Conviction

TWELVE

BASED ON HER EXPERIENCE, TERRI TENDED TO DIVIDE EXPERT witnesses into three categories—professionals, who formed their opinions with care; ideologues, who testified according to their beliefs about the death penalty; and whores, who said anything for money. She saw Davis Kuhl as a curious combination—committed enough to be an ideologue, flexible enough in his advocacy to qualify as a whore. Her challenge was to reveal both tendencies so plainly that Bond could not dismiss them.

Rising to cross-examine, she asked without preface, "Do you have your own practice, Dr. Kuhl?"

Kuhl summoned a look of sincere interest. "If you're asking whether I see patients privately, the answer is no."

"In other words, every person you examine is either a defendant or a prisoner."

"Yes."

Terri rested a hand on the defense table. "Have you ever testified on behalf of a defendant, or a prisoner?"

"No."

"Of the over five hundred prisoners on death row at San Quentin Prison, how many have you met—either during the original trial or through a habeas corpus proceeding?"

Kuhl steepled his fingers. "I'd say between fifty and sixty."

"In what context?"

"Primarily to determine whether they were legally insane, or mentally retarded."

"And, in your opinion, how many of those you examined for insanity were, in fact, insane?"

"None."

"How many instances of mental retardation did you find?"

"None."

Still not moving, Terri smiled. "So finding Rennell Price retarded would have spoiled an otherwise perfect record?"

At the prosecution table, Larry Pell stirred, seeming to search for an objection. Kuhl glanced toward him, then answered. "That's not how I view it, Ms. Paget. In the case of Rennell Price, I could not, as a forensic psychologist, conclude that he was mentally retarded."

"As a 'forensic psychologist,' do you deal with any potentially retarded people outside the legal system?"

"No."

Terri cocked her head. "What is the professionally accepted measure for an average IQ?"

Kuhl began rubbing his fingertips together. "One hundred is the usual measure."

"Are you aware that the average IQ among death row inmates at San Quentin falls in the mid-eighties?"

Kuhl paused. "I've read that. I can't verify it."

"Really? So you have no opinion as to whether the average IQ on death row is different from that of the population as a whole?"

Kuhl placed his steepled fingers to his chin. "It may well be."

"But, presumably, you've never met a single death row inmate you'd consider to be mentally retarded?"

"Not in the cases where I've been asked to evaluate that question."

"How many of those cases have you had?"

"Roughly twenty."

Terri flashed a grin. "I guess the A.G.'s Office gives you the quick learners." Among the onlookers, someone laughed. Before Bond, plainly annoyed, could crack his gavel, Terri asked, "Outside testifying as an expert witness, what work have you done in the area of mental retardation?"

"Professional reading. Quite extensive, in fact."

"Have you personally performed any research or written any articles?"

"No."

Terri rested her hands on her hips. "In short, Dr. Kuhl, your entire professional experience with mental retardation lies in finding roughly twenty death row inmates not retarded."

Kuhl shifted his lean frame. "After performing an examination to establish the proper basis for my opinion."

"To 'establish a proper basis' for your opinion that Rennell Price is not retarded, how much time did you spend with him?"

"About two hours."

" 'Hours,' did you say? Not 'days'?"

"I said hours." A first trace of exasperation entered Kuhl's voice. "In a case like this, one doesn't have days. And if we tested Rennell Price for days on end, you'd complain we were overtaxing him."

Terri ignored this. "Two hours," she repeated. "How many hours did it take you to form your professional opinion?"

Kuhl's restless fingers rubbed together more rapidly. "Approximately nine."

"How did you spend the extra seven hours?"

"Reading, mostly: Eddie Fleet's trial testimony, and Payton Price's deposition. Also, I interpreted Rennell's test scores."

Terri gazed at him with curiosity. "Did you interview anyone who knew Rennell?"

Kuhl rested his hands in his lap. "The prison guard I mentioned."

"The one who reported that he saw Rennell 'reading' a copy of Sports Illustrated?"

"Yes."

"According to the school records you reviewed, what was Rennell's reading level?"

"In the seventh grade, I believe they estimated it to be roughly at the third-grade level—"

"After which," Terri cut in, "didn't his teacher recommend remedial education—specifically to help him read?"

"I believe so."

"Did he ever receive any?"

Though Terri's voice had never changed, Kuhl had begun regarding her with wary eyes, which, even more frequently, darted toward Larry Pell. "There's no record of that."

"Did your testing give you any reason to believe that Rennell Price was able to read and comprehend the contents of Sports Illustrated?"

Kuhl frowned. "Certainly, at that reading level, Rennell could pick out words."

"Did you," Terri inquired mildly, "at least ask the guard if the magazine was right side up?"

"Objection," Pell called out. "The tone and substance of the question are sheer harassment."

