1.Psychological Testing Admissibility Ruling
49 linesJune 3rd, 2019
THE COURT: Anything before we get started? I worked on the charges and y'all's suggestions and it's pretty close on what y'all disagreed with is what I'm going with.
CASEY SECOR: I have one matter, Your Honor.
THE COURT: All right.
CASEY SECOR: As the Court's aware, Mr. Jones' Defense Team objected to the testing that was conducted pursuant to Dr. Frierson's request to Dr. Kruse. And there are -- there was a motion filed about that and discussion on the record at various points prior to trial. And I would just like to bring to the Court's attention what occurred on January the 31st, 2019 before Your Honor where Dr. Frierson was here for a hearing and Mr. Young confirmed with him that he had received a letter from the Defense objecting to the testing that was going to be performed. And Dr. Frierson confirmed that he had, in fact, received that notification. And there was discussion on the record about the reasons for the Defense objecting to the testing being given. Your Honor indicated that you wanted the testing to go forward, but specifically wanted to ensure that it was conducted with the advice of counsel. And the record reflects that Your Honor, in addressing that issue, said with the upcoming testing, did he volunteer to do it with the advice of counsel. Did he make his decision appropriately. Those are obviously the things that Your Honor wanted to ensure occurred. And they didn't, they did not occur because the Defense was unaware of when it was scheduled to take place. Mr. Young was under the impression, based on his conversation with Dr. Frierson, that Dr. Frierson needed to meet with Tim --
THE COURT: Now, we've already put all this on the record. Get to your point.
CASEY SECOR: My point is, Judge --
THE COURT: You're summarizing everything consistent with the way I remember it, but --
CASEY SECOR: Yes, sir. Yes, sir. The issue is that Your Honor wanted to ensure that Mr. Jones did this testing only with the advice of Counsel in order that he may make this decision appropriately. And that didn't occur because the day that he was brought over there, he didn't know the testing was going to be done that day. Mr. Young didn't know the testing was going to be done that day. So the testing was conducted without the advice of Counsel. We would, therefore, argue that it was done in violation of the Sixth Amendment right to Counsel. Defense Counsel was not present, did not know that it was going to occur because Mr. Young believed that it was a subsequent meeting that Dr. Frierson was going to need to have with Tim. I also would note that Dr. Frierson's testimony included his reliance on Dr. Kruse's testing. And so we would object to the testimony pursuant to Rule 403 as cumulative, unnecessary and confusion of the issues.
THE COURT: All right. It's my recollection y'all made a timely objection during Dr. Frierson's testimony, which was fine, and I ruled on it then appropriately consistent with the facts you re-outlined. The State presented some facts that there was a knowing waiver and Dr. Frierson went over those rights with Mr. Jones. So I think you're protected on the record. But Dr. Frierson did an independent evaluation for the Court, not anyone else. And I think my ruling was that Mr. Jones knew what he was doing when he did it and, you know, it was part and parcel of the entire evaluation. But no part of that evaluation would be singled out for impeachment purposes, things like that. We discussed that way in advance is there wouldn't be questions of, for instance, have you ever told a lie before in part of the tests, that wouldn't be used by either side against any party for any reason, those kinds of things. It was cumulative nature of the tests and the testing the psychologist was needed by Dr. Frierson to have a full and complete evaluation in his determination. What else would you like me to do?
RICK HUBBARD: Your Honor, from our standpoint, we understand the letter went to the Defense Team. It was directed to Mr. Madsen, he was put on notice. Obviously, the Defense has no Fifth Amendment rights implicated here because once you claim NGRI, we can move for testing, that was done. Dr. Frierson has already established that it was done voluntarily, we went into that. Judge, there is nothing else.
THE COURT: I think it's just part and parcel of the entire evaluation that Dr. Frierson did and there wasn't a violation of the Fifth Amendment right to remain silent. Y'all discussed that and then -- whether the lawyers made a mistake or not, I'm not going to say.
CASEY SECOR: Well, I would just say, I didn't say Fifth Amendment, I said Sixth Amendment right to Counsel. Because he had a right to Counsel at all stages of the proceeding.
THE COURT: Now, I think he did.
CASEY SECOR: But he specifically did not at that moment when Your Honor said on the record that you wanted to ensure that he did. And that --
THE COURT: No, no, he was here when I said that. I wasn't with Dr. Frierson, so don't put me over there.
CASEY SECOR: No, no, no, I mean when he was brought for the testing, there was no advice of Counsel. And there's no way to determine whether or not that decision was made appropriately because I assure you that had somebody have been there, we would have instructed him as we had previously to invoke his Fifth Amendment right.
THE COURT: I think -- I don't know what you're asking me to rule on. I think that's been ruled upon. You've protected yourself, but it's done.
CASEY SECOR: Your Honor, I would also just like to inquire with the Court, I believe that the Court said that there was going to be a limitation to the extent to which the specific questions in --
THE COURT: And I don't believe that was violated at all.
