Defending Jacob

22

Mr. Logiudice: Directing your attention to a document that’s been marked Exhibit, um, 22, do you recognize this document?

Witness: Yes, it’s a letter from Dr. Vogel to Jonathan Klein, our defense lawyer.

Mr. Logiudice: And the date?

Witness: It’s dated October 2.

Mr. Logiudice: Two weeks before the trial.

Witness: Yes, give or take.

Mr. Logiudice: The bottom of the letter says, “CC: Mr. and Mrs. Andrew Barber.” Were you shown this letter at the time?

Witness: Yes, I was.

Mr. Logiudice: But your attorney never turned over this document in discovery, is that correct?

Witness: Not as far as I know.

Mr. Logiudice: Not as far as anyone knows.

Witness: Don’t testify, Neal. Come on, ask a question.

Mr. Logiudice: All right. Why was this document never turned over to the prosecution?

Witness: Because it’s privileged. It’s a doctor-patient communication and it’s work product, which means it was created by the defense team as part of its trial preparation. That makes it confidential. It’s exempt from discovery.

Mr. Logiudice: But you’ve produced it now. And in response to an ordinary boilerplate discovery order. Why? Are you waiving the privilege?

Witness: The privilege isn’t mine to waive. But it doesn’t matter now, does it? The only thing that matters now is the truth.

Mr. Logiudice: Here we go. This is the part where you tell us how you believe in the system and all that.

Witness: The system is as good as the people running it, Neal.

Mr. Logiudice: Did you believe in Dr. Vogel?

Witness: Yes. Completely.

Mr. Logiudice: And you have confidence in her now? Nothing has happened to shake your faith in the doctor’s observations?

Witness: I trust her. She’s a good doctor.

Mr. Logiudice: So you don’t dispute anything in this letter?

Witness: No.

Mr. Logiudice: And what was the purpose of this letter?

Witness: It was an opinion letter. It was meant to summarize the doctor’s findings about Jacob so that Jonathan could make a decision about whether to call Dr. Vogel as a witness and whether he wanted to get into this whole subject at all, the subject of Jacob’s mental health.

Mr. Logiudice: Would you read the second paragraph to the grand jury, please.

Witness: “The client presents as an articulate, intelligent, polite fourteen-year-old boy. His manner is shy and he is somewhat reticent in conversation, but nothing in his conduct suggests a compromised ability to perceive, recall, or relate the incidents involved in this case or to assist trial counsel in making informed, intelligent, well-reasoned decisions pertaining to his own legal defense.”

Mr. Logiudice: What the doctor is saying there is that in her professional opinion Jacob was competent to stand trial, isn’t that right?

Witness: That’s a legal opinion, not a clinical one. But yes, obviously the doctor is aware of the standard.

Mr. Logiudice: And what about criminal responsibility? The doctor addresses that question in her letter as well, doesn’t she? Look at paragraph three.

Witness: Yes. Mr. Logiudice: Read it, please.

Witness: Quote: “There is insufficient evidence as yet to conclude definitively whether Jacob adequately perceives the distinction between right and wrong and can adequately govern his behavior to act according to that distinction. There may be sufficient evidence, however, to support a colorable argument relying on genetic and neurological evidence based on a theory of ‘irresistible impulse.’ ” Unquote.

Mr. Logiudice: “There may be sufficient evidence,” “a colorable argument”-that’s a lot of hedging, isn’t it?

Witness: It’s understandable. People were bound to be skeptical about making excuses for murder. If the doctor took the stand and made that argument, she’d better be damn sure.

Mr. Logiudice: But she did say, in fact, at least at this stage, that it was possible? It was a “colorable argument”? Witness: Yes.

Mr. Logiudice: A murder gene? Witness: She never used that term. Mr. Logiudice: Would you read the paragraph labeled “Diagnosis Overview”? Page three, top of the page.

Witness: Neal, do you want me to read the whole thing to them? The document is already in evidence. They can read it for themselves.

Mr. Logiudice: Please. Humor me.

