Joint Appendix — James Erin McKinney, Petitioner v. Arizona

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No. 18-1109

IN THE

Supreme Court of the United States

_________

JAMES ERIN MCKINNEY,

Petitioner,

STATE OF ARIZONA,

Respondent.

_________

On Writ of Certiorari to the

Arizona Supreme Court

_________

JOINT APPENDIX

_________

NEAL KUMAR KATYAL

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

neal.katyal@hoganlovells.com

Counsel of Record

for Petitioner

ORAMEL H. (O.H.) SKINNER

Solicitor General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Avenue

Phoenix, AZ 85004

(602) 542-5025

o.h.skinner@azag.gov

Counsel of Record

for Respondent

PETITION FOR WRIT OF CERTIORARI FILED: FEBRUARY 21, 2019

CERTIORARI GRANTED: JUNE 10, 2019

TABLE OF CONTENTS

Page

Relevant Docket Entries:

Arizona Supreme Court Docket Entries

(No. CR-93-0362-AP).............................................. 1

Relevant Pleadings:

Sentencing Hearing Transcript

(July 16, 1993) ...................................................... 12

Sentencing Hearing Transcript

(July 19, 1993) .................................................... 133

Sentencing Hearing Transcript

(July 20, 1993) .................................................... 261

Sentencing Order (July 23, 1993) ........................ 292

Defendant’s Mitigation Memorandum

(July 15, 1993) .................................................... 299

Defendant’s Sentencing Hearing Exhibits:

Exhibit 3: Dorothy Otnow Lewis, M.D. et

al., Toward a Theory of the Genesis of Violence: A Follow-up Study of Delinquents,

28 J. Am. Academy of Child & Adolescent

Psychiatry 431 (1989)...................................... 343

Exhibit 4: Deana Dorman Logan, From

Abused Child to Killer: Positing Links in

the Chain, The Champion, Jan./Feb.

1992, at 36-39 .................................................. 367

State of Arizona’s Motion to Conduct New

Independent Review of Death Sentence

(Oct. 7, 2016) ...................................................... 385

(i)

ARIZONA SUPREME COURT

_______________

Criminal Death Penalty Appeal

Docket No. CR-93-0362-AP

_______________

STATE OF ARIZONA,

Appellee,

JAMES ERIN MCKINNEY,

Appellant.

_______________

APPELLATE CASE INFORMATION:

Case Filed: August 3, 1993

Case Closed: July 2, 1996

Reinstated x1: October 7, 2016

Re-Closed: October 23, 2018

_______________

DOCKET ENTRIES

DATE

09/09/1993

DOCKET

NUMBER PROCEEDINGS

Record on Appeal MCSC: Instruments (2

Parts); MEs; Presentence

Report; 3 Orig RTs

(3/19/93; 3/30/93; 4/2/93);

Exhibits (List; 4 Man

Envs - Env No 1 [Pltf Exh

(1)

DATE

DOCKET

NUMBER PROCEEDINGS

No B]; Env No 2 [Def Exh

Nos 1-5]; Env No 3 [Pltf

Exh Nos 1-2] [Def Exh

Nos 3-8]; Env No 4 [Pltf

Exh Nos 7, 16, 22-24, 2728, 29-115, 120, 73B] [sb]

***

08/03/1993

Notice of Appeal [Appellant McKinney] [Judgment filed in MCSC] [sb]

***

12/06/1994

APPELLANT’S

OPENING BRIEF [McKinney]

[sb]

02/06/1995

APPELLEE’S ANSWERING BRIEF [State] [ct]

***

04/10/1995

APPELLANT’S

BRIEF [McKinney] AT

ISSUE [sb]

***

05/16/1996

OPINION - Convictions

and Sentences Affirmed

in all Respects [Feldman];

Dissenting in Part [Martone] Opinion Distribution List [T 5-Jun-1996]

DATE

DOCKET

NUMBER PROCEEDINGS

[rs]

05/28/1996

Motion for Reconsideration [Appellant McKinney] [ct]

07/02/1996

ORDERED: Motion

Reconsideration

DENIED.

for

FURTHER

ORDERED:

The mandate is stayed

pursuant

Rule 31.23(b)(1), Arizona

Rules

Criminal

Procedure. Justice Jones

and Justice Corcoran

(retired)

did

not

participate

the

determination

this

matter. [ct]

02/02/1999

MANDATE

(Affirming

the Judgment of Convictions and Sentences, including the Sentences of

death) Issued Mandate

and copy of Opinion, together with record, to trial court [rs]

02/02/1999

Upon the Court’s own motion, ORDERED: that

Jamie McAlister is ap-

DATE

DOCKET

NUMBER PROCEEDINGS

pointed

represent

James Erin McKinney in

post-conviction proceedings pursuant to A.R.S.

Sec. 13-4041 and Rule

6.8(d), Ariz. R. Crim. P.

FURTHER

ORDERED:

that Jess Lorona is Appointed as associate counsel pursuant to Rule

6.8(d). The superior court

and the state shall send

copies of orders and

pleadings in the postconviction proceedings to

associate counsel as well

as lead counsel. FURTHER ORDERED that

lead counsel and associate

counsel each a shall be

compensated at the rate

of $100.00 per hour plus

reasonable costs incurred

in the representation. If

the attorneys’ work hours,

combined, are over two

hundred hours, the superior court shall review

and approve additional

reasonable fees and costs

pursuant to A.R.S. Sec.

13-4041(H). Counsel shall

DATE

DOCKET

NUMBER PROCEEDINGS

direct request for the appointment of investigators

and experts to the superior court pursuant to

A.R.S. Sec. 13-4013(B)

and

Sec.

13-4041(J).

[Jones] [rs]

02/02/1999

Notice for Post-Conviction

Relief sent to Michael K.

Jeanes, Clerk, MCSC [rs]

***

04/23/2003

WARRANT OF EXECUTION - Execution set for

Wednesday,

June 11,

2003 [kab]

04/28/2003

TELEPHONIC NOTIFICATION by USDC: Stay

of Execution pending HC

[CV-03-0774-PHX-SMM]

Faxed copy of Stay of Execution received 4/28/03

[McNamee, USDC] [Certified copy of Order for Stay

of Execution received

4/30/03] [kab]

***

01/26/2005

CERTIFICATION of record to USDC

DATE

10/07/2016

DOCKET

NUMBER PROCEEDINGS

FILED: Motion to Conduct New Independent

Review of Death Sentence; Certificate of Service (Appellee State)

CASE REINSTATED

10/11/2016

FILED: (Copy of) USDC

Order Granting Writ of

Habeas Corpus (Hon. David G Campbell)

***

01/27/2017

FILED:

Response

State’s Motion for New

Independent Review (Oral

Argument

Requested)

(Capital Case); Certificate

Service

(Appellant

McKinney)

***

02/13/2017

FILED: Reply to Response

to State’s Motion for New

Independent Review; Certificate of Service (Appellee State)

***

04/19/2017

Upon considering the Motion to Conduct New In-

DATE

DOCKET

NUMBER PROCEEDINGS

dependent

Review

Death

Sentence,

Response, and Reply,

IT IS ORDERED that the

Motion is granted. The

Request for Oral Argument on the Motion is denied.

IT IS FURTHER ORDERED that the parties

shall brief the following

issue regarding the death

sentences: Whether the

proffered mitigation is

sufficiently substantial to

warrant leniency in light

of the existing aggravation.

IT IS FURTHER ORDERED

that

James

McKinney’s opening brief

shall be filed no later than

July 18, 2017. The State’s

answering brief shall be

filed no later than sixty

days after service of the

opening brief. The reply

brief shall be filed no later

than thirty days after

service of the answering

DATE

DOCKET

NUMBER PROCEEDINGS

brief.

IT IS FURTHER ORDERED that the form and

content of the briefs shall

comply with Rule 31.13(b)

and (c), Ariz. R. Crim. P.

The length of the principle briefs shall not exceed

14,000 words and the

length of the reply brief

shall not exceed 7,000

words.

Justice Lopez did not participate in the determination of this matter. (Hon.

Scott Bales)

***

08/20/2107

FILED: Appellant’s Opening “Independent Review”

Brief; Certificate of Service 8-20-17; Certificate of

Compliance

(Appellant

McKinney)

***

11/17/2017

FILED: Appellee’s Answering Brief; Certificate

of Service; Certificate of

Compliance

(Appellee

DATE

DOCKET

NUMBER PROCEEDINGS

State)

***

01/09/2018

FILED: Appellant’s Reply

Brief; Certificate of Service; Certificate of Compliance

(Appellant

McKinney) AT ISSUE

***

09/06/2018

108

ORAL ARGUMENT Submitted for decision en

banc (Attorneys who argued: Jeffrey L. Sparks;

Sharmila Roy)

09/27/2018

109

OPINION - For the reasons discussed above, we

affirm McKinney’s death

sentences. (Hon. Andrew

W. Gould - Author; Hon.

Scott Bales - Concur; Hon.

Robert M. Brutinel - Concur; Hon. John Pelander Concur; Hon. Ann A.

Scott Timmer - Concur;

Hon. Clint Bolick - Concur; Hon. Garye L.

Vasquez - Concur)

10/12/2018

110

FILED: Motion for Reconsideration; Certificate of

DATE

DOCKET

NUMBER PROCEEDINGS

Service; Certificate of

Compliance

(Appellant

McKinney)

10/23/2018

111

The Court having reviewed Appellee’s Motion

for Reconsideration filed

October 12, 2018,

IT IS ORDERED denying

the motion. (Hon. Andrew

W. Gould)

CASE STATISTICALLY

TERMINATED

**Mandate Automatically

Stayed Ninety (90) days

pursuant

Rule 31.22(c)**

12/14/2018

112

FILED: Motion to Stay

Mandate; Certificate of

Service

(Appellant

McKinney)

12/17/2018

113

On December 14, 2018,

Appellant McKinney filed

a “Motion to Stay Mandate.” After consideration,

IT IS ORDERED granting

the motion. The Issuance

of the mandate shall be

stayed until February 21,

DATE

DOCKET

NUMBER PROCEEDINGS

2019. (Hon. Andrew W.

Gould)

02/26/2019

114

FILED:

Notice

from

USSC - Petition for Writ

of Certiorari filed on

2/26/2019 (No. 18-1109)

(Harris, Clerk) (Rec’d

from USSC on 3/1/2019)

06/10/2019

115

FILED:

Notice

from

USSC - Petition for Writ

of Certiorari is Granted.

(No. 18-1109) (Harris,

Clerk) (Rec’d from USSC

on 06/13/2019)

IN THE SUPERIOR COURT

OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

_________

SC No. CR 93-0362-AP

_________

No. CR 91-90926 (B)

_________

STATE OF ARIZONA,

Plaintiff,

vs.

JAMES ERIN MCKINNEY,

Defendant.

_________

REPORTER’S TRANSCRIPT OF PROCEEDINGS

(Presentence Hearing)

BEFORE:

THE HONORABLE STEVEN D.

SHELDON, Judge

APPEARANCES: Mr. Louis F. Stalzer

Deputy County Attorney

Representing the State

Mr. Scott F. Allen

Deputy Public Defender

Representing the Defendant

Mr. Alex D. Gonzalez

Deputy Public Defender

Representing the Defendant

Mesa, Arizona

July 16, 1993

1:30 o’clock p.m.

SUSAN D. WENTLEJEWSKI, RPR

Certified Court Reporter

INDEX

WITNESSES:

RDX

MARK FRANZEN,

DIANA MCKINNEY,

SUSAN SESATE,

(Further DX)

106

MICKEY MCMAHON, PhD,

112

RCX

111

INDEX TO EXHIBITS

EXHIBIT NO.

DESCRIPTION

IN EVID.

certified document

published article

129

published article

131

Mesa, Arizona

July 16, 1993

1:30 o’clock p.m.

PROCEEDINGS

[Transcript in full, pp. 3-150]

THE COURT: We’re on the record in State of Arizona versus James Erin McKinney, CR 91-90926 B,

time set for sentencing in this matter pursuant to 13703.

Counsel, are you ready to proceed?

MR. STALZER:

State’s ready.

Good afternoon, your Honor.

MR. ALLEN: Scott Allen appearing on behalf of

James McKinney.

MR. GONZALEZ: Alex Gonzalez as well, your Honor. We’re ready.

THE COURT: Counsel, I’ve reviewed your sentencing memorandums with the exception of Mr.

Stalzer’s, which was received today. I have not had

an opportunity to read that yet. I’ve read the defendant’s mitigation memorandum, as well as the defendant’s memorandum regarding the State’s allegation of aggravating circumstances. What I would

propose that we do at this point -- I’ve also not reviewed the presentence reports, as you may recall.

The minute entry indicated that I would waive review until after counsel had had an opportunity to

review them. It is my intention, following the conclusion of the receipt of evidence in this hearing, to

review Mr. McKinney’s presentence report. So it is

important if you have any objection or we need to

have any hearing with respect to any matter in the

presentence report to let me know.

MR. GONZALEZ: Judge, the only thing -- we can

resolve that right now, if you like. The objections

that we made to the presentence report, there’s been

a record made of them. Primarily, if I recall correctly, what we’re concerned about is the victim impact

information contained in that presentence report

given what we’re doing here today, and what is the

potential sentence that our client can receive. Obviously, that record has been made. We still stand by

it, despite the Court’s recent ruling in that regard in

testimony, of us having to provide information,

statements made by our client to the State, and

which was conveyed to their expert. Our record has

been made. We maintain our position as before with

respect to the presentence report.

THE COURT: Mr. Stalzer, in view of the State’s

filing of the request in this matter pursuant to A.R.S.

13-703, you’re aware you have the aggravating circumstances. I would propose that the State proceed

with the evidence regarding the aggravating circumstances. I will then give the defense the opportunity

to rebut both those aggravating circumstances evidence with respect to it and give Mr. Gonzalez and

Mr. Allen the opportunity at that time to present any

mitigating evidence, then to allow, finally, the opportunity to rebut any of the mitigating evidence that is

presented by the defense. Is that agreeable to both

counsel?

MR. ALLEN: That’s fine, your Honor.

THE COURT: Mr. Gonzalez?

MR. GONZALEZ: I think I missed the last part of

what you said. I was just explaining something to

Dr. McMahon. At least in my view, we’d have an opportunity to have the last words, so to speak, with

respect to our burden of proof on mitigation?

THE COURT: Yes.

MR. GONZALEZ: Okay. There is one other preliminary matter which I think will take a couple of

minutes. Our client, as you can see, is seated in the

area where the jury sits. We would like him sitting

with us at counsels’ table. He is obviously an integral part of this part of the case. We will need to

confer with him during testimony. I think it’s important that we have access to him and not have to

run across the courtroom to talk to him and potentially miss things that could be presented.

THE COURT: Counsel, would you approach?

(An off-the-record discussion was held at the Bench

between Court and counsel, out of the hearing of the

court reporter and jury.)

THE COURT: Ladies and gentlemen, those of you

who are seated in the first row behind defense counsels’ table, I’d like to ask all of you to move if you

would into the second row or somewhere else in the

courtroom.

Mr. Stalzer, are you ready to proceed?

MR. STALZER: State’s ready, your Honor.

THE COURT: You may proceed.

MR. STALZER: I’m calling Detective Franzen.

MARK FRANZEN,

called as a witness herein, after having been duly

sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. STALZER:

Please State your name, sir.

Mark Franzen.

Q. Sir, you’re a detective with the Chandler Police Department?

That is correct.

Q. What particular assignment do you have at

the present time?

A. I’m assigned to the criminal investigation of

second-person crimes.

Q. Does that assignment involve investigating

homicides?

Yes, it does.

Does it involve other assaultive-type crimes?

Yes, it does.

Q. Detective, let me show you what has been initially marked as State’s Exhibit 1 for identification

purposes. I indicated to you non-verbally, off of the

record, a particular page of the document that I

handed to you. Do you see the photograph contained

on that page?

Yes, I do.

Q. Do you recognize the person in the Photograph?

Yes, I do.

Who is the individual?

