8.Social-History Evidence and Flores Testimony Hearing
49 linesCASEY SECOR: I just wanted to add one case to my argument about not being allowed to present Ms. Thornsberry's social history as it is also Tim's social history. And I would just add to that argument, Eddings versus Oklahoma 455 U.S. 104 from 1982. Specifically addressing the relevance of family history and it being kept from the censors consideration. Thank you, sir.
THE COURT: Okay. All right. We're going to stand down for about an hour and 15.
(Whereupon, a lunch break was taken.)
RICK HUBBARD: Your Honor, I, this morning, was handed an affidavit from a Dr. Andriana L. Flores. She's a PHD psychologist from Georgia. The affidavit she has is a total of 12 pages. It, basically, is geared as an attack on Dr. Kruse. I made a copy for you so Your Honor could see it. I've been told that this particular Doctor, who's not on the witness list, is supposed to be here tomorrow to testify. Everything in this affidavit is geared at attacking both the professional credentials and, really, the personal integrity of Dr. Kimberly Kruse. And, frankly, it's outrageous. Dr. Kruse has seen a copy of it. She's concerned about whether she can even come back and right now, Judge, after Dr. Maddox's testimony, I wasn't planning on calling anybody else. But for them to call this lady out of Georgia who has not been involved in this case to attack the character of a witness who testified in the first phase and, basically, has intimidated her. Dr. Kruse sent me something saying, I don't think I can testify. It borders on witness tampering, threatening a witness. I've never seen anything in my career quite like it. I understand differing from another doctor, just like Dr. Maddox differed with Frierson. She was very polite about it. Very professional about it. This is a personal attack and it ends with a threat that she feels, under the APA Ethical Guidelines, she has to directly contact Dr. Kruse, confront her about all of her errors and mistakes and potentially report her for ethical violations. It's outrageous. I've never seen this in 29 years of practice. I don't know how she would even be relevant. She's not on a witness list and right now, Dr. Kruse, I don't have a plan to bring her back, but if I did, this threat is obscene.
THE COURT: All right. Mr. Young.
BOYD YOUNG: Your Honor, Dr. Flores is anticipating testifying regarding errors and incorrect conclusions regarding the testimony of Dr. Kruse. Obviously, to comment on her character would not be appropriate and we don't intend to offer any of that. She hasn't had time to do a report and hasn't done a report. She has an affidavit regarding her review of Dr. Kruse's testing. She believes that there are significant problems, errors and misreports with regard to Dr. Kruse's testing. She put those, her conclusions and her concerns in an affidavit. She will be calling her to testify as to what she found to be erroneous about Dr. Kruse's testing and report and it's completely appropriate.
THE COURT: If Dr. Kruse isn't testifying, how is this relevant to this portion of the case as opposed to how it would have been relevant if she were called in response to Dr. Kruse?
BOYD YOUNG: The State's continued to rely on Dr. Kruse's testing to say that Tim is not schizophrenic, that he doesn't have schizophrenia, that he is a liar. And that's, in our view and in Dr. Flores' view, not reflected in Dr. Kruse's testing.
RICK HUBBARD: The position is -- with us, then, is that I couldn't call a reply witness. Dr. Kruse is now concerned there is a threat on her career and her license to testify. She feels like she'd have to bring a lawyer. I'd have to compel her. It would be ridiculous.
THE COURT: Well, my concern, is several fold is, she wasn't on the witness list. We've been getting ready for a year and a half, close to two years. Since we've put this thing on the trial docket, we have continued it twice. I mean, there's a multitude of experts who've testified for the Defense and several for the State. Two or three from the State and more from the Defense. I mean, where does it end. If this lady comes to testify, then the State finds someone else that's not on the witness list, you know, to respond to this, to respond to that and to respond to this. We've got to draw the line somewhere. My belief is that she's not on the witness list. Therefore, she shouldn't be allowed to testify because we're six weeks into the trial. I mean, we've got to draw the line somewhere. And it seems like, when we started either phase of the case it ought to be drawn. And we've already started the second phase and the witness isn't identified. So it's almost two trials in.
BOYD YOUNG: Obviously, this is information that the Defense didn't have until this weekend and that's when we got it. As soon as we got the information and were made aware of the concerns, we contacted Dr. Flores. I asked her to prepare an affidavit, outlined what her concerns were. She did that and I turned it over this morning. I don't -- if my memory serves me correctly, I believe that the State called somebody that wasn't on the witness list and the Court just said, hey, this person wasn't on the witness list, but you're getting called now, does anybody know him. It wasn't a big deal.
THE COURT: What witness was that?
BOYD YOUNG: I don't recall.
RICK HUBBARD: I think he's talking about a chain witness who took item A and gave it to one person to another. Something like that. Somebody that did not know anything about the case.
THE COURT: I'm not recollecting what she was, but a chain witness.
RICK HUBBARD: There's no substance.
THE COURT: Yeah.
BOYD YOUNG: They called an expert at the roadblock area without any notice to the Defense. They called an AG from Mississippi to opine about Mississippi law without any notice.