Witness: Quote: “Jacob exhibits behavior and expresses thoughts and inclinations, both in private session and in his history outside direct clinical observation, that would support any or all of the following diagnoses in isolation or in combination: reactive attachment disorder, narcissistic personality disorder”-look, if you’re asking me to comment on a psychiatrist’s clinical diagnosis-

Mr. Logiudice: Please, just one more. Page four, paragraph two, the sentence I’ve indicated with a sticky note.

Witness: Quote: “The best way to summarize this entire constellation of observations-lack of empathy, difficulties with impulse control, occasional cruelty-is to say that Jacob resembles the Grinch of Dr. Seuss: ‘His heart is two sizes too small.’ ” Unquote.

Mr. Logiudice: You look upset. I’m sorry. Does that upset you?

Witness: Jesus, Neal. Jesus.

Mr. Logiudice: Is this how you felt when you first heard that your son had a heart that was two sizes too small?

[The witness did not respond.]

Mr. Logiudice: Is this how it felt?

Witness: Objection. Relevance.

Mr. Logiudice: Noted. Now answer the question, please. Is this how it felt?

Witness: Yes! How do you think I felt, for Christ’s sake! I’m his father.

Mr. Logiudice: Exactly. How is it that you lived with a boy who had the capacity for this sort of violence all these years and you never even noticed it? Never suspected one thing was out of place? Never lifted a finger to address these psychological problems?

Witness: What do you want me to say, Neal?

Mr. Logiudice: That you knew. You knew, Andy. You knew.

Witness: No. Mr. Logiudice: How is that possible, Andy? How could you not know? How is that even possible?

Witness: I don’t know. I only know it’s the truth.

Mr. Logiudice: Again with that. You sure do stick to your talking points, don’t you? You keep saying “the truth, the truth, the truth,” as if saying it makes it so. Witness: You don’t have kids, Neal. I don’t expect you to understand. Mr. Logiudice: Enlighten me. Enlighten all of us. Witness: You can’t see your own kids straight. No one can. You love them too much, you’re too close. If you had a son. If you had a son. Mr. Logiudice: Do you need a minute to gather yourself?

Witness: No. Have you ever heard of confirmation bias? Confirmation bias is the tendency to see things in your environment that confirm your preconceived ideas and not see things that conflict with what you already believe. I think maybe something like that happens with kids. You see what you want to see.

Mr. Logiudice: And what you don’t want to see, you choose not to?

Witness: Not choose. You just don’t see it.

Mr. Logiudice: But in order for that to be true, for it to be confirmation bias, you would have to genuinely believe in the thing. Because you’re talking about an unconscious process. So you would have to genuinely believe in your heart of hearts that Jacob was an ordinary kid, that his heart was not two sizes too small, correct?

Mr. Logiudice: But in this case, that couldn’t be true, could it? Because you had reason to be on the lookout for signs of trouble, didn’t you? Your whole life-your whole life, Andy-you’ve been aware of the possibility, isn’t that true?

Witness: No, it is not.

Mr. Logiudice: No? Did you forget who your father was?

Witness: Yes. For thirty years or so, I forgot. I meant to forget, I purposely forgot, I was entitled to forget.

Mr. Logiudice: You were entitled?

Witness: Yes. It was a personal matter.

Mr. Logiudice: Was it, though? You never really believed that. You forgot who your father was? Forgot what your son might become if he turned out like Grandpa? Come on, you don’t forget a thing like that. You knew. “Confirmation bias”!

Witness: Step back, Neal.

Mr. Logiudice: You knew.

Witness: Step back. Get out of my face. Act like a lawyer, for once.

Mr. Logiudice: Well, now. There’s the Andy Barber we all know. Back in control of yourself. Master of self-control, master of self-delusion. Master actor. Let me ask you something: those thirty years when you forgot who you are, where you came from, you were telling yourself a story, weren’t you? For that matter, you were telling everyone a story. In a word, you were lying.

Witness: I never said anything that was not true.

Mr. Logiudice: No, but you left a few things out, didn’t you? You left a few things out. [The witness did not respond.]

Mr. Logiudice: And yet now you want the grand jury to believe every word you say.

Witness: Yes.

Mr. Logiudice: All right, then. Go on with your story.