James McKinney.

Is James McKinney in the courtroom today?

Yes, he is.

Q. Is that the person that was on trial last November in this courtroom?

That’s correct.

MR. STALZER: Your Honor, I’d move to introduce

Exhibit 1 into evidence being a certified document

pursuant to Rule 803 as well as 901, 902. A copy of

this document has been provided to defense counsel a

number of months in the past.

MR. GONZALEZ: Judge, we object to the admissibility of the document. It is simply a letter attesting

to verification. The problem here is that there are a

number of documents which are not documents produced by the DOC. They are documents or copies of

documents sent to the DOC. In order for any of these

documents to be admissible, there has to be basically

a double seal on these documents, which we don’t

have. They simply don’t comply with the Rule, and

they’re not admissible.

THE COURT: Mr. Stalzer?

MR. STALZER: I don’t think that’s a law, your

Honor, that there need to be duplicate verification as

to the authenticity of the document, even though

they may not have been originally prepared by the

DOC or Department of Corrections.

THE COURT: May I see the exhibit once defense

counsel finished reviewing?

You can proceed. I’ll take it under advisement.

Q. BY MR. STALZER: Detective Franzen, how

long have you been involved in the investigation of

people-type crimes with either the Chandler Police

Department or any other type of law enforcement

agency?

For 13 years.

Q. In the course of those 14 (sic) years, have you

ever had training in the investigation of homicide

crimes or other assaultive-type crimes?

Yes, I have.

Q. During your experience and any training programs that you may have had over the years, have

you ever had any type of particularized training with

respect to defensive wounds?

Some training, yes.

Q. Can you describe the best you can recall the

type of formalized training you’ve had regarding

these type of defensive wounds.

A. At a seminar conducted by Hocking College,

there was a segment on defensive wounds where

photographs were shown of defensive, wound-type

injuries.

Q. Can you briefly explain what is meant by “defensive wounds.”

A. Generally, a wound to a person that could be

of any type or variety, normally on the hands, arms -and the arms.

Q. Were you present during the crime scene investigation at the Mertens residence?

Yes, I was.

Q. And did that occur sometime on -- well, precisely on the 10th of March, 1991?

Yes.

Q. Who was the primary person involved in the

scene investigation itself?

Detective Dave Neuman.

Q. Were you present when Detective Neuman

was performing his scene investigation?

During portions of it, yes.

Q. Did you at any time observe Ms. Mertens -well, before she was removed from her residence?

Yes, I did.

Q. Were you able to observe various portions of

her body?

Various portions yes.

Q. What portions would you readily observe that

were not hindered by clothing or any other type of

debris or material?

Her legs, her body, and her arms and hands.

Q. Were you -- strike that. Were you present at

the autopsy of Ms. Mertens?

Yes, I was.

Q. And did you observe her body during the

course of the autopsy?

Yes, I did.

Do you recall who performed the autopsy?

A. I believe it was Dr. Shaw -- excuse me. I don’t

recall.

Does the name Dr. Walker sound familiar?

Yes, it does.

Q. Have you had any, what I’d call, street experience in learning about defensive wounds?

Yes, I have.

Can you explain that to Judge Sheldon.

A. During the course of my police experience,

been on obviously numerous calls, calls against persons, assaults, where there were wounds and injuries

to these people, and I have seen wounds on the

hands and the arms of people where they have been

trying to deflect or ward off any object -- a knife,

hands, anything. Generally, these wounds can be

found on the arms and the hands of people.

MR. GONZALEZ: Object to the last opinion, your

Honor, as not based on his expertise and beyond the

scope of any expert testimony that may be required.

THE COURT: The objection’s overruled. The answer will stand with respect to the witness’s observations relating to his own personal experience.

Q. BY MR. STALZER: Detective Franzen, when

you observed Ms. Mertens, either at the medical examiner’s office or in her residence before she was

removed, did you observe what you would characterize as defense wounds on her?

Yes, I did.

Q. Where do you recall seeing any wounds of that

nature?

A. She had a cut on one of the her fingers, and

another finger was broken.

Q. What leads you to conclude that those injuries

were defensive wounds as opposed to some other type

of injury inflicted upon her -MR. GONZALEZ: Objection. Foundation.

THE COURT: The objection’s overruled. Sufficient

foundation has been laid.

Q. BY MR. STALZER: Let me restate my question. What led you to conclude that they could have

been defensive wounds as opposed to, say, someone

just falling down and scraping a knee on the sidewalk or scraping a hand on the sidewalk?

A. It was consistent with evidence that was found

at the scene.

Q. And what evidence did you consider while at

the crime scene to form that conclusion of the defensive wounds?

A. There were knives laying on the carpeting and

broken knives.

MR. STALZER: I don’t have any further questions

of this witness, your Honor.

THE COURT: Counsel, any questions?

MR. GONZALEZ: Couple, your Honor.

(Next page, please.)

CROSS-EXAMINATION

BY MR. GONZALEZ:

Q. Basically, you’re testifying to wounds you saw

on the victim?

That’s correct.

Q. And you are surmising that those, for whatever reason, were defensive wounds?

Consistent with defensive wounds, yes.

Q. Let me ask you a question. If you and I were

in a struggle, in a fight, and you had a knife and I

had a knife, and you lunged at me but missed, and I

lunged at you and you put your arm up and I cut

your arm, is that a defensive wound?

To myself?

Is that a defensive wound, yes.

Yes.

Q. All right. So even though you may have been

the aggressor, it was the -- in your opinion, a defensive wound?

That’s correct.

Q. There was obviously a struggle, at least from

the evidence at trial. Correct?

That’s correct.

Q. Things were thrown all over the place. Right?

Or out of place?

That’s correct.

You don’t know how that struggle ensued?

No, I don’t.

Q. You don’t no whether it was one or two people

or three people in the fight?

Evidence of fighting, I don’t know.

Q. You don’t know if anybody was wielding a

knife or if only one or more than one person was

wielding a knife?

A knife was wielded.

You know that much. Right?

That’s correct.

You surmised that by the cut or cuts?

Right.

Q. But you don’t know how many people actually

had a knife?

No, I do not.

MR. GONZALEZ: I have no other questions of this

witness.

THE COURT: Mr. Stalzer?

MR. STALZER: I have nothing further, your Honor. Thank you.

THE COURT: Detective, thank you. You may step

down.

MR. STALZER: Your Honor, at this time, I would

move to introduce what has been marked as State’s

Exhibit 2 for identification purposes, a copy of which

has been given to Mr. Allen well over a month ago,

and we have discussed it. And as soon as counselor’s

finished reviewing it, I’ll submit it to the Court.

Again, I submit it under rule 803, 901, and 902 here

from the Clerk’s office here in Maricopa County.

MR. GONZALEZ: Judge, we object, and the primary basis for the objection is that that isn’t a certified

document of any documents kept during the regular

course of business. This is simply something saying

that there is a lack of documents. Somehow, I don’t

think that there would be a lack of documents. Certainly they have, if this information is correct, records of payments or nonpayments that could have

been presented which would be properly certified.

This is simply a statement without any supportive

documentation. We object.

THE COURT: Mr. Stalzer, may I see Exhibit 2?

MR. STALZER: Yes, your Honor. And your Honor,

I use that in conjunction with State’s Exhibit 1 solely

for those areas in the document that are tabbed by

the two markings. Again, those do reflect court documents appended to the certified Department of Corrections overall form that has been presented with

the blue-back.

THE COURT:

The objection raised by defense

counsel is overruled, and Exhibit 2 is admitted.

MR. STALZER: Your Honor, just pending the

Court’s decision on Exhibit 1, State rests its case. It

relies on the evidence that has been provided at trial

to support the aggravating factors which the State

will be arguing at the conclusion of the testimony,

and evidence that has been presented by the defense

and prosecution.

MR. GONZALEZ:

McKinney.

Your Honor, we’d call Diana

THE COURT: Ms. McKinney, would you come forward and be sworn in, please. If you’d step forward

and be sworn, please, Ms. McKinney.

DIANA MCKINNEY,

called as a witness herein, after having been duly

sworn, was examined and testified as follows:

THE COURT: Ms. McKinney, you can adjust that

microphone. In fact, the whole thing can come forward, if you can sit back in that chair. And there’s

water if you’d like to have a drink.

Mr. Gonzalez?

MR. GONZALEZ: Thank you, your Honor.

DIRECT EXAMINATION

BY MR. GONZALEZ:

State your name, please.

Diana McKinney.

Diana, how old are you?

Twenty-three.

What’s your father’s name?

James Erin McKinney.

And your natural mother’s name?

Bobbie Morris.

Q. You have a number of brothers and sisters;

some full brothers; some half; et cetera. Could you

please tell us who they are and how old they are,

starting with the oldest.

A. I have a step-sister, Sandy. She’s about 30

years old. And there’s Charles Michael Hedlund.

He’s around 28.

Who is Charles’ father?

I’ve never met the man.

His mother is your natural mother?

Yes.

And her name is?

Bobbie Morris.

Okay. Now, who else?

Then there’s James. He’s 26. Donna --

Q. “James” you’re referring to as James McKinney who’s seated here?

A. Yes. Yes. And Donna Kemp. She’s 25. Myself, and then there’s Chris Morris. He’s 18.

Q. Your mother, Donna, and your father were divorced at some point. Were they?

My mother is Bobbie.

Q. Right. When was it and how old were you

when your mother and your father were divorced?

I do believe I was two years old.

Q. Who did your father marry after he divorced

Bobbie, your natural mother?

Shirley Crow.

Q. Where did you live most of the time during

your childhood?

In Chandler, Arizona on Cooper Road.

With whom?

My father and my stepmother, Shirley.

Shirley had a daughter of her own?

Yes.

And that is who?

The oldest, Sandy.

Q. When your parents were divorced, was there a

time when you lived with your mother, Bobbie? All

of you?

A. Eventually, we all ran away from home. Most

of us were around the age of 13 when we went to live

with our mother.

Q. Let’s go back a bit to when you were four or

five years old. Okay? You were living in Gilbert.

Right?

Chandler.

Q. Chandler.

Shirley?

With your father, James, and

Yes.

Who else was living there?

There was Sandy.

Shirley’s daughter?

A. Yes. And there was Charles Michael Hedlund,

the oldest son, and James, Donna, and myself.

Q. Did your mother work, your stepmother,

Shirley?

A. I remember her working one time. She was

working at a bar.

Q. Do you have any recollection as to how long

that was?

No, I do not.

Q. All right.

lived in.

Tell us about the home that you

It was dirty.

What do you mean “dirty?”

A. Animals urinating, going to the bathroom in

the house. There were dirty clothes on the floor.

That was mainly in our bedroom, in the kids’ bedroom.

Tell us who slept where in the house.

A. There was James, Mike, my sister, and myself

in one room, and my stepmother’s daughter in another room.

She had her own room?

Yes.

Q. You mentioned about the house being dirty;

urine. Were there animals in the house?

Dogs.

Who cleaned up after them?

The kids did.

Yourself?

Yes.

James?

Yes.

Michael?

Yes.

Donna?

Yes.

What about Shirley’s daughter?

Shirley’s daughter didn’t do any of it.

Q. Could you tell us in terms of the bedroom that

you slept in with your brothers and sister what that

was like?

It was crowded, and it was dirty.

Would there be any animal feces in that room?

Yes.

Q. Would any of the animals urinate in that

room?

Yes.

Q. Were there any other types of animals inside

the home?

Not that I can remember.

No cats, no chickens, no nothing like that?

Not that I can remember.

How many dogs?

Two.

Q. Where were all the clothes in your room that

y’all had?

Everywhere; floor, bed.

Was there a closet?

Yes.

Why weren’t the clothes in the closet?

None of them were clean.

Who would clean your clothes?

We did. The kids did.

Your mother wouldn’t?

No.

Why not?

I really don’t know.

Q. How old were you when you started doing

that? Do you recall?

Around five.

Q. And at that point, was everybody doing the

same thing? Washing their own clothes?

Yes.

Who cleaned your stepmother’s clothes?

At times, we did.

Why?

I do not know.

Q. Who cleaned your stepmother’s daughter’s

clothes?

I believe that she had cleaned her own clothes.

Q. Whose responsibility was it to take the dog feces out of the house and clean up?

It was ours.

What happened when you folks didn’t do it?

A. Most of the time, we got beatings if it wasn’t

cleaned up.

Would Shirley clean it up if you didn’t do it?

No.

What did your father do about that?

A. He wouldn’t do anything. He was hardly ever

home.

Did he drink?

Yes, he did.

Q. You mentioned that if you didn’t clean that

you would get beatings. What are you talking about?

A. With a belt or a switch. We -- at -- a couple of

times, it was a cord from a lamp.

How often would this occur?

Often. Everyday.

Q. During the time that you were living there,

were you in fear of anybody?

Yes.

Who?

My stepmother.

Why?

Because she was always beating the kids.

Did she beat you?

Yes.

Q. What, if anything, did she do to her own

daughter?

None. Nothing.

Did you ever see her hit her own daughter?

No.

for?

What types of things would you kids be beaten

A. Not cleaning the house; not cooking; if the animals weren’t fed.

When did you start cooking your own food?

A. When we were around six or seven, we were

cooking full dinners.

Was there plenty of food in the house?

Seventy percent of the time, yes.

Did you have access to it?

No.

What do you mean, “no?”

A. We were not allowed to go in there to get

snacks if we were hungry and things like that.

What would happen if you did?

We would get a beating.

Did you ever feel hungry?

Yes.

Q. Do you recall any event where anybody may

have gone to get food without permission?

Yes.

Who?

Mike, my oldest brother.

What happened?

He --

MR. STALZER: Objection as to relevance as to this

line of questioning, your Honor; as to Mike.

THE COURT: The objection’s sustained.

Q. BY MR. GONZALEZ: Was James present or

in the house when this happened?

I do not remember.

Q. Was -- or were the beatings witnessed by

many of the children?

Yes.

Q. What would happen when -- well, let me go to

another line, okay?

Do you remember James ever being beaten by your

stepmother?

Yes.

What types of things would he get beaten for?

A. Mainly, anything that triggered her; if something wasn’t done.

Describe your stepmother. Was she irritable?

A. Yes, she was -- seemed depressed and stressed

all the time.

Was she unpredictable?

Yes.

Q. What gives you that opinion in terms of her

unpredictability?

MR. STALZER: Objection as to the relevance, your

Honor.

THE COURT: Objection’s overruled.

You can answer.

THE WITNESS: As soon as anything would happen, if it was her daughter -- I mean, she would just

jump at us, my father’s kids. It was always us that

did anything.

Q. BY MR. GONZALEZ: And what would happen?

The beatings would start.

Q. You mentioned, I think, that this was basically

a daily occurrence?

Yes.

Q. Before you could go to school, when you started to go to school, were there any things that the

kids -- you and James, Michael, any of the others -had to do before you could go?

A. Yes. We lived on a farm. We had a lot of animals. They all had to be fed. The house had to be

clean, and if it wasn’t done, we wouldn’t go to school

that day.

Q. Did this happen in the sense of not going to

school often or just every now and then?

Now and then.

Q. You were responsible for cleaning your own

clothes? The kids?

Yes.

Q. Were you able -- were the kids able to do this

all the time and keep the clothes clean?

No.

Q. When you started going to school and James

started going to school, what types of clothes would

you wear to school?

A. They would either be dirty; some of them too

big; some of them too small.

Did the clothes ever reek of urine?

Yes, at times.

Q. What types of things would happen on the bus

on the way to school, if anything?

A. Because of that, kids would laugh and make

fun of us.

Did you ever see James fight because of that?

No.

Q. Okay. Did you, yourself, ever fight anybody

because of it?

No.

Q. Did, to your knowledge, anybody ever send a

letter to your mother about your hygiene or anything

like that -A.

I do not remember.

Q. -- at school? What would happen, for example,

if the dishes weren’t done by any one of the kids?

There would be beatings.

By whom?

Shirley.

Q. Do you recall any other type of physical injury

imposed by Shirley on one of the kids?

