by the prosecutor point to the thorny issue of how to effectively cross-examine a competent adverse medical expert.
Certain tactics may be effective in cross-examining an unprepared or biased medical expert. For example, after you impeach some "experts" on their qualifications, fees, history of only testifying for the defense, or limited knowledge of the facts, their credibility has effectively been destroyed ever before the substance of their opinions is broached.
However, in Hughes it appeared that the psychiatrist who testified on behalf of the defendant had routinely testified for the state (for he was himself a state employee) on a number of occasions, had significant contact with the defendant, and was contacted by the defense only after he concluded the defendant was insane. With this kind of witness, the "in-your-face" approach used by the prosecutor is likely to backfire. You probably can't destroy such a witness. The danger in trying is that every time you attack and fail, the witness's opinion becomes more credible. A better tactic is to try to chip away.
First, take the witness's deposition. You're free to attack in any way in a deposition, free of the fear that a jury will hold your misses against you. You should be able to get a-good idea of what will work and what won't later on at trial.
Even if you don't take a deposition, you can still cross-examine effectively. For example, in Hughes the doctor originally suspected malingering. By the time he testified, he appeared to have changed his mind. Careful exploration of the witness's details could have brought out possible inconsistencies between his earlier diagnosis and his current assessment. Any medical expert should concede the possible fallibility of his opinion (and if he doesn't, that's even better) and the subjective nature of mental health examinations.
And what about all the statements the defendant made to the medical expert? These should be explored in detail. After all, the defendant is, or should be, aware of what the stakes are and what his motive(s) are in raising the issue of "insanity." Reviewing the defendant's statement with the medical expert also gives the prosecutor a chance to emphasize the defendant's apparent guilt and the incriminating and offensive facts of the crime. In most crimes there are some actions that contradict legal insanity: e.g. preparation- for the crime and efforts to avoid detection and capture.
So, when you're confronted with a medical expert who is formidable, don't attack him personally and don't expect a quick or easy kill. But with an intelligent and measured approach, you should be able to inflict enough small wounds to persuade the jury to disregard, or cast serious doubt upon, his opinion.