Before Bond could issue the reprimand his expression told her was coming, Terri said respectfully, "I'll withdraw the question, Your Honor, and make my point another way." Turning back to Kuhl, she asked, "Do you know where Rennell got the magazine?"

"No."

"According to Rennell, the guard gave it to him. In all of his time on death row, is there any record of Rennell ordering books from the prison library?"

"I don't know."

"For the record, Dr. Kuhl, there is none. So why did you offer this vignette about Sports Illustrated as evidence that Rennell Price is not retarded?"

Kuhl shook his head. "It was ancillary—"

"It was careless," Terri snapped. "So you're not suggesting to the Court that Rennell's close encounter with Sports Illustrated in any way bears on whether this Court should uphold his death sentence."

"Of course not."

"Good." Terri's voice was cool now. "You also mentioned that the evidence of Rennell Price's abuse rests 'almost entirely' on Payton's deposition. Do you remember the passage about Vernon Price forcing Rennell to sit naked on a space heater?"

"Yes."

"Do you have any information regarding the accuracy of this account?"

"No."

"Then you're not aware that the records of the physical exam given Rennell upon his arrival at San Quentin revealed symmetrical burn marks on his buttocks?"

"I am not."

Terri folded her arms. "Did Mr. Pell ask you to form any opinions regarding whether Rennell was abused, or concerning the degree of his reliance on Payton?"

"No."

"So your observation that there was no real evidence of abuse outside of Payton's testimony was just a bonus you decided to throw in?"

Kuhl folded his arms. "What I said, Ms. Paget, is that I don't believe that abuse relates to mental retardation."

"Really? So, in your opinion, even the most severe abuse won't make a retarded person even more prone to fright, or confusion?"

"I wasn't asked to form an opinion on that."

"Were you asked to consider whether abuse might contribute to the potential sleep disorder described in Payton's deposition?"

"No."

"So you have no insight to offer us on Rennell's sleep patterns, or the likelihood he was fast asleep on the day that Thuy Sen died."

"No."

"No," Terri repeated coldly. "This morning, you offered us a critique of Atkins. One of the reasons the Supreme Court gave in Atkins for barring the execution of the mentally retarded was that retarded people have a harder time comprehending the legal system. In this case, the case of Rennell Price, an allegedly retarded man about to be executed, did you try to determine whether he was capable of understanding—and waiving—his lawyer's conflict of interest in also representing Payton?"

"No, Ms. Paget. The Attorney General's Office didn't ask me to address that."

Returning to the defendants' table, Terri glanced at a piece of paper. "Having met Rennell Price, do you—as a professional—honestly believe that he got it when Judge Warner asked, 'Do you understand that, by employing Mr. James to represent you both, you assume the risk that he may not represent your individual interests as effectively as separate counsel?' "

Kuhl shook his head. "I need to know more, Ms. Paget. For example, how well did the lawyer explain to Rennell his choices—"

"He didn't," Terri snapped. "Assuming that fact, how would you evaluate Rennell's ability to comprehend the judge's admonition?"

"That's beyond the scope of my opinion."

"Isn't everything? Yet you also offered Rennell's orderly existence in prison as evidence of his adaptive skills. Precisely what skills does that existence require?"

"Conformity to rules, among other things."

"What rules are there, Dr. Kuhl? 'Stay in your cell' . . . ?"

"All right," Bond interjected. "If you have a question to ask the witness, ask it with respect."

Not so easy, Terri wanted to say. But Kuhl was shaken now, and she did not wish to give him time. "All right," she said. "Can retarded people take showers?"

"Of course."

"Can they eat meals put through the meal slot?"

"Of course."

"Can they go to the bathroom unassisted?"

"Yes."

"Can they go where they're told when they're told?"

"Yes."

"Impressive," Terri said coolly. "Isn't it true that the simplified existence of an inmate in solitary confinement presents far fewer challenges or surprises to the retarded than does the outside world?"

Kuhl regarded her with a closed expression. "It presents fewer variables . . ."

In the quiet of the courtroom, someone laughed again. Bond crisply banged his gavel. "You showed us a videotape," Terri said mildly, "in which Rennell attributed his academic failures to not trying. What role did this self-evaluation play in your opinion that Rennell is not retarded?"

Kuhl frowned again. "My primary reliance was testing, and his adaptive skills. My only point was that Rennell Price provided an alternative explanation for his poor performance—"

"Pretty dumb, wasn't it? I mean, here's the prisoner who may well die unless this Court finds him retarded, and he keeps on insisting that he's not."

"It struck me as a matter of pride, Ms. Paget. Rennell Price did not want to be taken for something which he doesn't believe he is."

Terri gave him a dubious smile. "Isn't it true, Dr. Kuhl, that retarded people often resist acknowledging their limitations?"

"They can."

Terri skipped a beat. "How do you know?"

Kuhl looked puzzled. "I don't understand . . ."

