1.Adriana Flores Proffer and Sealing Rulings
61 linesJune 11, 2019
THE COURT: All right. We've got two things to take up. One thing was the proffer of the social historian and then where does she pick up in telling the social history, that's one. Another thing is the psychologist from Atlanta.
RICK HUBBARD: Your Honor, if I can jump in just quickly --
THE COURT: Which order y'all want to do them in?
RICK HUBBARD: I'd like to do the psychologist, just to go ahead and address that. And then with Ms. Grey, we can go ahead -- it might even flow right into her testimony once we do that.
THE COURT: Okay.
RICK HUBBARD: But I object strenuously to Dr. Flores coming into this courtroom testifying and building a record, basically, geared at destroying professional credibility and personal integrity of Dr. Kimberly Kruse. She comes out of nowhere, Ms. Flores, out of Georgia. Nothing to do with this case, brought in by the Defense in response to a first phase testimony by Dr. Kruse, but also geared to keep her off the stand in this phase should that have been necessary. Your Honor, this is so outlandish. There is a threat of filing an ethical grievance with Dr. Kruse. Dr. Kruse would then forward, therefore, have to always, reveal she's had an ethical allegation against her. It will be a permanent stain on her personal and professional integrity.
THE COURT: I mean, what's going to prevent that?
RICK HUBBARD: Well, here's the thing -- and if this woman chooses to do that, she can, but she can't come into this courtroom and do that. Dr. Kruse has a right to have legal counsel to cross-examine this. This is not the time or place for that. We were told yesterday Dr. Flores was going to come testify. We never heard of her. Apparently, she's tied in with Dr. Dorney and others out of Emory. They do work together. She has not touched a single bit of this case, yet, she's going to come in and pick apart Dr. Kruse without the benefit of all the notes and things that Dr. Kruse used to justify her opinion. She's going to professionally and personally destroy her. And they're going to build this record for appellate purposes and, also, to use against Dr. Kruse to ensure Dr. Kruse never steps into a criminal courtroom again. That's obscene. It's an obscene use of the court process. And, Judge, frankly, it borders on intimidation of a witness. Because that's what it's geared to do. Right now, Dr. Kruse is not going to come into this courtroom even if I needed her to. And if she came, she would need to have personal counsel, private lawyer to protect her. I think if this woman testifies, Dr. Kruse is entitled to a private attorney and that's why it shouldn't happen. Dr. Kruse should not have to go out and retain an attorney to handle an accusation like this. If Dr. Flores truly feels something bad happened, she can file her grievance, but she doesn't need to be doing it in this courtroom.
THE COURT: Mr. Young.
BOYD YOUNG: Your Honor, Dr. Flores is coming to testify about the testing and the conclusions derived at by Dr. Kruse. She does acknowledge in her affidavit that she feels that she needs to talk to Dr. Kruse about her testing, her testing manners and her interpretations. And just like any lawyer who says well, if I see another lawyer committing an ethical violation I'm duty bound to report that. I mean, that's all she says.
THE COURT: I know, but do you have to always say that. You know the rules.
BOYD YOUNG: No, she doesn't have to always say it. We have no intent --
THE COURT: So why did she put it in there?
BOYD YOUNG: She was saying what her ethical obligations were.
THE COURT: I know, but everybody's got ethical obligations, why is that relevant to this affidavit?
BOYD YOUNG: It's not.
THE COURT: Well, then, why is it in there?
BOYD YOUNG: I don't know. She put it in there. I didn't ask her for any of it. She contacted us after reviewing the test and said this test is flawed. These testing results are incorrect. The mannerism in which these tests were conducted --
THE COURT: She contacted you, you didn't contact her?
BOYD YOUNG: Right.
THE COURT: Out of the blue?
BOYD YOUNG: No, she had -- Dr. Dorney had her contact me.
THE COURT: I mean, so you didn't reach out to her?
BOYD YOUNG: Right. And in her 20 years of forensic practice, she's never felt the need to contact a lawyer saying what happened in your case, the testing that was done in your case is flawed, so flawed that it shouldn't have been admitted. And that's what she's going to testify about, is the testing. She has the raw data. She's reviewed the raw data. She's rescored the raw data and that's what she's going to testify about, is Dr. Kruse's testing and her conclusions based on that testing. And while I know Dr. Flores wasn't on our witness list, Dr. Kruse wasn't on the State's witness list either.