A. I didn’t see it happen, but my sister spoke of

being burnt with a cigarette.

Q. Was this something that you, as kids, talked

about when -- after it happened?

Yes --

MR. STALZER: Your Honor, I have to object for

more specific foundation, to it’s relevance, to Mr.

McKinney as “just kids,” because we have a number

of kids, a number of situations, and it’s hard to determine if Mr. McKinney was part and parcel of

these events or conversations.

MR. GONZALEZ: Judge, it escapes me how James,

being a member of that household, could not know

what was going on unless he was blind about not being touched or anything else. All I’m doing was laying the foundation for what the house was like.

THE COURT: Point is well taken to the extent the

defendant is not specifically included. Hence, I think

it would go to weight of the evidence.

Mr. Gonzalez, you may proceed

MR. GONZALEZ: Thank you.

Q. BY MR. GONZALEZ: Do you know whether

or not James was aware of that?

No, I do not.

You certainly were?

Yes.

Q. When -- getting back to school, when you were

leaving to go to school, did you want to go?

No.

Q. When you were leaving school, did you want to

come back home?

No.

Did any of the kids start running away?

All of us did, eventually.

Do you recall who the first was?

A. I would have to say the first one was James,

because my father let Mike go to live with my mother.

Do you recall where James went?

To live with my mom.

Q. Do you know how long he stayed there or if he

came back?

I do not. He did come back.

Do you know why that occurred?

No, I do not.

Q. When he came back, were the conditions still

the same at home?

Yes.

Q. Did you personally ever see your mother beating on James?

Yes, I have.

Q. Could you give us a guess as to how many

times you could even recall?

No.

Did it ever stop?

No.

Until you left?

Yes.

Q. Were you ever, while you were living here in

Arizona -- you, James and the other kids --locked out

of the house?

Yes.

Q. What types of reasons would you be locked out

of the house for? And by “you,” I mean you and

James and all the other kids.

A. We would -- Shirley would tell us we were too

loud, we were getting on her nerves, and we would

get locked out.

Q. When would these things occur? In the summertime? In the wintertime?

Both.

Q. When you were locked out, for example, in the

summertime with James and the other kids, was

Shirley’s daughter also locked out?

No.

Q. What types of clothes would you be wearing

when you were locked out of the house in the summertime, for example?

I do not remember.

Q. Do you remember any time in the wintertime

when you were locked out?

Yes.

Q. Do you remember what types of clothing you

folks, kids, were wearing when you were locked out

of the house.’

It was mainly jeans and a T-shirt.

Was it cold outside?

Yes.

Q. What would happen if you managed to get

back in the house?

A. We never did manage to get back in; not until

the door was opened.

Did you try?

No.

Q. How long would you be left outside, for example, in the summertime?

Couple hours at a time.

Do you remember every incident?

No.

Were you given water?

cet.

We had the water hose outside from the fau-

Q. Were you given any food if you were hungry

out there?

No.

Q. Basically, was this some type of disciplinary

measure?

Yes, it felt like it.

Q. As you were growing up, did you ever notice

whether James withdrew from you and your brothers

and sisters and everybody else?

He seemed distant most of the time.

Q. Do you remember about when that started

happening?

When he was around nine or 10.

Q. Would it be fair to characterize him as basically a loaner at that point?

Yes.

Were you much the same way?

Yes, I was.

What happened to you? What would you do?

Excuse me?

Q. What caused you, if you know -- or what types

of things would you do alone?

A. Just play dolls by myself or go down to a

friend’s house and play. We all wanted to be alone

when we were together with Shirley. It seemed like

there was beatings all the time or some chores to do.

We looked forward to being by ourselves.

Q. Did you like it when you managed to go to

some other house?

Yes.

Why is that?

A. We had our friends to talk to. At home, there

was no one to talk to.

Q. What was it like when you had to come back

home?

Scary.

Q. At some point in time, Donna left, your older

sister?

Yes.

Do you remember that?

Yes.

How old was she about?

Thirteen.

How old were you?

Twelve.

Who was left in the house at that point?

Myself; Shirley, my stepmom; and my dad.

Donna left. Was she allowed to leave or what?

She was allowed to.

Did you talk to your father at that point?

Yes.

What about?

I wanted to go with her.

Why?

Because I did not like my stepmother.

What did he tell you?

No --

MR. STALZER: Objection, your Honor, as to the

relevance as to this line of questioning.

THE COURT: Overruled. Answer will stand.

BY MR. GONZALEZ: And he said no?

Yes.

How were you feeling at that point?

Like crying.

Q. Do you recall how many times approximately

or your best guess that James ran away?

Around four or five times back and forth.

Q. When you mentioned about James withdrawing, what exactly do you mean by that?

A. He would just be by hisself most of the time.

He didn’t want to play with the other kids. He didn’t

have very many friends.

Q. Did you notice any loss of interest on his part

in -- I call them -- social functions? Like functions

that kids engage in with other kids? Certain games?

Things like that?

No.

Would he still do those things alone?

Yes.

Like what?

A. He would go riding the horses or just go up

and down the canal that we lived on. Or he’d go off

riding his bike alone.

Q. Do you recall James getting in trouble at

school?

No.

Q. Do you recall yourself getting in trouble at

school at any point?

No, I do not.

Q. Did anybody stop going to school pretty much

completely?

Yes.

Who?

James, Mike, and myself.

Are you working right now?

No; I’m attending school.

And where is that at?

It’s a J.T.P.Q. program.

Are you seeing any counselor?

Yes.

Because of past and present experiences?

Yes.

Q. When you were living at home -- and you may

have described this, but I want to make sure -- you

mentioned being hit by a belt, a switch, any other -- a

cord?

Yes.

Q. Would these be things that Shirley kept

handy?

Yes.

Around the house?

Yes.

Always present?

Yes.

Q. Was there ever any statements, comments, or

whatever, made by Shirley to James, yourself, and

others about being bright, dumb, whatever?

Yes.

What types of things would she say to you?

Stupid, ugly, not worth anything.

Was this common?

Yes.

Would she be screaming?

Yelling, yes.

Q. Would any of these things occur to James or

you or any other kid while you were being beaten?

All of us.

Q. So not only did she beat you with whatever

she could find, she would also make disparaging remarks?

Yes.

Q. You mentioned that you all cleaned the house

as best as you could. Right?

Yes.

Would the house still smell, however?

Yes.

Daily?

Yes.

Would the dog feces be in the house daily?

Most everyday, yes.

Q. You mentioned about the room that you slept

in; there would be dog feces in there, urine, and that

there were clothes thrown all over the place?

Yes.

Q. Could you describe that to me in more detail

in terms of how many clothes are you talking about?

One pair of pants sitting on the floor? Things like

that.

A. Like five to six loads of clothes scattered

throughout the room. It smelled. It was dirty. The

beds weren’t made

Q. Did you ever sleep -- you and James and the

other kids in that room -- on a bed that didn’t have

any sheets or anything like that?

Yes.

Was that common?

Yes.

Q. Why would there be no sheets on the bed? Do

you know?

No, I do not.

Were you given any?

No; not that I can remember.

What about blankets?

I do not remember.

Q. Do you remember whether it was cold in there

in the wintertime?

Yes, it was.

Q. How was it in the summer? Was this a house

that had an air conditioner or swamp cooler or did it

have any type of cooler?

I do believe it had a swamp cooler.

MR. GONZALEZ: Can I have a minute, your Honor?

THE COURT: You may.

Q. BY MR. GONZALEZ: Let’s talk about what

you’ve referred to as “beatings.” Do you have any

kids?

I have two.

Do you spank them?

Yes, I do.

Q. Could you tell me -- explain to me so that

we’re clear here, what is -- what does “spanking”

mean to you?

A. It means to spank the kid on the butt with

your hand a couple times and send them to a room or

put them in the corner. That’s a punishment to me.

Versus a beating?

Yes.

Q. How would you describe these beatings in

terms of what occurred to you, James, and the other

kids?

A. Getting beat with a plastic switch or even a

cord for like five minutes at a time. We’d have welts

on us; bruises for weeks at a time.

Q. Did -- when you’re talking about “welts” and

the “bruises for weeks at a time,” do you recall seeing

these types of injuries on James?

Yes.

On yourself?

Yes.

Q. Was there ever a time that you can recall

where none of the kids -- you, James, Donna, Mike,

et cetera -- had a welt or a bruise caused by her?

Could you repeat the question?

It was a bad question. Let me rephrase it.

Do you recall there ever being a time when none of

you had a welt or a bruise caused from a beating?

No.

Q. When you were sent to school in your clothes

that you’ve described to us, would that also be true

the same type of condition that James went to school

in? Dirty clothes?

Yes.

Smelly?

Yes.

Michael?

Yes.

Everybody?

Yes.

Were you given a lunch?

No.

Were you given money to buy lunch at school?

A. We ate in the cafeteria through a program

that they had.

At some point?

Yes.

Q. Were there times when you didn’t have any

money and didn’t have any lunch?

Yes.

Was that often?

No.

It occurred?

No.

Did it ever occur?

A few times, yes.

What did you do then?

Went without.

Q. Diane, describe as best as you can what it was

like for you and James and all the other kids to live

with or in that house with Shirley.

A. It was horrible. It was scary. It seems like we

were all stressed out wondering when the next time

we were getting beat; wondering when we were going

to eat next. She reminds me of the Cinderella story.

What do you mean?

A. Shirley, my stepmother, she has her good

daughter and then there’s four bad kids over here.

MR. GONZALEZ: I got no other questions, your

Honor.

THE COURT: Mr. Stalzer?

CROSS-EXAMINATION

BY MR. STALZER:

Q. Ms. McKinney, couple of questions back, Mr.

Gonzalez was asking about not having food for lunch.

I got the impression that happened very rarely; is

that correct?

On occasions, yes.

Q. How many occasions can you recall, if that’s

possible?

Four.

Q. And those four occasions involved – how many

years of schooling have you attended in your lifetime?

I attended 10 years.

Q. You dropped out sometime during your sophomore year in high school?

In the 9th grade

Q. Ninth grade? In a length of time of nine years

of school, you missed lunch four times?

Yes.

Q. Do you recall how many times, if at all, James

McKinney, your brother, missed lunch, if you know?

A couple of times. Yes.

Two?

Yes.

out?

Do you know what year in school he dropped

No, I don’t.

Do you know if he ever attended high school?

No, he did not.

Q. When he wasn’t attending high school, do you

know if he was working either for some small job or

with his father?

A. He was working for a painting company, I do

believe.

Is your aunt in the courtroom today?

Yes.

What’s her name?

Susan.

And her last name?

I’m not sure. She’s married now.

Do you know how long she’s been married?

No, I don’t.

Q. Where approximately did you live in the country when you spoke of all these incidents that occurred focusing on your stepmother, Shirley?

A. Well, three to four miles out of the town of

Chandler.

Q. Is that anywhere near where your aunt lives

at the present time or did back in 1991?

It’s a couple miles from there. Yes.

Q. You stated earlier in your testimony that as a

result of the home environment, you didn’t go to

school periodically. You said, “It happened now and

then,” I think, to use your words. How frequently

are you talking about that you didn’t go to school in

those nine years?

Myself?

Yes.

At least once to twice a week.

Q. Do you have any idea -- I know it’s a difficult

question -- as to the frequency or the amount of time

that your half-brother, James -- I’m sorry -- your

brother, James, didn’t go to school?

He went to school almost every day.

Q. When -- when you were in school, did -- you

know, children sometimes say they like school or

they don’t mind it or they dislike it. What was your

general feeling towards school?

A. I liked it.

around the kids.

I just was uncomfortable being

Q. Did your brother, James, ever verbalize to you

if he felt comfortable with school, you know, the

things you do in school?

No.

You never talked about it?

No.

Q. You mentioned earlier that you apparently

took the same bus to school that James took. Is that

an accurate statement?

Yes.

Q. Sometimes they have these, what they call,

grade schools and middle schools and, you know,

they separate the different buildings. Was there a

time when you never rode in the same bus as James?

I do not remember.

Q. Okay. In fact, to phrase it this way, do you

remember always -- always taking the same bus to

school with James?

Yes.

Q. You can’t remember for what grades you took

the bus?

A. We took -- we took the bus -- I went from first

grade to the sixth grade on the bus, and then from

there, we moved to Oklahoma.

When you say “we,” do you include James?

A. I don’t remember if he went with us. I don’t

believe that he did.

Q. Do you recall how old James was when he first

left the house to live with Bobbie Morris?

I think he was around 13.

Q. Do you know why he returned? Why things

didn’t work out when he stayed with Bobbie Morris?

No, I do not.

Q. You stated that you saw your stepmother beat

your brother, James. Do you recall how frequently

that would occur? What you would characterize as a

beating?

Two to three times a week.

Q. How would the beatings -- what do you remember happening?

A. Getting beaten with the belt or a switch; anything she could get in her hands.

For not doing some task or chore?

Yes.

Q. I’m sorry. I think we spoke at the same time.

That was a “yes?”

Yes.

Q. In talking about being locked out of the house

-- again, the best you can remember: I know you’re

going back a number of years -- how often did that

happen? Was it frequently or infrequently?

Once, twice a month.

Q. And you stated that you would be outside with

your other bothers and sisters for, at most, a couple

of hours?

Yes.

Q. What time of day do you remember being outside usually when you were locked out?

Around noon; in the afternoon.

Q. You indicated that there was times that James

became or acted like a loaner. And again, for me and

the Court, could you describe what you mean by a

“loaner?” Because it means different things to, different people.

A. He played by hisself.

many friends

He didn’t have very

Q. Did he have friends within the family? Did he

get along with your bothers and sisters?

Yes, he did.

Q. Did you get along with all your bothers and

sisters as well?

Yes, I did.

Q. Did James play with his bothers and sisters

periodically?

Not very often.

And you stated you were a loaner as well?

Yes.

Q. And I think you indicated you’d like to go to a

friend’s house?

Yes.

Q. Did you siblings talk much between yourselves?

Not very often.

Q. You indicated that James ran away about four

or five times. Do you remember that -- I mean, saying that?

Yes.

Q. You said he went back and forth. What did

you mean by going back and forth?” Like, where did

he go or where did he come from?

A. He would go to my mother’s house and back to

my father’s. He did that four to five times that I remember.

Q. When he went to live with Bobbie Morris, was

that kind of something -- I guess we could say run

away, but he planned to go to Bobbie’s house?

Yes.

Q. And if things didn’t work out, would he normally return to your household?

Yes.

Q. You indicated earlier -- I don’t mean to get super personal, but -- that you’re seeing a counselor

now?

Yes.

When did that start?

November.

Of 19 --

Last year.

‘Ninety-two?

Yes.

Q. What was the motivating force? Who got you

going to a counselor?

This trial.

Your childhood?

No; this situation right now.

Oh. The trial? I’m sorry.

Yes.

How often do you see the counselor?

Twice a week.

And how long have you been going?

Excuse me?

Q. How long have you been going? Was that twice

a week since last November?

Since November. Yes.

Q. And again, you’re on probation right now, correct, for a felony?

Yes.

Q. Was any counseling ordered as a result of that

probation?

No.

Q. You stated that the house at times would

maybe be too cool or cold, and maybe in the summertime, a little bit too hot. Would that be a fair statement?

Yes.

Q. And would the physical conditions be the same

for James McKinney -- we refer to him as James

Sr. -- and Shirley?

Yes.

Q. Was this house somewhat of an older house or

newer house? Or how old? You describe its age.

A. Probably around 10 years old when we lived

there.

Q. Do you remember if your father was always

working full time when you were a young child growing up with James McKinney?

My father?

Yes.

Q. What did he do that you remember as a trade

or occupation?

He was a welder.

Did Shirley work outside of the home?

Once, that I remember.

Was it for a very long time?

No.

Q. Did you ever -- going back to your Aunt Susan,

did you ever contact her back when you were living

in Utah? And I believe you were in Utah during

March of 1991.

Yes, I was.

Q. Did you ever call her after your bothers were

arrested?

Yes, I did.