"I mean, have you actually ever met a retarded person?"

Bond—she saw from his swift glance at the witness—perceived where Terri was going. But the witness did not seem to. "I still don't understand."

"Let's break it down. You've never met one on death row, correct?"

Kuhl's shoulders twitched. "That's not what I said . . ."

"What you said, Doctor, is that none of the inmates you've examined for retardation were, in your opinion, retarded. Is that correct?"

"Yes."

"And you never met a retarded person in your practice, because you have no practice—correct?"

Kuhl hesitated. "Correct."

"How long has it been since you became a psychologist?"

"Seventeen years."

"And in all those years, you never met a single retarded person?"

"I've certainly encountered them in life . . ."

"On the street, but not on death row?" Terri summoned a tone of mock bewilderment. "How did you know they were retarded?"

"It was obvious . . . ," Kuhl began, and then his voice trailed off. "What I mean is, their conduct, combined with their appearance, clearly suggested retardation."

"But you didn't actually test them."

"Of course not."

"Well, based on your reading about retarded people, can you always determine by observation whether someone is retarded?"

"Of course not. That's why we have a regime of testing."

"And in your regime of testing, you've never found anyone you tested to be mentally retarded."

"Asked and answered," Pell called out.

"Point made," Bond told her with a look of annoyance. "Move on."

Kuhl looked toward the judge. "If I may say one thing, Your Honor. During my medical education, I encountered a number of persons—often in public mental facilities—who had been found to be retarded."

"But not by you," Terri said. "Correct?"

Turning, the witness summoned an expression which, Terri supposed, was meant to be long-suffering. "Not by me, counselor. But I was able to observe them."

"Did all of their eyes bug out?" Holding up a hand, she said, "Forgive me, Your Honor. I'll move on."

"Please do."

"This morning, Dr. Kuhl, you said there was no evidence that Rennell Price suffered from fetal alcohol syndrome or organic brain damage. Is it possible to have either, or both, while having a 'normal' appearance?"

"That's possible, yes."

"And that a CAT scan won't necessarily reveal either?"

"That's true."

"And that the so-called practice effect could have improved Rennell's scores on the tests you gave him to evaluate his IQ?"

"That's also true." Kuhl's voice held a trace of exasperation. "Which is why I emphasize forensic behavioral analysis, re-creating a defendant's actions in his normal life."

"Let's break that down. You'll concede that Rennell's 'normal life' on death row does not refute the assertion that he's retarded?"

"Not in itself, no . . ."

"Isn't it also true that—based on your nine-hour review—you are aware of nothing which makes his academic failure more likely to be willful than a sign of retardation?"

"Other than his own admission."

" 'Other than his own admission,' " Terri repeated softly. "I guess that leaves us with all those deliberate things he did in the commitment of this crime. Of course, if Payton Price were telling the truth, those things never happened, did they?"

"If Payton were telling the truth," the witness rejoined, "Rennell's innocent, retarded or no. But that's not what the jury found."

"True. In forming your opinion, Dr. Kuhl, did Mr. Pell give you any instructions regarding how to view the testimony of Eddie Fleet?"

"I was instructed to assume its truth."

Though questioning the witness, Terri directed her gaze at Bond. "In other words, your 'forensic behavioral analysis' rests primarily on the testimony of Mr. Fleet."

"In some measure, yes."

"Aren't you at least curious about whether he's telling the truth?"

"Of course. But trying to second-guess the 'truth' of facts established at the trial is beyond the scope of my assignment and—frankly—the proper purview of an expert in psychology."

"I see. Were you also asked to assume by implication that Payton Price was lying?"

"I suppose so."

"Wouldn't you like to see and hear Payton Price tell his story?"

Kuhl gave her a trapped, impatient look. "Payton Price is dead."

Terri glanced at Bond again. "Oh, I know. That leaves Eddie Fleet, doesn't it? Are you aware that since Mr. Pell sought your opinion and told you to rely on Fleet's testimony, Mr. Fleet has invoked the Fifth Amendment?"

"I am."

"How does that affect your reliance on Mr. Fleet in asserting that Rennell Price is not retarded?"

Kuhl glanced at Larry Pell. "My instructions are the same."

"Doesn't that bother you, Dr. Kuhl? Maybe just a little? After all, if the Court accepts your opinion, Rennell Price may well die."

"Objection," Pell said in a disdainful monotone. "Argumentative."

"Argumentative?" Terri echoed. "Forgive me, Dr. Kuhl. Let me ask the question another way. Would you now, knowing that Mr. Fleet has taken the Fifth, prefer to see and hear him before standing on your opinion?"

From Pell's expression, he saw, perhaps too late, where Terri had taken his witness. Defensively, Kuhl answered. "That's not my decision."

"No," Terri answered, looking toward Gardner Bond. "It's Mr. Pell's."