RICK HUBBARD: That's not true. She was.
BOYD YOUNG: Court's 63. Your Honor can check it right there. We had it pulled this morning.
THE COURT: Dr. Kruse has been known since Dr. Frierson was asked to have neuropsychological testing done. Didn't she -- I mean, didn't he?
BOYD YOUNG: Yes.
THE COURT: And he said I can't do it, that's not what I do. I have someone to do it and it will be Dr. Kruse.
BOYD YOUNG: Correct.
THE COURT: I mean, I've known that name.
BOYD YOUNG: Right. But it wasn't on -- I mean, yesterday, the State objected to us calling Dr. Flores and the Court agreed because she's not on the witness list. Dr. Kruse isn't on the witness list that was given to the jury either.
THE COURT: Well, the Court's aware that Dr. Frierson -- we had a preliminary, a pretrial hearing of just about a whole day with Dr. Frierson, I need these tests, I'm going to do a full evaluation. I'm going to have Dr. Kruse do it. It went on and on and on. Dr. Kruse was identified months ago by Dr. Frierson. I need her help. This lady, Dr. Flores, I was under the impression yesterday when I was handed this that Dr. Flores was contacted by the Defense. And you're telling me that's not the case.
BOYD YOUNG: She contacted the Defense.
THE COURT: Hang on. We need to go off the record. I want to see -- hang on one second. I'm going to come back to y'all. I've got to step off for a second.
(WHEREUPON, a short recess was taken.)
THE COURT: All right. I've already ruled that Dr. Flores' testimony will be proffered, but not introduced in front of this jury. I was -- I guess I'm a little bit unaware -- I was unaware this morning -- until this morning that she contacted the Defense team and then the Defense team sought funding to pay her yesterday. So that was confusing to me. In any event, let's proffer her testimony and get done with that.
RICK HUBBARD: May I move to have it sealed so that when this goes before the high court that it's not released to the public to protect the integrity of Dr. Kruse, who is not here, nor is her Counsel here?
THE COURT: Any objection to that?
BOYD YOUNG: Yes, sir.
THE COURT: I'm going to grant that motion because it's kind of out of the blue. I mean, what's the harm if the Appellate Court can see it, but the general public can't?
BOYD YOUNG: I don't understand why it would be sealed. Dr. Kruse can stand on her testing or not. If she didn't do anything wrong, there's nothing to worry about.
THE COURT: I know, but here's the thing. If I make an accusation to a lawyer and I say I think y'all committed unethical conduct and I'm just -- I misunderstood something, but I made that comment. And it floats around out there that the Judge accused one of the lawyers in the trial of unethical conduct, then that lawyer has got to live with that red mark on his head. I wonder if it was true or not? I mean, it's like, you know, I heard so and so -- I mean, that's -- you're unable to explain away something in the negative.
BOYD YOUNG: I understand. It doesn't matter to me.
THE COURT: Okay. I'm going to seal it out of an abundance of caution.
BOYD YOUNG: And I would ask the Court to hear the testimony from Dr. Flores before ruling on whether or not the jury gets to hear it.
THE COURT: Call her up.
RICK HUBBARD: Your Honor, so it is clear, Dr. Kruse was on the witness list. So I wanted to make sure -- and I will pass that up for a Court's Exhibit just so we can mark that.
BOYD YOUNG: Did you date that one?
RICK HUBBARD: That is what I gave --
THE COURT: The witness list that I read to the jury that Whitney just handed me has Dr. Kruse on it.
RICK HUBBARD: Yes, sir, thank you.
COURT REPORTER: The one that I have that's Court 63 does not have her name on it.
RICK HUBBARD: No, that's the Defense one. That one is the one we gave the Court and that one does.
THE COURT: The one that I worked off with all the jurors has Dr. Kruse on it. This is mine.
RICK HUBBARD: Yes, Your Honor.
THE COURT: And if you will mark that as an exhibit.
COURT REPORTER: That's what I was saying. I'll mark this one. We'll have two of them in.
RICK HUBBARD: We'll use the Judge's, how about that?
COURT REPORTER: Okay, and I'll give you that one back. So this will be Court's 125. (WHEREUPON, Court's Exhibit No. 125 was marked for identification.)