Q. And do you remember having a conversation

with her about a purple pillowcase?

Yes.

Q. And did you ask her if they found the purple

pillowcase in the canal?

I do not remember.

Q. Did you ever talk to your brother, James, regarding these offenses?

No.

Q. Did you ever visit your brother while he has

been incarcerated in Jail since his arrest of April 1st,

1991?

I seen him one week ago.

What about before that?

No.

MR. STALZER: If I may have just one second, your

Honor.

I don’t have anything else, your Honor.

THE COURT: Mr. Gonzalez?

MR. GONZALEZ: One minute, your Honor.

REDIRECT EXAMINATION

BY MR.GONZALEZ:

Q. Diana, do you recall everything that occurred

since you were four, five years old?

No.

Q. What you’ve been talking about are some of

the instances that you can recall?

Yes.

MR. GONZALEZ: No other questions, your Honor.

THE COURT: Ms. McKinney, thank you. You may

step down.

MR. STALZER: Your Honor, may Mr. Allen and I

approach? Mr. Gonzalez, if he wants.

THE COURT: Yes.

(An off-the-record discussion was held at the Bench

between Court and counsel, out of the hearing of the

court reporter and Jury.)

MR. ALLEN: Your Honor, defense would call Susan Sesate.

SUSAN SESATE,

called as a witness herein, after having been duly

sworn, was examined and testified as follows:

THE COURT: Ms. Sesate, if you’ll just have a seat

in this chair.

DIRECT EXAMINATION

BY MR. ALLEN:

Q. Could you state your name for the record,

please

Susan Sesate.

Q. And Susan, how are you related to James

McKinney, my client who is sitting next to me?

He’s my nephew.

Q. All right. And he’s your nephew in what relation? Explain to the Court.

life?

My brother is his father.

All right. And have you known James all his

Yes, sir.

Q. All right. And -- and how well do you know

James?

A. He’s my nephew. I know him pretty good. I

babysat him, changed his diapers, cleaned his nose.

You’ve known him since he was born?

Yeah.

Q. When James was born -- he’s now 26 -- how

old were you at that time?

Ten years older than James. I’m 36.

Q. All right. So you were about 16 then; is that

right? Did I get that right? Or 10?

When he was born?

You’re 10 years older?

Yeah.

Q. All right. And as James was growing up,

where were you living in relation to where he was?

A. There was about a hundred yards difference

between the houses when my brother got custody of

all four kids, which that includes Michael Hedlund,

James, Diana, and Donna. They were all -- the

houses were like a hundred yards a part, and they

lived right there for -- until I was 19 and married

and moved out of the house. And after that, they

moved, but I don’t know approximately when it was

that they moved. I mean, they stayed there for a

while, even after I moved out of the house.

Q. There was about a six-year period you lived

next door?

Approximately.

And you were about 13 years old at that time?

A. When I was 13, the marriage broke up between Bobbie Jean and my brother.

Q. All right. Can you tell the Court a little bit

about that; what you observed in that regard?

A. My brother used to come and pick me up at

4:30 in the morning to -- to go down, because he told

me Bobbie got a job and she was working days. He

was working days, too, but he had two welding

shops. He had one he owned, and one he worked out

of, where he stocked cores and things like that -Q.

Not in so much detail, if I could interrupt.

A. Well, during that time while this was all going

on, he was gone so much. He would pick me up -- incredibly, I recall -- in the morning and drop me off at

his house. I’d be there 4:30 in the morning till 8:00,

9:00.

Before you lived next door?

Right. This is during the marriage.

Q. And you were brought over to babysit with all

the children born at that time?

A. Yes. Diana was just -- she wasn’t even a year

old. She was tiny.

How old was James at that time?

A. Oh, gosh, let’s see. He got custody of them

when he was like five, so I’d say he was two or three.

They were all right in line; James, Diana, and Donna. They were just like months apart in their ages.

And Michael was there, also?

Right.

Q. Okay. And when they were still living with

the natural mother, all these four children, what was

the condition of the house that Bobbie Morris kept

that you can remember?

A. Well, she wasn’t a clean person. I mean, when

you walked through the door, it wasn’t nothing to

see, you know, diapers full of -- all around -- they

were all around. Everything stunk; the furniture in

the house. And you know, Bobbie wasn’t mean. I

never saw her spank or strike the kids, but she

wasn’t clean. No.

She was affectionate with them?

Yes, she was.

But it wasn’t a clean house?

No, it wasn’t hygienic at all.

Q. All right. Now, at some point in time, your

brother and Bobbie Morris got divorced. Correct?

Yes, they did.

Q. What happened as a result of that? What did

Bobbie do with the children?

She ran with them.

And ran where?

A. The first time, I believe, it was California.

She ran to a lot of different states. I know she went

to California first and Kansas twice, California

again. I know she went through Texas, New Mexico.

I can’t imagine all the other states, but I know she

went through those states.

She took the kids?

Yes, she did.

Q. Your brother was trying to get custody of the

children?

A. Yes. He had a court date. She didn’t tell him;

they told him after they postponed the first date.

Then they had to try again to bring her into the

court. And during that time, he went looking for her

to find out where she went. He found out she was

out of the state. That’s when he went to get them

and brought her and the kids back to California (sic).

Q. And by “he,” you’re talking about James, the

father?

Right; my brother.

Q. He brought them all back, even her, and as

soon as he did, she would run again. As soon as he

brought her back, within a week she’d be gone again

to Kansas. She had the kids there. My brother went

there twice on two different occasions. It all occurred

in one year. And during that time, the second court

date had come up between the run from California to

Kansas. The second court date had come up; she

didn’t show again. They told my brother they were

going to get another court date. She set a third date

for her to come in and state what was happening and

why she was running with the kids, and the last time

that he went and got her and brought her back, she

wouldn’t tell her own lawyers why she didn’t show

up. She was in Arizona, but they don’t know why

she didn’t show up to the Arizona court date. So they

gave my brother custody.

Q. So at some point, he gets legal custody.

there a point in time --

A. She was in Arizona with the kids, and one day

-- something -- it was the day before. We didn’t

know, of course, when we went to court the day after

that that she’d already taken off again and went

back to California again with them.

Q. Okay. At some point in time, your brother

goes over to California?

Yes.

And gets the kids?

A. And goes to court there. He set up a court

date there to get custody of the kids because he took

his papers from Arizona to California and said,

“Look, I’ve got my custody of my kids, you know, but

they won’t give them to me, you know,” He went to

the police and they wouldn’t enforce the -- because it

was an Arizona court order. So he took it to the

courts, and they told him he’d have to get a lawyer

and fight it right there in California. She was pretending to establish residence there, but she wasn’t -MR. STALZER:

I’m going to object.

Excuse me, ma’am.

I have to object to the long narrative and relevance

to some of the statements that Ms. Sesate’s making.

THE COURT:

Objection sustained.

If you can narrow it down?

MR. ALLEN:

That’s fine, Judge.

Q. BY MR. ALLEN: When we’re talking about

Bobbie Morris, the mother, taking the kids and going

to these different states, were the kids going from

household to household?

Constantly.

Q. So she just didn’t have the kids all the time; it

just was moving?

Right.

Q. They would spend time with the father, and

she would take them and go somewhere?

Yes.

Q. And now, eventually, your brother gets them

for good?

Yes.

And he brings them to Arizona?

Yes.

Q. And that’s when -- to go back on your testimony earlier, that’s when he moved next door to where

you grew up?

A. I believe that he rented that house before, after he had got the court date and got the kids here in

Arizona. He’d already rented the house next door to

us, and he’d already married Shirley Crow, his second wife, during that same period of time.

Q. Okay. So during the fight over the custody, he

meets and marries Shirley Crow?

Yes, he does.

Who is Shirley McKinney?

Yes.

Q. And so when the kids are brought back for the

last time and for a steady period of time, that’s when

you were living next door to him? To your brother?

Yes.

Q. And the house that you’re talking about is the

house you grew up in?

Yes.

Q. During that period of time now, were they

staying with their father?

Uh-huh.

Q. Can you describe to the Court the household

that you observed.

A. It was gross. It was gross. I mean, the house

was filthy, the kids were filthy, they never had clean

clothes that I ever saw them in. If they had clothes,

they were ill-fitting clothes. I mean, it was disgusting.

Q. Did you have to babysit them at any time at

this point?

A. He rarely -- he rarely would let me, you know,

go over and babysit, because my mother had a real

problem with the way the house looked and the way

they were treated, and him and my mom and his

wife clashed a lot. So -- but see, I could get away

with it, because I was still a kid. I was always there

making sure they were all right. My mother sent me

over there consistently to do that.

Q. Was Shirley there the whole time? Did she

work, to your knowledge?

A. I understood -- well, she was working in a bar

when my brother met her. She was a bartendress of

some kind when my brother met her. She left him

for a whole week once, and that was shortly after he

had gotten the kids. It was not even a year later she

left him and went back to work at the bar. And I

think that lasted two weeks.

So mainly she was around the home?

Yes; all the time.

Q. Was your brother around very much that you

saw?

A. No. No, he was still working all the time. The

only thing that he had when he came back after his

divorce was his job. That was it. And he drank

heavily. He was a heavy drinker.

Q. When he was around the home, was he drinking heavily then?

Oh, yeah. Absolutely.

Do you remember him drinking?

A. He -- he was a beer drinker. He likes beer, but

he also had to have his stuff, too; hard liquor.

Q. Okay. Did you ever see the -- I assume you

saw the inside of the home, also?

Oh, yeah.

Q. Okay. Describe the bedroom that the four

children of your brother’s stayed in.

A. It was -- they had -- it was a small room. I

would say that you could have put the desk you’re

sitting at in the room. As far as lengthwise, it was a

set of bunk beds about the length of that desk (indicating) in one corner of the room. There’s no chest of

drawers. There was a closet with nothing in it but

dirty clothes; things like that. There were no hangers; nothing to hang anything on. There were no

sheets on their beds. None that I ever saw.

Were there animal feces?

Absolutely. All over. All over.

Were there animals in the house besides dogs?

Yes, sir. Oh, yes.

Q. What do you remember being -- what animals?

What type of animals were there?

A. I saw a goat. I saw a monkey. I saw chickens.

I saw dogs. I saw cats. I saw a snake, a boa constrictor. I mean, you name it and those animals lived in

those kids’ room, and one little room.

Whose animals were they?

A. It was Shirley’s. She brought home everything

that she saw.

They were not the kids’ pets?

No.

Were they responsible for them, though?

A. Yes, they were; the feeding and the cleaning

and everything.

Q. Did she have other animals outside that they

took care of?

A. Oh, yes. There was a cow. There were horses

in the pasture. They didn’t belong to my brother, but

in order to pasture the cows, they kept it in the same

area, and they had to feed those, too; the cows, the

pigs, the goat. My brother had hunting dogs they

had to feed and take care of.

Q. These were all chores that these small children had to take care of?

A. Yes, sir. And Diana was at that time 18

months old when my brother got them. Donna was

three, James was between four and five, and Michael

was seven. So I mean, they were little. They were

little guys.

Q. Okay. And what age were they when they had

to start doing all of these chores, if you can remember?

A. It started right from the very beginning when

they first moved there. Shirley had already collected

all the animals, so those chores were from day one.

Q. And Diana, who testified earlier, she was very

young at that time?

A. Oh, yes. She was very young when James was

constantly being in trouble at school, because kids

were making fun of his clothes and the way he

looked. Oh, yeah. Diana was just a baby. She was

still toddling around.

Q. Do you remember a specific incident with

James and his clothes and the school?

Oh, yes.

Tell us about that.

A. He had gotten suspended from the school bus - for fighting on the school bus. A little boy was making fun of him because he said he smelled and his

clothes were dirty, and you know how kids are. And

he got suspended off the school bus for fighting this

kid.

So what did you observe as a result of that?

He got a beating with a water hose.

Do you see him get hit?

Yes, I did.

Were you present for it?

Yes, I was.

Who did the beating?

Shirley.

And she used what?

A. A water hose. It was about a yard long like

that (indicating), and she had like a pocket knife,

and she snipped the hose and she went after him.

She beat him on the back of his head, down his back,

all over his legs, his arms; anything that moved, she

hit him.

Did they cause any injuries that you saw?

A. He had bruises for weeks after that all over

him.

Q. During that beating, did anybody else get involved?

A. Michael. He tried to -- Michael Hedlund tried

to stop her. He grabbed her arm, and so she swung

back and hit him across the side of the face and

bruised his face.

What did you do as a result of this?

A. I was about 14 years old, and I ran and got my

mom, and my mom waited for my brother to come in

from work. And she went over and confronted him

and told him, and my brother told her to keep her

nose out of his business.

Q. Did the chores that the kids have to do -- and

when I’m talking “kids,” I’m including James in all of

this -- did that include cooking and cleaning?

Yes, it did.

Did you ever observe them doing this?

A. All the time. Like I said, my mother would

send me over there, because she knew Jim wasn’t going to say anything or Shirley wasn’t going to say

anything to me because I was a kid. But they would

tell me to keep her nose out of their business. I went

over on a regular basis every day after school if I got

the chance, you know, just to go over and talk to

them. It was nothing to see James and Michael

standing on chairs at the stove cooking or having to

stand on chairs to do the dishes.

Because they were too short?

Oh, yeah.

Did you know Sandy, Shirley’s daughter?

Yes, I did.

Did she have to do any chores?

I never saw her doing anything.

Did she have her own room?

Yes, she did.

Q. Did you ever see the four children -- James,

Michael, Diana, and Donna locked out of the home?

Oh, yes.

Q. Did this -- how often did this occur? Do you recall?

A. When they were -- when she first had them

the first two or three years, that was like a constant

thing. And in the summertime, they stayed outside.

And if she was really angry at them, they couldn’t

turn the water faucet on outside and even get a drink

of water, and it would be 110 degrees outside. Just

miserable.

Were they out there longer than two hours?

Oh, definitely. Definitely.

Do you remember one experience especially?

A. The one that I remember the most is I had just

turned 16 and I got my driver’s license, and my mom

and I had went somewhere that morning. And the

kids were outside at the side of the house, the four

kids -- Michael, James, Diana, and Donna -- and they

were just -- they were like under an eve hanging over

the house, just a little ways. They were staying in

that shaded area there because none of them had

shoes on. And Diana and Donna wore just little

panties. And James and Michael were in shorts, little cutoff shorts and no shirts, no shoes. And I

hadn’t spoken to him that morning. We just saw

them sitting there. When we came back four hours

later, they were still sitting there. It’s 1:00 or 2:00 in

the afternoon, and I mean, their faces are beet red,

they’re not moving from that spot. So my mom sends

me over, naturally, to find out why those kids are sitting there still. So I go over there and asked them.

She locked them out. She wouldn’t let them in and

she wasn’t going to waste water. They couldn’t come

back in until their dad came home, because their dad

was going to punish them.

How old was Diana?

A. Oh, Diana was potty training -- two or three

years old -- first few years, when they first moved in

next door.

Q. And this was a common experience that you

saw?

A. Yeah. It happened quite a lot in the beginning. But later on, just once in a while.

This happened all year long?

A. As far as I know, I noticed it more in the

summer, because I was in school during the winter

months. So in the summertime is when I noticed it

happening.

Q. Did you ever see it happen in the wintertime

when it was cold?

A. I saw Shirley pick James up by the scruff of

the neck, set him out on the porch with no shoes on,

no coat. I mean, the grass would crunch under your

feet, it was so cold.

Q. What were the conditions of the children? Did

you see anything on them during these years of being

there?

A. They had bruises all the time. It was hard to

tell what were new bruises and what weren’t. I

mean, they always had bruises on them.

Q. What was James doing during this period of

time? What was James doing during this period of

time as a child?

A. James began to, like, draw away and become

real quiet and reserved and didn’t -- I mean, he -- he

was the most verbal one of all of them when they

first moved in next door. He’d say, “She did this to

me.” After while, he stopped saying that. The older

he got, the less he said. I mean -- but he was consistently being suspended from school or being suspended from the school bus for fighting because kids

were making fun of their clothes and that kind of

stuff. I know that they didn’t have lunch money on a

consistent basis.