CASEY SECOR: No, I mean, going forward today.
THE COURT: No, I haven't said that. I don't know who the State's going to call.
RICK HUBBARD: No, no, no. The understanding -- I'm calling Dr. Kruse. She's been brought up even by their experts, so I'm calling her in reply. They called Dr. Frierson, not me. So Dr. Kruse's work has been brought up, it's been juxtaposed with the work done by Dr. Tora Brawley, who has not testified. I have a right to go into it. The only thing that we've talked about is we wouldn't have the underlying data because sometimes prosecutors will misuse the questioning and underlying data. But I get to go into her tests, what she did, what type of tests she did. Judge, I'm not going to ask specific questions of those testing. I don't know that I'd understand --
THE COURT: That's what you can't do, is you can't say didn't you answer question 13, yes, but you lied in the past one time to your mother when you took a cookie. You know, no, no, that is not allowed.
RICK HUBBARD: Right but I do want to let the Court know is what I plan to do is like, for instance, there's something called effort testing, so there's three different tests she gives. And Dr. Kruse is going to explain what that is and what her results were and why she was able to move on from there and test cognitive functioning. And then she moved on to cognitive testing. She gave a whole battery of testing there. She's going to explain the different types of tests, what she's looking for. But we're not getting into specifics of what did question whatever say and --
THE COURT: No, that's right.
RICK HUBBARD: -- how did that go.
THE COURT: Yeah.
RICK HUBBARD: One other thing I do have is there is the -- there's a copy of the advice that was given to Mr. Jones. I've got it here and would like to make a Court's Exhibit of that.
THE COURT: All right.
COURT REPORTER: Judge, that's Court's 103. (WHEREUPON, Court's Exhibit number 103 was marked for identification only.)
CASEY SECOR: I would just suggest that if the waiver were brought to the Court signed by a Capital Defendant without consultation with his lawyers, I think that the suggestion that it would just be admissible because there's a signed waiver would be ordering on would be absurd because the whole point is that you have a lawyer and you have to go through your lawyer. And that's why we have --
THE COURT: Here's what is kind of odd to me is, we had a huge hearing on this thing on whether we could have the tests done, seems like it was half a day, and we discussed it. And when we left that hearing, it was we'll let you know if he's going to refuse to take the tests or not. Three days later, I heard he took the tests, nothing else. And somewhere in there the Defense didn't realize that the upcoming tests were going to be those tests. For whatever reason, he took the tests. I don't think that it's -- you know, he took the tests. He knew the tests were coming up, Mr. Jones did. He's been competent all the way through. And I'm sorry y'all weren't certain on what day the tests were done, but it happened, they're done. So it appeared to me Mr. Jones was well aware he was going to be tested. He had very much time to speak with his lawyers, his team of lawyers to decide whether he was going to take it or not and decide it. And if y'all advised him to not do it and he took it anyway, then that was his doing. But if y'all didn't tell him to take the tests or just said nothing and he took the tests, that's his doing. But I can't go back and fix that.
CASEY SECOR: I understand that. And I'm not trying to argue with the Court, I'm just saying the day that Mr. Jones was brought over for the testing, he did not know testing was going to occur. And the Defense did not know that the testing was going to occur because the Defense was under the impression that Dr. Frierson needed to meet with Tim again, which is what we assumed was occurring that day. I'm not accusing anybody of intentionally duping anybody, I'm just saying we didn't know it was happening that day. Tim didn't know it was happening that day. If we had known it was happening that day, we would have been there. And I think that Mr. Jones' Sixth Amendment rights have been violated.
THE COURT: All right. I understand your thinking. I think his Sixth Amendment rights were protected all the way down the line. So I'm going to -- we're going to leave it alone --
CASEY SECOR: Yes, sir.
THE COURT: But in case I'm wrong, you're protected.
RICK HUBBARD: For the record, we obviously disagree with their scenario of facts. But, also, there would have been some dire consequences if they had elected to not take this test, if the Defendant had not. It would have had an impact on them presenting all the experts they presented in this trial.
THE COURT: Yes, sir. We ready to bring the jury in?
RICK HUBBARD: Yes, sir.
THE COURT: All right. Bring us the jury, please. (Whereupon, the jury came into open court at approximately 9:00 a.m.)
THE COURT: All right. Everybody have a nice weekend?
(Whereupon, affirmative response by the Jury.)
THE COURT: Anybody have any issues? Anything happen? Anybody try to communicate with you in any fashion?
(Whereupon, a negative response by the Jury.)
THE COURT: Are we ready to get going? Solicitor.
RICK HUBBARD: Thank you, Your Honor. The State calls Dr. Kimberly Kruse.
KIMBERLY CRUZ, being first duly sworn, testified as follows:
COURT CLERK: Have a seat up there, please, ma'am. Once you're seated, I need you to speak up loud and clear, state your full name, spelling your last.