THE COURT: That was in pretrial.
BOYD YOUNG: It was.
THE COURT: That was in pretrial. I've got to draw the line somewhere and I don't believe Dr. Flores would be allowed to testify. We're too far in the game to call in new players. I presume you'll have to proffer her, but I don't think she should be allowed to testify.
BOYD YOUNG: Well, I'm proffering her in the morning, Your Honor.
THE COURT: Okay. We'll do it.
BOYD YOUNG: And I'd request some time to make a more extensive record as to why I think we should be allowed to call her.
THE COURT: We'll do that in the morning. I mean --
BOYD YOUNG: Sure. Your Honor, with respect to this afternoon, I know we'll call Tim Jones, Sr. We'll do the proffer with regard to the history prior to Tim Jones' birth so that the record's clear and consistent with the Court's ruling. Our other witnesses are flying in this afternoon. Based on the Court's ruling, we sort of shortened what we had available for this afternoon. But I do think that we've also had a social historian who we anticipate testifying regarding a lot of that information. I think it would helpful if we could spend, probably, most of the afternoon proffering her social history so that tomorrow we can just get through it, what the Court allows.
RICK HUBBARD: Your Honor, her report is already in as a Court's Exhibit. Now, it's a redacted one. I'm purposing putting in a completely unredacted report that we initially got. She's not testifying. All of the contents of that report would be in. If there's something in addition to that report, I don't know what it is. If she goes into the background, several generations back, as they've been discussing. So I don't know -- we haven't objected to it. So I don't know -- objecting to her getting up and testifying. I don't know what, exactly, she would go into. I would object to certain things, but that's already in as a Court's Exhibit. So I'm not sure why we need to spend all afternoon on a witness that they're just deciding not to call.
THE COURT: You're not going to call her and you're wanting to --
BOYD YOUNG: We are going to call her.
THE COURT: Right. Why can't the entire report as a Court's Exhibit stand for the proffered portions?
BOYD YOUNG: Well, I think that there's a lot more to it than just what's in the report from her testing. Now, I'll let Mr. Secor --
CASEY SECOR: Your Honor, I believe that we're required to proffer it for her to -- we're talking about Ms. Grey, Deborah Grey. For Ms. Grey to be able to testify to this information in the social history and to explain it from the perspective of social work and child development to help explain why the events that exist and are outlined in the social history are relevant for the purposes of this case. How a social history is designed to illuminate patterns, events in families and sort of the spirit of the whole thing is that you go several generations back as a way of helping to understand where a person, in the subject of the social history, finds themself in the future. I don't think that the report itself can do that in the way that Ms. Grey can and she has some demonstratives to help produce some of that information. At least, it's been extremely helpful to me and helped me recognize those issues. And I think that in order for Your Honor to make a proper ruling on the admissibility of it for the jury, that the only way would be that -- you know, I'd say close to half of it is probably pre-1981. That's sort of, you know, the essence of the social history is you're going back to past generations to try to understand future events. And the report -- the Solicitor said it was a redacted version. I don't believe it's a redacted version. I don't -- I've never seen a redacted version.
THE COURT: Maybe it's the whole report. I don't know.
RICK HUBBARD: What we noticed -- they gave us a copy of what they made a Court's Exhibit of and there were a number of things removed from the original document. That's what I meant. I don't mind making an exhibit of -- Court's Exhibit of the entirety of what I initially got. It's 137 pages long.
THE COURT: Well, I don't have the Court's Exhibit to compare it to. If you all say it's different, it's different. If it's not, it's not.
CASEY SECOR: No. I'm just saying that the one that was put in her report. There were some changes made to it before and a copy was given to the State because we were speaking to witnesses and as a consequence of communication with witnesses some things were removed, but we told the State about that. The report that's in that was made a Court's Exhibit is her report.
THE COURT: Okay. Well, that's the report.
RICK HUBBARD: Okay. And I certainly don't mind putting what was excised out as a State's ID or something like that just so there's -- if anybody has a question about what's in or out.
THE COURT: We're proffering proffers. I mean --
RICK HUBBARD: Right.
THE COURT: -- it's like pleas up in Newberry. They try it in-chambers, and then come back out and do the whole thing a second time. You've heard it twice. You all are proffering your proffer. Let's get going doing something other than proffering proffers because you all are saying what you're going to tell me later and what she's going to say. And then, she's going to tell you this. I mean, if you can tell me, tell me. If she's got to tell me, let her tell me. That way you don't have to do it three times.
CASEY SECOR: Yes, sir. And we're not trying to frustrate Your Honor.
THE COURT: I know. You're not, but you are. And I've got a smile on my face.
CASEY SECOR: I'm not accusing you of anything. I just want you to know, we're not trying to --
THE COURT: I know.
CASEY SECOR: We're not trying to bog the trial down.
THE COURT: Yeah, that was a joke. Y'all are doing your jobs and I respect that.
CASEY SECOR: I'm sure this is just going to add -- but we need to proffer some testimony from Senior before the jury comes in.
THE COURT: Well, let's get Senior up here if he's going to be the next witness.