How do you know that?

A. When they first moved in next door, Michael

and James were the only ones in school. Diane and

Donna were too young. The next year, she would

have been old enough to go. James missed kindergarten because of the running, you know, between

the marriage. He would have been going to kindergarten, but he didn’t make it. He didn’t make it because he’d already missed it. And they started him

in kindergarten a year behind all the other kids after

my brother got custody.

And were you going to school at that time?

A. Yes, I was. Yes. And we rode the school bus

together up until I went to junior high school or high

school. When I hit high school, I went on a different

bus, but up until then, these guys rode the same bus

I did.

And you heard the harassment?

A. Oh, absolutely. There was no way you could

miss it.

Q. We were talking about lunch money, and what

was your understanding -A. I understood Michael and James -- my mom

had told her, “You need to go down and sign them up

for the lunch program.” She never would do it. Now

later on, I guess, when Diana and Donna got in

school she did, but she didn’t when Michael and

James -- she just didn’t give them any lunch money.

I know that her daughter, Sandra -- ‘cause she would

-- Sandra and my sister, my younger sister, are exactly the same age, and they told each other everything.

Q. Is there one incident regarding lunch with

James that you can recall specifically?

Oh, yes.

And what’s that?

A. Jamie was -- I think it was first grade, second

grade, and he didn’t have lunch money, and he had

stolen a lunch at school and they caught him eating

it. And they suspended him from school for, like,

three days. And when he came home, he told

Shirley, “I’m going to be suspended,” all this. She

said, “When your Dad comes in, he’s going to punish

you.” Well, when my brother came in, he pulled

James on his lap -Q. Let me stop you. Were you present at that

time?

A. Yes, I was. I had gone over after school, and I

was afraid they were going to beat him up. I went

over and stuck my nose in and was sitting there

when my brother came in from work. I went over

earlier just to make sure that Shirley didn’t beat him

up.

What did your brother do to James?

A. He asked James what he did, and James told

him, “I stole a lunch because I was hungry, and I

didn’t have any money.” And my brother told him he

wasn’t going to punish him for stealing lunch; he was

going to punish him for getting caught.

Q. That appalls you? Still appalls you? That appalls you?

Yes.

You need a few minutes?

I’m fine.

THE COURT: Counsel, why don’t we take a recess? About 15 minutes.

(A recess was taken at 2:45 p.m.)

(Court reconvened at 3:05 p.m.)

THE COURT: Mr. Allen?

MR. ALLEN: Thank you, Judge.

FURTHER DIRECT EXAMINATION

BY MR. ALLEN:

Q. Okay, Susan, we were discussing what happened to James with his father. In regard to the

lunch incident, at some point in time, do you remember the kids leaving home one at a time?

Yes; they all ran away.

Leaving the household for good?

Yes. They all ran away at one time or other.

Q. Okay. Do you remember what happened to

James in any regard to runaways?

A. Yes. After they moved, I had already gotten

married. I was about 20 -- I was, I think, 21 and I

had gotten married and had moved out of the house

and was renting a house in Gilbert. And James just

showed up one night about 8:00 o’clock -- it was between 8:00, 8:30 at night. He was dirty, he was

tired, he had -- he told me he had a bus ticket from

Oklahoma where they were at to Flagstaff and he

ran out of money. So he couldn’t get another ticket

to come on down. He went from Flagstaff then and

hitchhiked to my house, because I was the only one

where he knew I was at.

Q. He was living with his father at that time and

Shirley, but this was up in Oklahoma?

A. Right. This happened after I had married and

moved out of the house.

Do you know how old James was at that time?

Eleven.

Q. Could you describe his condition when you saw

him.

A. He was dirty, he was bruised, his arm and

shoulder and face and stuff had been bruised. He

told me he had had a fight with Shirley, and he told

me the bruising was from her twisting his arm but,

you know, like I said, I wasn’t there and I didn’t see

it. I just know what he told me; that he hitchhiked

from Flagstaff and came to my house.

That was the reason he ran away, though?

That was what he told me.

Q. Okay. And do you know any other incidents of

James running away from Shirley and those living

conditions?

A. Just a couple years after they moved in right

next door to us. I mean, they ran away constantly. I

mean, they didn’t stay gone very long, but somebody

would catch them and bring them back, you know.

Q. Do you know what happened to James after he

ran away to you at that time period from Oklahoma?

A. His real mom, Bobbie, called the authorities, I

guess. James had some kind of warrants out for

him. I had called her and told her James had got

here to my house. He’s real dirty, he’s real tired, he

hasn’t eaten in a couple of days. I know it took him

two days to get here from Flagstaff. He didn’t know

which connection to take or something like that.

From there, it took him two days hitchhiking from

Flagstaff to my house in Gilbert, and then I called

her as soon as I fed him and got him cleaned up and

everything. And I put him to bed in a spare room

that I had, and I called her and told her he’s here

and he didn’t want to call anybody and tell them he

was here. She had the sheriff at my house within

two hours after I had called her. The sheriff got

there and picked him up and took him from there. I

believe he went to Durango; either Adobe Mountain

or Durango.

Juvenile detention?

Yes.

Q. Can -- can you describe in your own words to

sum up the condition of the household and what

these kids, including James, their living conditions

were during that period of time, six years you living

next door to them?

A. To the time they lived there, right off the bat,

James would call and tell me, “She’s mean,” and she

does this and she does that. He was the more verbal

of them. As the six years went on, while I was in the

house with my mom, he began to be quiet; not, you

know -- you know -- I mean, they were dirty all the

time. Their clothing was dirty, the house was always

dirty, it was filthy. I mean, my pig lives in a cleaner

pen than that house was. It’s -- it was pretty gross.

Q. Was there ever any improvement? That it got

better after somebody had done anything?

No, sir, I never saw it get better.

Always remained the same?

Or worse.

Or worse?

A. When you think that they couldn’t do something else, they would bring something in that was

much more gross and you think, how could they live

in that?

MR. ALLEN: I have no further questions.

THE COURT: Mr. Stalzer?

MR. STALZER: Thank you, Judge.

CROSS-EXAMINATION

BY MR. STALZER:

With the last item. Ms. Sesate --

Yes.

Q. -- you mentioned the kids were always dirty.

It’s kind of a vast description. Can you explain again

what you are meaning by that, at least in James being part of that group?

Yes.

How was he dirty?

A. Their -- they just -- I don’t know. They had no

regular baths. At least I never saw them take regular baths.

Well --

And their hair was dirty.--

Excuse me. Let me ask you this, if I could.

You never saw them take a regular bath?

No.

What is a “regular bath” to you?

A. A bath once a day, once a week. I never saw

that happen. Their clothes were never clean.

Q. Had -- well, let me stay on that issue. Do you

know if they bathed maybe once or twice a week?

No, I don’t.

Did you ever ask them?

Yes. I did.

Once or twice a week, did they tell you?

A. Yes, most of the time they would tell me when

I asked them, because they smelled like urine. It

was obvious.

Every time --

Most of the time.

Q. Let me ask the question before you answer,

‘cause she’s got to take down what you’re saying, so

slow down a little bit.

Every time you came in contact with James or

the other children, they smelled like urine every time

for the six years you lived nearby?

I won’t say every time.

Q. How often did they say they bathed when you

asked them if they did?

Saturday. Saturday was bath day.

Q. Do you know from your experiences with other

friends, relatives, acquaintances if that is something

highly unusual? To take a full bath only one day a

week?

Nobody I know does.

Q. When you say, “They were dirty,” you spoke

about their clothes. Were their clothes always dirty

every day they went to school?

I saw it that way. Yes.

Q. What was it or how would you describe the

dirtiness of the clothes?

A. They were stained, torn, ill-fitting, buttons

missing, you know. Yeah.

Q. Anything else dealing with dirtiness as far as

your description of James or the other children?

No; that pretty much sums it up.

Q. And you lived nearby from the time you were

about 10 to the time you were 18?

A. Till -- no, till I moved out of the house. So I

was like 13; so 19 when I left.

So for that six-year period of time?

Yes.

Q. And when you were 19, that was about the

time you started dating and -A.

I got married.

You got married?

Uh-huh.

Q. And did you consider yourself a fairly responsible person for that age?

A. I was kind of kid-ish. I was sort of a late

bloomer and not real -- not real smart about a lot of

things. My mother was very -- brought up in the old

school, and so she was -- I was a late bloomer. As far

as dating, I didn’t date until I was 18 years old.

I’m sorry. I forgot her first name. Is it May?

My mother?

Yes.

Roxie.

Q. Roxie. You’ve testified at length -- I don’t

know, maybe an hour or so -- about the deplorable

conditions in the home, deplorable way in which the

children were kept physically. Did you ever call the

police?

My mother did once.

Did you ever call the police?

No, I didn’t.

Q. You spoke about going over to Shirley’s house

to make sure James wouldn’t get beat. Remember

that?

Yes.

Q. If you were so concerned, why didn’t you call

the police?

A. I was scared of my brother, and I believe my

mother was, too. I mean, he made that clear he

didn’t want any interference.

Q. Then, I guess my question is, how did you stop

Shirley from beating James?

A. Well, she never did anything. The only time

she ever beat them that I saw or any of them was the

one time with the water hose, and she didn’t know I

was witnessing anything because I was in my yard.

Our house faced theirs.

So that was the only time --

Yes.

-- you saw with your own eyes --

Yes.

Q. -- Shirley beating James, and the rest was

what was told to you?

Yes. The children told me.

Q. How often -- and this is a tough question,

‘cause I know you’re 36 now, and we’re going back a

number of years and we’re not counting. How often

would they be telling you -- I mean, realistically

you’re living next door. How often was Shirley beating the snot out of them?

A. Right. The first couple of years, it was frequent. It was like every two to three days James or

one of the other children would tell me that they had

gotten beat.

And that someone would be getting beaten?

A. Yes; that one or all of them were getting beaten. And then they tapered off when my brother realized I was telling my mom what was happening. The

kids were telling me, I was telling my mom, she was

going down and confronting him.

So after a couple years, it starts to taper off?

A. It tapers off and they stop telling us, but they

can’t come over the house. They weren’t allowed.

Q. As you get into the 5th and 6th years, does it

seem to taper off more and more?

Yes.

Or is it you have no conversation?

A. Yes. About the last year before I was married

and moved out of my house, yes, it tapered off to

nothing.

Q. You mentioned you were on the same bus with

James and maybe Michael and maybe some of the

other girls for a few years. Did you go to the same

school?

No.

What about the school personnel? They --

I know --

Q. You have to answer -- you have to give me a

chance to ask a question.

Did the school personnel get notified of this condition? It should have been obvious to them, wouldn’t

it?

I would think so.

Q. Did any of the children tell teachers, Deans, or

Principals by saying, “Hey, look what Mom’s doing to

me?”

A. I don’t believe so. I don’t believe they went to

anybody and told them.

Q. You mentioned, like this most recent time,

that James had a bruise where he was hit by Shirley

and it was there for some time.

Uh-huh.

Like the one with the hose?

Yes.

You saw the bruises?

Yes.

Q. They never mentioned, any of the children,

about school personnel seeing bruises on their body,

did they?

Huh-uh.

That’s a no?

No.

Q. Do you know if at any time anyone notified,

like, what might be called Children and Family Services or Child Protective Services, like a welfare

agency to help these kids?

A. I don’t know if anything like that was contacted or if any -- any association was ever contacted on

them. I know my mom confronted my brother and

continually tried to get him to do something about

the situation. But I know that letters were sent

home from the school about the clothing and the appearance and the children’s appearances and their

odor; their body odor. Now what Shirley or Jim did, I

don’t know.

Q. You mentioned this vast array of animals that

were kept in a rather small room with a few kids in

there?

Yes.

Q. From your own personal observations, if any,

how long did all of these animals stay in one room?

A. That’s a good question. I really don’t know

how long. I know that the goat was there a couple of

years, and he -- and it stayed there until it was big

enough to go outside.

Was this goat tied to the bedpost or I mean --

A. No, just closed the bedroom door and he was in

there. It was a little goat, baby goat.

Q. You mentioned, I think, that the kids always

had to do the cleaning in the house.

I always saw them doing it.

Was that on a daily basis?

A. Usually.

school.

I went over there every day after

Q. And I think were they also responsible for like

washing the clothes and -A.

Yes.

-- they were responsible for preparing food?

Yes.

Q. Do you know, did they have to prepare, was it,

food only for themselves or food for James, and -- I’ll

call him James Sr. -- your brother, and Shirley as

well?

The whole family.

Q. So they basically ran the house as far as the

basic needs day in and day out?

Yes.

Q. I have one question. With that thought in

mind that they were basically employed on a daily

basis in the house, then why was the house dirty

every day and their clothes dirty every day?

A. I have no idea, but they were little. We’re

talking little when I started. Nobody ever taught

them to clean or to, you know, pick up or they didn’t

know how to do it. I mean, Diana was 18 months old

when it started.

Q. Well, let me stop you there. Obviously, Diana

was not doing the work. I mean, an 18-year-old or 18

months?

Eighteen months.

Okay. That’s an infant?

Yes.

Q. So that infant wasn’t working in the house.

Right?

A. She was still was required to pick up and do

things, too, at 18 months old. And when she didn’t,

she got spanked.

Would she talk at 18 months?

Q. She could a little. She could understand “yes”

and “no,” and that kind of stuff.

Q. So then what you’re saying is that the children

weren’t really cleaning the house?

A. They did. By the time they were old enough,

they did.

Q. But now we’re talking about a different type of

cleaning six years later. From what you observed –

A. Right. It was different. It still wasn’t clean

and it was still, you know -- there were just too many

animals in that little house, plus the family.

Q. When -- when did you move to the -- strike

that.

Where do you live right now?

I live in Gilbert presently.

Basic intersection?

Gilbert and Warner.

And how long have you lived there?

Five years,

Q. And so you were living at the same location

back January, February, March of 1991?

Yeah.

Anyone live with you at that location?

A. Anyone live with -- oh. James and my brother

and his wife, Shirley, moved in with me in December,

I think it was, like the end of December, beginning of

January and they were there about two-and-a-half

months. They moved out at the first of March, but

actually moved out the end of February, but they

came back and, got their stuff in March.

Q. Okay. Simple question. How long did they

live there all together?

It was two -- two-and-a-half months.

Knowing their background?

Uh-huh.

Q. And knowing that they keep house worse than

a cesspool, why did you let them in?

Well, my brother -- I love my brother.

I realize that.

A. And he came and gave me this story of how he

had lost the place he was living in.

So you gave him a break?

Yes, I did.

Q. Much like any person would or could for probably any blood relative?

Yes.

Q. Anyone ever come and live near you in addition to your brother and his wife?

No.

Q. Did you have another piece of property suitable for habitation near the house?

Oh, yes. There was a trailer in the back.

Who lived in the trailer?

A. That was a friend of my brother’s which is another one of my brothers -- let him live there.

His name?

Kenny.

Kenny?

Kenny Foster.

Did anyone ever live with Kenny?

Not that I know of.

Did James McKinney ever live with Kenny?

Not that I know.

He never did?

A. He didn’t. When he lived in that trailer, Kenny lived there by hisself.

Q. Did James ever live in your house when his father and stepmother lived with you?

Yes.

Q. And how many months did James live with

you?

A. After about a month-and-a-half, James -- there

was a camper right beside the trailer where Kenny

Foster lived. This camper was set up on air (sic), and

he lived there. He moved out in about a month-anda-half. I guess he couldn’t take it anymore, and he

moved out.

Q. So I have it correct, and so the Judge could

hopefully understand, James lived there for about a

month-and-a-half or more than that?

A. He lived inside my home for a month-and-ahalf. He still ate at my table. He was there for twoand-a-half months.

Total?

Yes.

Either in your house or in the camper?

Yes.

Or --

Yes.

Q. And

months?

somewhere

around

two-and-a-half

About that.

Q. Did he come directly from prison to your

house?

A. After he got out, it was like a week or more before my brother came and gave me a story about how

he needed a place. So yes, he had just gotten out.

Q. Did he move out away from your property

about the same time when James and Shirley moved

away?

A. He moved out actually a week before Jim and

Shirley did.

Q. Do you know if he got -- James, your nephew,

got into a dispute with Kenny?

Kenny told me he did. I didn’t see the dispute.

Was that a dispute over a possible theft?

A. Yes. Kenny came and asked me about it and I

said, “Well, I don’t even know where he’s at ‘cause he

already left my house.”

Was Kenny looking for property?

Yes. He said he took a tool.

MR. ALLEN: Judge, I’m going to object. I think

we’re getting away, far away from the direction and

the purpose of this witness with this line of questioning.

THE COURT: Mr. Stalzer? Are you going to go into

this any further?

MR. STALZER: No, Judge. I was done. I was going into another area.

THE COURT: Overruled. The answer will stand.

MR. STALZER: I’m sorry, Judge.

Q. BY MR. STALZER: With respect to you getting married at approximately -- I think you said you

were 19 or 20?

Yes.

You moved away from the house?

Yes.

Q. Did you ever see James McKinney from -- from

that period of time up until the time he came to live

near you or with you back in February -- January,

February, March of ‘91?

A. When I moved out at 19, I was married, moved

to Gilbert, then James ran away and came to me

when he was 11. I was 21 and still married.

Q. Did you tell the police that he had these bruises on him when they came to arrest him?

A. They knew. The sheriff knew that, ‘cause he

was in bed and they went in and got him.

No, did you tell the police?

A. Yes, I did. I told him not to pull his arms behind his back, ‘cause his arms was bruised.

Did you tell him --

James had told me.

Q. Okay. How frequently would you see James

from that point in time up to the time of his arrest?

A. I did not see James again until James was almost 17 years old -- 16, just before he was he went to

prison.

Where did you see him?

A. He came to my house. I was then living in

Chandler and he came to my house and I saw him for

like 20 minutes. Him and Michael, his brother, came

and visited me. They were just there for like 20

minutes.

Was that just like a social visit?

A. I asked him where he was working, and I can’t

remember what he told me, but he was working -Michael was working construction and that was

about the extent of it. And the next thing I knew, he

was in prison, and I heard that through the family. I

didn’t know that he had been arrested.

Was James social to you when he came over?

Yeah. Yes, he was.

Were you married to Louis at that time?

No.

Q. Okay Was James social to your husband at

that time?

The husband I was married to?

Yes; when he was 16.

A. My husband wasn’t there when he came, so

my husband never saw him.

Q. Did you ever have any problem socializing,

getting along with James McKinney?

No.

Q. Did you ever see him having any problem getting along with any other individuals other than

Shirley or James, your brother?

A. The only time that I ever saw James be upset

or angry was around the 10th -- no, it was like the

9th -- 7th, 8th, 9th, something like that, of February.

And he -Q.

February of when?

Of 1992 -- ‘91.

‘Ninety-one?

A. ‘Ninety-one. I got my dates wrong. And he

was real agitated. Michael’s car broke down, and he

had tried to fix it that day. And he was trying to fix

it in my back yard, and he was just real upset because he couldn’t get it running. That was the only

day he and I had words, because he kept coming -Q. But generally speaking, did you always see

him getting along with people okay?

A. He just was quiet. I never saw him interact

with anybody that much.

Q. When he was at your house, how would you

get along with him during the months of January

through March?

A. James was really reserved, real quiet.

didn’t argue or anything like that.

Did you get along?

Yes, we did.

Q. Did you -- did he get along with your husband,

Louis?

Yes, he did.

Q. Did James drink casually on a friendly basis

with your husband, Louis?

I only saw him drink once when he was there.

Q. How many beers -- or whatever he was drinking -- did you see him drink?

A. I never saw him drink more than the one beer.

My husband told me he had two, but I never saw

him. I never saw him. I saw one.

Was he intoxicated from what you could tell?

Not that I could tell.

Q. Did you ever see James intoxicated around

your house?

Once.

Was that at your husband’s birthday?

Yes.

And that was a party that was at your home?

Yes.

bit?

Was your husband intoxicated as well? A little

A. No. Well, he’d had a few drinks, but he wasn’t

intoxicated where he couldn’t walk on his own or anything.

Q. Was James walking on his own that same

day?

A. I don’t know. He was -- I don’t know. I don’t

remember.

Were you intoxicated?

A. No, I hadn’t had anything. I did all the cooking, so no.

Q. Except for Kenny’s one gripe about the item

that was missing -A.

Uh-huh.

Q. -- did it appear to you that Kenny got along

with James?

As far as I know, yeah.

Q. Despite the background that you’ve discussed

concerning the children as they grew up -- that they

had to clean house, they had to put up with dirty

clothes, and the smells -- did they appear to you

when you observed them to have what you might call

normal social skills with other people, except for

Shirley and maybe James, your brother?

Not really. No.

Explain, please.

A. Like I said, they changed. Their whole personality changed, and especially James. Michael

was like the protective one. James, who started out

saying that “they hurt me these times,” no longer

says that anymore. He’s not -- he’s very quiet, very

inward, very, you know, keeps everything to hisself,

stopped saying what was happening to him.

Q. Listen to my question, please. When you saw

them, if you did, with other -MR. ALLEN: Objection. Mr. Stalzer asked a question and I believe the witness answered, and now

he’s re-asking the same question, trying to get a different answer.

THE COURT: Overruled. I’ll let you go over it in

Redirect if you wish to.

Mr. Stalzer, you may proceed.

BY MR, STALZER: When James was older --

Right.

Q. -- and maybe this would be only at the time he

got out of prison at that time or the month-and-a-half

period, whatever it was, he lived near your house -A.

Right.

-- did you get to see him with other people?

Yes.

Q. Did he do anything abnormal with respect to

those other people?

I don’t know what you mean by “abnormal.”

Q. Did he appear to you to get along with the

people you saw him with?

A. I know he scared some people he came in contact with. They thought he was very quiet, very reserved, so they were frightened of him.

James talked to you. Right?

Yes, he did.

Talked to your husband?

Yes, he did.

You had no problems?

A. He’s polite, and courteous, but he’s not -- it’s

not an emotional, outward, friendliness like “Hi, how

you doing” kind of person. His personality is not like

that.

see?

Was he ignorant to other people that you could

No. No.

Was he disrespectful?

No, he could never be disrespectful.

You had the party for your husband, Louis --

Yes.

Q. -- on his birthday. And is it correct James participated in the festivities that day?

Yes, he did.

Q. Did James talk to you or your husband or to

anyone else that was present?

A. He mainly was with Michael and two, young,

teenage girls that live right next door.

Q. Did it appear he was socializing with two,

young, teenage girls?

They seemed to get along just fine. Yes.

Did he get along with James Sr., your brother?

Yes.

Q. Even though he may not technically be a “Senior,” did he love his children?

I believe so.

Q. How did he generally, in your opinion, treat

James, his son?

He loved his son very much.

Q. In a general sense, did he -- did he treat the

kids right?

A. He just wasn’t there, you know. I mean, when

he was there, I believe he did. I mean -Q.

Did he work in the morning?

A. Yeah, he was always gone early in the mornings.

When would he come home at night?

A. At 7:00, 8:00, 9:00, you know. He came home

all hours.

Q. And how do you know that? From what somebody has told you?

A. No, when he was living next door to me. I

mean, that’s when he came in. Now that he’s older,

he doesn’t do that, but I mean, that’s what he did

when they were young.

Q. How did he keep his residence? I think you

mentioned he lived in a trailer next door to your

house in January of ‘91.

Uh-huh.

How was it kept?

Who? What are you talking about?

The trailer, where James, your nephew --

It was a camper.

How was it kept?

A. As far as I know, it was clean. He kept it neat.

He was very neat. He, himself, was.

Q. You stated, and I made the comment on my

notes, that “they ran away constantly.” Were you referring to all of the children or some of the children?

All of them at one time or another did.

Where would they run to?

A. Well, we lived on a canal and they would

mainly take off down the canal and hide down – they

had big Cottonwood trees that ran along the sides of

the canal where the gates were and the overpass.

They’d go down and hide in those trees.

Q. How long would they be gone? Would you

characterize this as a runaway? Did they go to New

York City, Houston, Tucson or down the canal?

A. Michael was gone a week. James – as soon as

it got dark, you know, you could find James.

He’d come home?

Yes. And Michael ran once.

Where did Michael run to?

A. California. They picked him up walking down

the side of the freeway.

Because Bobbie lived in California at the time?

Yes, and he was trying to get to her.

MR. STALZER: One second, your Honor, please.

I don’t have anything else, your Honor. Thank you.

THE COURT: Mr. Allen?

MR. ALLEN: Thank you, Judge

REDIRECT EXAMINATION

BY MR. ALLEN:

Q. You testified you only witnessed one beating of

James, but James and the other three children told

you about the beatings. Right?

Yes.

Q. And you could observe the results of the beatings?

Yes.

There is no doubt in your mind?

None.

Q. We talked about the cleaning. Cleaning of the

house wasn’t the only duty they had. Correct?

Correct.

They had chores to do?

Yes, they did.

There was farm animals there?

Yes, there were.

And --

A garden.

Q. Did the boys have to do one thing and the girls

have to do another?

A. Sometimes. Sometimes you’d see them all doing the same thing. Like the laundry, they were too

short to reach the clothesline, so I used to see them

reaching up and throwing the clothes over the line,

They were all doing that. They had to get these

chores finished outside the home before they were

allowed to go to school.

Q. And when we’re talking about them washing

clothes, and you mentioned they were throwing

things over the clothesline, we’re talking about five

100

years old, six years old, seven-year-old children doing

the wash; is that correct?

Right.

Q. That’s the type of job they were doing as five,

six, and seven-year-olds?

Exactly.

Q. And preparing food. When you talked about

that, that wasn’t really for the father; that was for

themselves. Correct?

The whole family.

Okay.

A. They were required to set the table, fix the

meals, do the dishes afterwards, and they had to

clean up any cooking that was done -MR. STALZER: I’m going to object to the nature.

If it’s some Redirect on my Cross, fine, but I hear just

repetition of the counsel’s Direct Examination.

THE COURT: Objection overruled.

Q. BY MR. ALLEN: The question I was getting

at, you testified the father didn’t come home till 8:00,

9:00, 10:00 o’clock at night?

Right. Right. Right.

Q. Mr. Stalzer’s asking about your testimony in

regard to them running away.

Right.

Q. They were running away to their mother,

mainly?

They were trying to get to Bobbie. Yes.

Q. So they just weren’t going away from the home

to hide; they were actually --

101

A. Bobbie moved around a lot during those years,

too, herself; California, back to Arizona, different

places in Arizona. So when they ran, they would try

to go in the direction they last knew she would be in.

So I mean, yeah, they did. Like I said, they were little, so I don’t know how much they knew about directions or anything at that time.

Q. And eventually, all of the children did go back

to live with their natural mother?

Yes, they did.

Q. Mr. Stalzer was talking about James at this

party recently. Would you describe James as being a

loaner type of a person?

A. He’s not real forward and not real outgoing. I

don’t know if you call that a loaner, but he’s not a big

talker. And he’s kind of quiet, and he listens intently, but I don’t think, you know, he’s like boisterous or

anything. No, I don’t know if I’d call that a loaner.

MR. ALLEN: Your Honor, may I have a second?

Your Honor, could I approach for a second?

THE COURT: You may.

(An off-the-record discussion was held at the Bench

between Court and counsel, out of the hearing of the

court reporter and jury.)

Q. BY MR. ALLEN: Susan, there’s one thing I

forgot to ask you in my Direct testimony. It was an

incident -- do you remember an incident that you observed James not going to school while the rest of the

children were going to school during -A. They were all in school at the time, and my

mom had noticed that for three days in a row, James

was sitting on the porch in front of the house. And

102

like I said, our house faced theirs. Theirs faced the

street, but our house faced theirs. So when my mom

would do dishes or anything, she could see what was

going on at that house. And James was sitting out

on the porch, and the other kids were getting on the

school bus every morning and going to school. So on

the third morning, my mother wanted that I go over

and ask him why he was staying home and why he

wasn’t going to school. He said it was because he

didn’t have tennis shoes, and Shirley told him he

couldn’t go to school until Bobbie bought him a pair.

Bobbie is his mother?

A. Right; until Bobbie bought him a pair of shoes.

That was because she didn’t pay any child support.

And so my mother got kind of upset about it and

made me take her to the bank and get money out and

go down and buy him a pair of shoes. And so Friday

of that week, he got to go to school because we

bought him a new pair of shoes.

MR. ALLEN: I have nothing further, your Honor.

Thank you.

THE COURT: Mr. Stalzer?

MR. STALZER: Thank you.

RECROSS-EXAMINATION

BY MR. STALZER:

Q. On the last question, Ms. Sesate, why did

Shirley make him wear tennis shoes, if you know?

I have no idea.

Do you know if it was --

A. He had a pair, but the bottoms were worn on

them and she didn’t like it.

103

Q. Do you know if James verbalized that he, himself, wanted a new pair of tennis shoes?

No, that’s not what he said to me.

MR. STALZER: Thank you, Judge. I don’t have

anything else.

THE COURT: Mr. Allen?

MR. ALLEN: Thank you, your Honor. I don’t have

anything.

THE COURT: Ms. Sesate, thank you. You may

step down.

MR. ALLEN: Your Honor, defense would call Dr.

Mickey McMahon to the stand.

MICKEY MCMAHON, PhD,

called as a witness herein, after having been duly

sworn, was examined and testified as follows:

THE COURT:

Good afternoon.

Doctor, if you’ll just have a seat.

MR. GONZALEZ: Excuse me, your Honor, before

we start, could I be excused for a minute?

THE COURT: Sure. Mr. Gonzalez, would you like

the examination to wait for a moment?

MR. GONZALEZ: No.

DIRECT EXAMINATION

BY MR. ALLEN:

Q. Could you please state your name for the record, please.

Mickey McMahon.

And you’re a PhD. Correct?

Yes, PhD; Clinical psychologist.

104

Q. All right. And can you go over for the Court

your credentials and where you went to school.

A. I have a Doctorate in Clinical Psychology from

Arizona State University. Also, a Masters in Clinical

Psychology from Arizona State University; a Bachelor’s schooling in Sacramento University in California; obtained my Doctorate in January of 1973; and

have been in practice for approximately 20 years.

Q. Do you belong to any professional associations

in regard to your practice?

A. Yes. I’m a member of the American Psychological Association, a member of the International

Society for the Study of Traumatic Stress, and State

Arizona Psychological Association -MR. STALZER: Judge, I’ll stipulate to the Doctor’s

credentials. I believe he’s probably testified in court

a number of times.

THE COURT: Mr. Allen, would you prefer to go

over them?

MR. ALLEN: Yes, I would, your Honor, just for the

record purposes.

Q. BY MR. ALLEN: I don’t know if you would

like to continue from what you were discussing. Associations?

I’m done with that. Yes.

Q. All right. Did you do any teaching in regard to

any of what you just referred to? Your associations or

lectures?

A. In the past, I have supervised interns in the

Doctoral program in Psychology at Good Samaritan

Hospital. Also a child guidance center, and also

Adobe Mountain School for juveniles.

105

Q. And in your practice, are you -- do you attend

seminars and continuing education in this regard?

Yes, I do.

Q. All right. You were asked to see James

McKinney by me and Alex Gonzalez in this case: is

that correct?

That’s correct.

Q. Okay. And could you tell me – I provided you

with some documentation to review for this case?

That’s correct.

Q. Could you tell me what you did as far as documents reviewed to assess Mr. McKinney?

A. I reviewed the presentence investigation by

Sandra Lewis-George dated 1/7/92, including the juvenile and adult arrest history. I reviewed educational records from May 17, 1973 to May 29th, 1980,

which was the first grade throughout the 12th grade.

I also reviewed the police homicide investigation

synopsis by Detective Neuman.

Q. Okay. And that synopsis basically discussed

the -- both homicides that Mr. McKinney was convicted of. Correct?

That’s correct.

Q. Okay. And then, you discussed these matters

with myself and Mr. Gonzalez: is that correct?

That’s correct.

Q. And then you saw Mr. McKinney, I take it, at

some point in time?

Yes, I did.

106

Q. All right. And before you saw Mr. McKinney,

did you talk to and discuss this case with any -- anyone else?

Besides yourself and Mr. Gonzalez, no.

Q. Okay. Did you -- after you saw Mr. McKinney,

did you speak with any persons involved in this case,

specifically referring to Susan Sesate and Diana

McKinney?

A. Yes, I had telephone interviews with Susan

Sesate and Diane McKinney. I had an hour telephone consultation with Susan Sesate, and half-hour

consultation with Diana McKinney.

Q. All right. And when you saw James McKinney

at the jail, did you give him any testing?

Yes, I did.

Okay. Can you go over those tests.

A. I gave him a 16-Personality Factor test, a

Clinical Analysis Questionnaire -- both of those are

part of a battery that I was familiar with in Department of Corrections when I worked at Alhambra for

seven years. I gave him the Woodkock-Johnson, Wo-o-d-k-o-c-k-Johnson, which is part of a battery that

Dr. Lewis has used in her research on death row inmates that have been sentenced to death. Also administered the Williamson’s Sense Completion Test.

I administered the Wechsler Adult Intelligence Scale

Revised.

I administered the full wide-range

achievement test, and I also spent three hours administering the Luria-Nebraska Neuropsychological

Battery, which is a very, very long comprehensive

battery.

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Q. All right. Can you discuss with the Court

what those tests showed you in regard to this case?

A. Mr. McKinney obtained a verbal IQ of 85, a

performance -- a performance in our full scale IQ, 35,

lower average range, which is on the wide-range

achievement test. He scored 11th grade reading level in pronouncing words, which is a screening test for

reading. When we go into comprehension -- what he

understands of what he reads -- we get a dramatic

drop; 11th grade down to the third month of 8th

grade. So he doesn’t process information as well as

he can read it probably. His spelling is at the beginning of the 6th grade; and the arithmetic, at the end

of the 7th grade. Spelling is at the 7th percentile, so

93 percent of the people are better spellers than he

is. Arithmetic is at the 12th percentile, so what’s

that? Eighty-eight percent of the people.

Eighty-eight percent?

A. Right; better in math than he is -- also on the

reading comprehension, the 8th-grade level’s equivalent to a person that’s 13 years old and eight months.

The results from the Luria-Nebraska were not indicative of a significant neuropsychological dysfunction; however, they are indicative of learning disabilities. The writing and arithmetic sections of that

particular test were below the cut-off point for showing some kind of impairment.

The results from the 16-Personality Factor test,

which is basically a test to look at normal personality

as opposed to psychopathology that you might get in

an MMPI or in this case, the Clinical Analysis Questionnaire, revealed a moderately introverted person

with a pessimistic outlook, takes his responsibilities

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seriously, may have some conflict with less dedicated

people.

He’s basically passive and makes less effort to

change things than most people. He focuses on details in a situation rather than the big picture. Also,

it shows him to be sober, serious, and even have a

grim outlook on life, which is -- which the research

shows is quite consistent with the kind of background history you’ve heard earlier today in this

court. He generally will take few risks. He is quite

submissive and will behave differentially towards

others, even if he is put in charge. Tends to be shy

and timid in relationships with others and acts to

minimize any anxiety and stress. He can be emotionally overwhelmed by environmental stress and

act in poorly-judged ways just to produce the internal

emotional turmoil. Probably goes back to the trauma

you’ve heard testified to earlier this morning.

He has very low ego strength, which means that he

is vulnerable again to be overwhelmed by environmental stress. There’s some research that shows

that the low ego strength has a hereditary component to it. Generally, people with this kind of low

ego strength have very little relationship with their

fathers. With this, we had testimony the father was

pretty much absent, gone while working. The early

discipline of children that have low ego strength is

typically characterized by attempts to control the

child, by evoking excessive levels of fear, excessive

punishment for mistakes, and habitual discounting

of personal ideas and feelings. It shows disinterest

in the child’s welfare and their achievements.

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The 16 P.F. also showed that there are long-term

feelings of guilt. We know that it’s one thing to feel

guilty about a particular incident; it’s another thing

to have a pervasive feeling of guilt, and pretty much

your expectation whatever happens, you’re going to

be guilty for in some kind of way. This brings about

a vulnerability of feelings of worthlessness. That can

make a person susceptible to manipulation, exploitation. If someone knows about this, they can play on

that and use that.

The results from the Clinical Analysis Questionnaire are consistent with the 16 P.F. in showing a

great deal of guilt, self-blame, self-doubt, and confusion, with some significant depression and withdrawal from people. In addition, it shows there may

be some periodic thought confusion and irrational,

unrealistic thinking that tends to result in some

poorly-judged behaviors that are more out of reflex

than they are out of appropriately reflecting and

ceasing the situation in deciding what’s the best

thing to do.

He does not present on the testing who is someone

manipulative, sensation- or thrill-seeking, and we

know often that people that get involved with violent

kinds of crime are thrill-seeking sociopaths. These

results do not look like that. It looks the opposite of

that, since these tests are pretty much consistent.

He is a loaner; depressed.

On Williamson’s, he likes solitary activities best.

When you ask him, “What’s the nicest thing that ever happened to you?” he blocks, can’t come up with

an answer. I think that’s the result of the testing.

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Okay. I asked earlier, and you said you spoke

Oh, I’m sorry. I forgot one other thing.

Okay. Go ahead.

A. The 16 C.A.Q. from the Department of Corrections has been utilized to date with 400,000 inmates

in Arizona, Colorado, and Georgia. I had taken these

test results and sent them back to Georgia to Dr.

Herb Eaber -- who is the person who is the creator of

the system -- and had it scored through their norms

back there. And on the logic and the testing, it turns

out that he is not considered to be an escape risk if

he is in prison, and he’s also not considered to be a

risk for violence within a prison setting.

Q. Okay. Now, I asked you earlier and you testified that you spoke with Diana McKinney -- that’s

his sister -- and his aunt, Susan Sesate. And you also were present for their testimony today. Can you

tell the Court from what you learned from them, how

can you relate this to James McKinney, basically discussing his background, his childhood, upbringing?

A. I think I can try to connect the examples that

were given in the court earlier with the research, literature, and my particular opinion about his diagnosis.

We now know that prolonged kind of emotional,

physical neglect and/or sexual abuse has the kind of

effect upon young children that concentration camp

survivors and political prisoners and hostages undergo. The research comes from Amnesty International, and our particular data on prisoner-of-war

people, you know, prisoner-of-war soldiers from the

United States, children are captive in the same sort

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of way that prisoner-of-wars are captive. To have

multiple traumas occur over a long period of time, a

person has to be held in a situation. They have to be

captive. We know that the isolated example of Posttraumatic Stress, such as in Viet Nam or happens in

a crime when you’re mugged or assaulted is a onetime kind of incident. A person often has a memory

of that. Abuse happens over a prolonged period of

time to a vulnerable child, is often not remembered

in great detail, but we have flashbacks of emotion,

such as a person overwhelmed with stress if they get

in a situation that is similar to the kind of situation

they were in when the trauma was first instilled.

So consequently, from my testing and from my interviews with Susan Sesate and Diana McKinney, I

diagnosed Mr. McKinney suffered from Posttraumatic Stress Disorder. The personality data

that I gave you from the testing essentially says that

he adapts to that trauma, tries to respond to it by

withdrawing, which is consistent with two of the

primary ingredients of Post-traumatic Stress. One is

flashbacks, but two is some sort of voidness, numbing, withdrawing. Substance abuse is classically associated with Post-traumatic Stress. He has a history of multiple substance abuse; generally downers,

opiates in prison, alcohol, marijuana. We don’t have

a history of amphetamine/psychostimulant kind of

abuse.

Q. What’s the significance of using -- a person using depressants as a result of having this stress or

observing events like Mr. McKinney did in his childhood?

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A. I’m not sure I understand. You mean why do

they use it or if you’d use it over a long period of

time?

all?

Why would somebody use depressants, first of

A. When you have this particular kind of affliction, you’re susceptible to -- at any moment to have

the trauma re-triggered. For example, any kind of

emotional loss, you know, will trigger Post-traumatic

Stress episodes, because when you go through the

trauma, you lose things; you lose your security; you

lose your hope for love from parents. It’s emotional

loss. So it doesn’t have to be the exact thing that

happened at the time of the trauma to re-elicit this.

So you’re vulnerable and you need to -- if you take

downers, then you’re not as alert to things that are

going on around you in your environment. It’s like

taking pain killers. The pain is not -- it may be

there, but it’s not as intense.

Q. From your interview of Mr. McKinney, did -did he tell you about the substance abuse -- his substance abuse history in relation to the presence

around other type of drugs?

A. Yes, he did. I think he started drinking

around 13 years of age. He’d actually had some beer

at 10, but around 13, he really started drinking along

with mixing marijuana with that. That pattern continued from about 13 to 22; drinking one or two cans

of beer a day, three or four beers; once every two

weeks. The pot was daily; like two joints a day. Marijuana is a relaxant. You tend to focus on internal

sensation rather than things in your environment.

He had tried PCP sprinkled on the marijuana for

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about three months; one or two times a week. He felt

like it almost killed him, so he stopped doing that after three months. He’d also got into some hallucinogens; LSD abuse. Again, that’s having you focus on

things away from your environment. Usually people

see visual illusions, colors, and things that move on

them, and that’s a distraction from the external environment. When he was in prison, he did a lot of

heroine in order to withdraw and kind of do his time.

My information is that he has only minor infractions

in a prison setting. He never lost any time, never

had any major infractions that would have cost that

time. That all is consistent with withdrawing.

Q. And is that consistent with a person having

Post-traumatic Stress Disorder?

Yes. I could give an example.

Sure.

A. The V.A. Hospital originally came up with the

Post-traumatic Stress from our Viet Nam veterans.

They weren’t getting much better, so somebody decided to go inside and re-evaluate the Post-traumatic

Stress Disorder, and well over 50 percent of the veterans in the drug abuse program had been undiagnosed.

Q. Can you tell the Court everything as we talked

about it associated with Post-traumatic Stress Disorder just with Viet-Nam veterans or war veterans?

Can you tell the Court why this is now becoming

something that’s found in -- in children more and

more of abuse, and you know why that -- to make a

simple question -- what’s the difference between a

person who was a war veteran and somebody like

James McKinney?

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A. Well, I think the war sensitizes us to the reality of Post-traumatic Stress. Also the Israelis have

studied Post-traumatic Stress quite a bit, ‘cause

they’re generally on state-of-war over there. So then

we started looking at children, and they were children who misbehaved in class; who got into trouble;

children started to use more drugs in the United

States. So having this awareness of trauma, some

people decided to look at this as a possibility. Like,

they went into the drug abuse programs in the V.A.,

and looked to see if any drug abusers had Posttraumatic Stress. And so they started to discover

these kinds of things that were happening to children.

Our country has also become more aware of abuse

in general. The DSM III-R, our diagnostic and statistical manual, lists substance abuse as an associated kind of symptom for Post-traumatic Stress. Also,

we’ve had the latest research and attempts to rewrite

the DSM III-R, which is what we call DSM III-IV;

Complex Post-traumatic Stress Disorder. This includes prolonged and multiple traumatic kind of episodes.

Q. Has there been any articles that you have

looked at that have described the symptoms of Mr.

McKinney and Post-traumatic Stress Disorder?

Yes.

Q. And could you tell the Court about those articles.

A. One particular article that I think brings it

home to this particular situation was a study that

was done in Oklahoma’s prison system in the Journal of Traumatic Stress where they look at 1100 in-

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mates, and they looked at those who had the most

violent kind of crimes -- not just murder, but aggravated assault, and armed robbery, and those kinds of

things -- then they looked at the people that had

symptoms and histories of Post-traumatic Stress

Disorder. What they found was that even if you do

not have enough symptoms to achieve the formal diagnosis of Post-traumatic Stress Disorder that the

more symptoms and history of trauma you had, the

more violent your crimes were. That would be one

particular kind of study.

The studies from Dr. Lewis, who has studied death

row inmates, has found that these particular kinds of

things go together in these people’s lives. The first is

that they have some kind of vulnerability. That generally means some kind of learning disability or some

great -- like some kind of organic dysfunction, head

injuries, things like that. Second thing that they

typically have is some history of abuse, some history

of neglect. The abuse could be emotional, physical,

sexual. And they also, thirdly, have witnessed violence in their families. They have witnessed things

being resolved by violence or other kinds of means.

That seems to fit my test for Mr. McKinney and the

testimony I heard in here today.

Q. Let me show you what I have as Exhibit 3 for

identification; the study you just spoke about. Is this

the article?

Yes; from Dr. Lewis.

Q. Would that assist in your pending -- assist the

Court in understanding what you’re speaking of today?

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A. Yes, it’s summarizing what I had said there;

and that three aspects there come out of other research that she’s done, but that essentially describes

it there. So rather than reading all this research,

you might simply make time to read that.

MR. ALLEN: Your Honor, I’d move to admit Exhibit No. 3 for identification, defense.

MR. STALZER: I don’t have any objection, Judge.

THE COURT: All right. Exhibit 3 is admitted.

Q. BY MR. ALLEN: Doctor, did you also look at

an article that was written by an attorney and a psychologist, Deana Dorman-Logan?

Yes; from 1992.

Q. Right. And that -- could you tell us what that

article was basically about.

A. The article basically discusses going from being an abused child to having killed somebody. It

talks about what is child maltreatment. It talks

about physical abuse. It talks about physical neglect. Talks about sexual abuse. Talks about witnessing family violence. It talks about psychological

maltreatment. Example: We heard today, it was like

calling somebody stupid and saying they don’t know

what they’re doing and ridiculing them. Also, isolating a child, exposing them to violence, leaving a child

unattended, which is called “spurning” in the article,

is another example of child maltreatment.

Q. In this case, in the evidence you heard today

and speaking with Mr. McKinney, of all the maltreatment that’s described in that article, was every

one present except for the sexual abuse?

Yes.

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Q. So that’s physical abuse, physical neglect, the

psychological abuse, and the witnessing of family violence?

Yes.

Q. Let me show you what I have marked as Exhibit 4 for identification.

Yes.

Q. Is that a copy of the article that I was just referring to -- or you were referring to?

Yes, it is.

Q. Would that assist the Judge in this matter to

understand what we’re talking about today?

A. Yes, I think so. It’s also a brief article, and it

goes through a number of these issues and has a

good reference section.

MR. ALLEN: Your Honor, I move to admit Defense

Exhibit No. 4.

MR. STALZER: No objection, your Honor.

THE COURT: Exhibit 4 is admitted.

Q. BY MR. ALLEN: Witnessing family violence

or violence of a human nature, is that important in

this diagnosis for Post-traumatic Stress Syndrome?

A. The child had Post-traumatic Stress that goes

with the abuse and such. You can have Posttraumatic Stress from combat in Viet Nam, and from

what we’re talking about today, in witnessing the violence. We know in research that witnessing can be

even more damaging than actually being the recipient of abuse. And although that doesn’t seem, from

common everyday kind of logic, like that would be

the case, but it is.

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And I would just mention by way of explanation

that there is a helplessness that is involved when

you’re witnessing violent and violence and you’re too

small to do anything about it. We also know that it’s

a form of coercion that’s used in concentration camps

where you have to observe your colleagues, comrades, being abused and can’t do anything about it.

So it fits the pattern.

Q. So in this particular case, from what you

heard from the witnesses and your discussion with

them of the four young children and James being a

participant in that, the violence upon his sisters and

brother would be -- is more traumatic to him possibly

than himself?

Yes.

Q. You testified earlier that the results of some of

your testing show that James would not be a thrillseeking type individual.

That’s correct.

Q. Doctor, if -- if -- going along with that, would

your diagnosis be that he be more of a person that

would be a follower than a leader? I think you testified to something similar to that.

Yes. The test results show that.

Q. And that you heard testimony -- I believe you

said that his personality testing was, quote, a loaner

type of a person?

A. Yes; in a sense that he’s withdrawing and trying to numb out.

Q. He would be more -- a person more to likely

avoid stressful situations than be part of them?

Yes.

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Q. There was testimony at trial about a prior

burglary before the homicides where James -- there

was testimony by Chris Morris that James and him

went into a house to burglarize, and there was an

older woman sleeping in a bedroom; and someone

came home and both James and this witness fled the

house, not harming anybody.

Is that consistent with your testing of James?

Yes.

Why is that?

A. Well, because you have a situation here where

there’s a big confrontation that can occur. If the person comes home in the midst of a burglary and you’re

going to stay there and persist in burglarizing this

house because you’ve got the potential for aggravated

assault or injury, who knows what’s going to happen

if a person has the -- has a gun? So by getting out of

there and running away, he is essentially withdrawing from potential kind of conflict. That was like

what he saw in his home when he was growing up.

I’ve been involved in opposite cases of murder where

a person has persistently stayed there, regardless

and not even considered the possibility of violence.

Q. Let me throw into the mix of that a fact situation; that if there was testimony that James even

had a gun, a weapon at that time period, and even

had made statements about using that weapon if anyone was in the house or came upon him, is it still

consistent with what your findings were; that he still

left that home?

A. Well, I would say that saying something is one

thing, and doing it is another. Let’s take that example and see if we make some sense with the test data

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that I have. One of the ways to avoid conflict is to -in a prison setting is to do your own time and not violate the inmate code. So you basically -- if your other

colleagues run out on you, then you need to run, too.

I think it all goes back into finding some psychological way to withdraw that might very well include

physical withdrawal, but we have to look at the situation and see what the alternatives are that the man

is faced with, because they may choose something

that looks like it’s in the behavioral withdrawal, but

it’s the best withdrawal response they could make at

the time.

Q. So given certain options that James would

have had in a situation, his testing shows his preference to be withdrawal from a stressful situation?

That’s correct.

Not going the other -- the opposite way?

That’s correct.

Q. So given an option, if he can leave and not

have a confrontation, the testing shows that would

be the case?

A. Yes. If he’s going to act in an aggressive way,

I would want to look at the situation, see if there was

some entrapment in that situation, where he was

trapped or felt he was trapped, and if he actually

tried to break out of the situation; to get away from it

in some kind of way.

Q. What about your testing showing James’ personality and this Post-traumatic Stress Disorder in

regard to statements being made about using a gun

or bragging about doing things? Is that consistent?

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A. Well, one of the ways that you can avoid conflict is to appear to be a bad character. You can appear that, like, no one wants to mess with you. And I

know that Mr. McKinney has spent some years in

juvenile and adult prisons. And I have also spent

some time there myself -- not as an inmate, but as a

staff person -- and that’s a very big -- that’s a very

real thing there.

Q. Are there doctors -- you’ve mentioned these articles before the Court today. Are there any other

doctors in your field that have come up with similar

diagnoses of Post-traumatic Stress Disorder in children and relating to violent crimes?

A. Well, let’s see. Let me review what I’ve given

you. The Oklahoma study, the study by Dr. Herman

on the Complex Post-traumatic Stress, and of course,

we have four pages of references there. There have

been a number of professionals in the field have come

up with the same diagnoses. They’ve put on workshops, seminars, they publish articles.

So you’re not alone in this field?

No, not by any means.

Q. Does a person who suffers from Post-traumatic

Stress Disorder, do they suffer from this constantly

or is this something that may rear its head under

certain situations? Do you understand the question

I’m asking?

A. I understand the question. It’s a little more

complicated. Let me amplify it as much as I can.

First of all, we could think of it as there is the potential for the trauma to be re-triggered, if things happen that are similar to what happened when you’re

originally traumatized. That’s the first part. The

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second part is that some people have lived under

such a state of trauma for so long that their level of

arousal is just much higher on a normal basis than

other people, even if they have gone through some

isolated kind of periods of trauma.

The third part is that you have to adapt to this. It’s

not “you need to adapt to”; it’s “cause you’ll get along

better in life.” Your body has to do something to reduce this stress, and when the stress gets retriggered and it’s high enough, then a lot of poorlyjudged things happen in order to reduce the stress.

Because that’s the primary kind of thing that must

be done, because the body has got to maintain some

kind of homeostatic balance. We may look at it objectively from the outside and say that was not a

very effective way to handle that situation, but we’re

overlooking that this person had to reduce that

stress in some way and that they’re in a state where

they’re not thinking very well. So oftentimes, the

first thing that comes into their mind is what they

do.

Q. Will a similar event to the original abuse, or

whatever that caused the stress to begin with, will

that trigger this in a person?

Yes.

Q. So if a person’s exposed to a similar-type situation, they can go into this; where you said they can

make poor decisions just to get out of the situation?

A. Yes, which I might elaborate on little bit. The

situation is if you received abuse at the hand of a female, then a female has a potential to re-trigger the

trauma in the future. Okay. Now, that’s balanced

off by how well you’re able to cope with it. So you

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may start to get triggered, but you have some effective coping mechanisms so the trauma doesn’t get

out of hand. So it’s not like every woman you see, all

of a sudden you’re going to be traumatized. Oftentimes -- give you an example from Viet Nam.

I was in a group years ago, and they had some artificial plants, and they moved them all over to one

side of the room to make more room for everybody,

and half of the veteran’s were freaking-out that evening and half weren’t. And as we discussed it, it

turned out that the people that were freaking-out

had served in the Mekong Delta where there was a

lot of foliage. The ones that were not freaking-out

had served up north where there were a lot of boulders and rocks. Sometimes vegetation, humidity in

the air, a particular time of day, a season, a Christmas, you’re traumatized at Christmas. So you have

the Christmas situation and all those things. Any of

those stipulated could be conditioned to re-trigger

the trauma.

Q. Now, in this particular case with James

McKinney, the -- would it be fair to say that his

stepmother was a primary abuser to cause stress in

James?

A. Yes, she’s the obvious abuser, although absent

fathers are also very damaging. But she’s the -- she

would be the most likely candidate.

Q. And you haven’t thrown in the absent father,

though, in this case?

A. We know that young boys have difficulty growing up when they have absent fathers. It doesn’t always hold true for everybody, but there’s a real vulnerability there.

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Q. Now, I asked earlier and you read the information about the homicide from Detective Neuman’s

report. Correct?

Yes.

Q. All right. And let me give you a hypothetical,

and just in relation to Mrs. Mertens’ death. That

was the woman that was found dead in this matter.

Do you remember reading about that in your reports?

Yes.

Q. Just so you’re with me, okay, assume James is

inside that home and that Mrs. Mertens, the victim,

is startled by James being in there, possibly one or

two other people and a fight ensues between them or

a fight ensues between the victim, Mrs. Mertens, and

another person. And knowing that the stepmother,

Shirley McKinney, was the abuser, the main abuser

in James’ life, could you say that would or could have

such an event occurred, it would trigger this response in James McKinney?

A. I think most certainly it triggered something.

We just have to try to look at what his coping mechanisms were at the time and whether they could

override that. There may have been some other

things going on. What kind of condition is he in personally when he gets into the situation? Has he

slept? Has he been under stress? Those kinds of

things, But I would expect that situation to trigger

something.

Q. Could such a situation as I described cause a

person in, like, James’ -- in this situation, to have

diminished capacity?

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A. Oh, yes. That’s very possible. It would be nice

to have a videotape of the situation and then, you

know, I could tell you for sure beyond a reasonable

psychological certainty, but I think we have a high

likelihood of that occurring here.

Q. And from your diagnosis and what we talked

about before is that James is more likely to avoid

stress, avoid situations, than getting involved?

Yes. That’s correct.

Q. When I -- when I asked you about the diminished capacity and someone in a situation such as

that, what do you base that on? Could you expand on

that for us a little bit -- a little bit for us?

From a psychological or from the legal --

I guess if you could tie it together.

A. All at once. Well, from a simple -- my point of

view, we’ve heard about people having flashbacks,

okay, and when they flashback, the perception is

they’re re-living something that occurred at some

other time, and so they’re not in touch with reality.

Here now it gets a little bit more complicated than

that, because you have to balance off what their

normal way of coping is; how they have adjusted to

this potential to have this re-triggered. Witnessing

violence as a child, being a recipient of violence, is a

life-threatening kind of situation for a child, because

life to them and security to them is the secure home

life. It insulates them, and the parents insulate

them from the big bad world out there.

When you get involved in a burglary kind of situation and there’s violence going on there, this is a potentially very, very dangerous kind of situation

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which is different than the one you gave me earlier

when they got out of the burglary situation. I would

expect some kind of reflexive kind of thinking, some

emotional kind of thinking rather than logical, reflective assessment of the alternatives and an intelligent discussion about what’s the best way to get out

of that. In that sense, that’s psychologically diminished capacity.

Q. Now, taking that, the part that you discussed

a while ago that you found in James McKinney -that he has a disability related to processing language information, both in auditory and verbal nature -A.

That’s correct.

Q. -- throwing that into the mix -- could you expand on that?

A. Well, again, we have -- we’re going back to

Lewis’s Triad. We have a vulnerability here and

processing information -- I think I looked back at his

educational records. His language-kind of skills

were always deficient, so that was present from a

long time back before any kind of drug abuse or any

kind of criminal activity. Then we have this situation that is psychologically pretty much identical to

the life-threatening situations he was in as a child. I

could not believe that he was processing information

in an effective way at that time, and I would expect

that whatever popped into his head or whatever kind

of adapting -- adaptive behavior he’d used in the past

would be automatically utilized at that time, without

much reflection at all.

Q. From what you heard of Diana -- from Diana

McKinney of her own experiences, is it -- is it unusu-

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al for someone who went through that experience

like her brother James to repress things and forget

about details?

A. No, that’s very common. It’s a defensive

mechanism that, again, the body needs to survive.

Q. So her not remembering all the details of what

happened wouldn’t surprise you of her early childhood years?

A. No. Those are very, very painful and disruptive to her thinking kind of processes, and I think

people -- most people have heard about it by now.

There’s so much publicity about it of people having

recovered memories of things that happened a long

time ago. Some things are not remembered at all,

but it’s also a reality that some people don’t remember things for periods of time.

Q. And that will be true of James McKinney in

discussing this time period in his life?

Yes.

Q. He’s been repressing things or wouldn’t remember or tell you everything about it, even if they

remembered?

A. The strategy is to focus on something else and

simplify things and get away from the subject.

Q. So they may not even tell you everything they

really know about what happened? Is that common?

A. We have to look at that from the point of view

of whether a person at a moment in time has access

to that memory. We can’t think of it as, “Well, they

have access to it, but they’re deliberately-not telling

us.” It’s an automatic kind of process that takes place

beyond conscious awareness.

128

Q. And it -- abuse of -- physical type of abuse, I

think, would be something that everybody would relate to as a traumatic experience. But what about

neglect and things of this nature? Of living in conditions and going to school in conditions that these

children were going through? Is that traumatic as a

physical abuse?

A. Yes, because if we go back to the -- it’s not really an analogy where I discussed earlier about lifethreatening events for a child. A child can feel as if

they’re -- they could lose their life quickly if there’s

not safety, if there’s not food, if someone isn’t there to

kiss the ow-ie and make it go away. Those seem

kind of simple things to us as adults, but they’re

very, very big for children. Children’s brain, their

cognitive analytical brain, does not develop as fast as

their emotional brain, so when these things happen

as children, they think about these from the emotional point of view; not from an objective point of

view as we do. Now -- and from that emotional point

of view, you could be losing your life real quick and

that’s what creates all the trauma.

Q. And would the same thing be true for psychological maltreatment or the verbal abuse that was

testified to along with the physical and the neglect?

Again, is that -- none of these are stronger than the

others. Is that a fair statement?

A. Yes. The emotional abuse is best explained

by, you don’t know who you are when you start out in

this life, and people start telling you who you are. If

people are saying that you are stupid, that you’re

nothing, that you don’t count, that’s like taking your

life away.

129

MR. GONZALEZ: Could we have a minute, your

Honor?

THE COURT: All right.

Q. BY MR. ALLEN: Doctor, again, you went

through the police reports, and I’m going to give you

another hypothetical, that it goes with the evidence

in regard to Mr. McClain; the fact of him being

asleep; and shot, basically, while sleeping; and then

a burglary taking place.

In your assessment of James McKinney and what

we’ve talked about this afternoon, and someone

avoiding stress and taking the option of running

away or something like that, does that type of conduct show that’s something that James McKinney

would do in a situation like that?

A. Are you referring to going back into the bedroom and shooting someone who’s asleep?

Q. Right. And then burglarizing a home or doing

that first off in regard to thrill-seeking and what you

testified to earlier.

A. That would be the exact opposite of what I

would expect from Mr. McKinney.

Q. Could you expand on why in relation to what

we talked about earlier?

A. Well, going in and just cold-bloodedly shooting

somebody can be a rush, a high for thrill-seeking,

sensation-seeking sociopaths, just as a serial killer

can get almost like an addiction to killing. There is a

high that’s associated with that. We also know that

among sex offenders, there’s a difference between the

ones that are a power thrust, kind of take control of

things, and getting enjoyment out of intimidating

130

and dominating people. Mr. McKinney’s tests results, in the more than eight hours I spent with him,

did not indicate that he was that thrill-seeking kind

of, execution-kind of person. He’d rather withdraw

from the situation.

Q. And you just said you spent eight hours with

him doing not only these tests, which were -- I don’t

know even how many -- five or six tests that you did,

and you also spoke with James for a period of time?

Yes. I did.

Q. Okay. So it wasn’t just a matter of filling out

these test forms that you concluded your opinion on.

Correct?

A. Oh, no. I gathered a history from him of this

abuse and I corroborated that with two other people;

with Susan Sesate and Diane McKinney. And I

didn’t really find any areas there where there were

inconsistencies.

Q. You spoke with Susan and Diana after speaking with James. Correct?

Yes, I did. Right. That’s correct.

Q. Right: So you first got that information from

James, and they basically backed that up and went

into greater detail?

A. Particularly Susan Sesate. This was very difficult for Diana McKinney, I think, to go through at

such a young age. And again. I would not expect her

to remember all that detail.

Q. Dr. McMahon, after doing all this testing and

observing James and actually observing the testimony today, do you have any doubts about your diagno-

131

sis of James McKinney having Post-traumatic Stress

Disorder?

No. None.

MR. ALLEN: I have nothing further, Judge.

THE COURT: Dr. McMahon, can you be back here

on Monday?

THE WITNESS: What time? The afternoon?

THE COURT: One o’clock.

THE WITNESS: Yes.

THE COURT: Counsel, until 1:00 o’clock on Monday then, we’ll stand in recess.

(Court adjourns at 5:01 p.m.)

* * * * *

132

CERTIFICATE

I, SUSAN D. WENTLEJEWSKI, do hereby certify

that the proceedings had upon the hearing of the

foregoing cause are contained fully and accurately in

the shorthand record made by me thereof, and that

such shorthand was reduced to writing under my direction and the foregoing 149 typewritten pages of

said transcript contain a full, true and correct transcript of my shorthand notes taken by me as aforesaid, all to the best of my skill and ability.

DATED, this 10th day of September, 1993, at Tempe, Arizona.

My Commission Expires December 30, 1995

/s/ Susan D. Wentlejewski

Susan D. Wentlejewski, RPR

Certified Court Reporter

133

IN THE SUPERIOR COURT

OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

_________

STATE OF ARIZONA,

Plaintiff,

vs.

JAMES ERIN MCKINNEY,

Defendant.

_________

SC No. CR-93-0362-AP

_________

No. CR 91-90926 (B)

_________

July 19, 1993

Mesa, Arizona

_________

BEFORE: The Honorable STEVEN D. SHELDON, Judge

REPORTER’S TRANSCRIPT OF PROCEEDINGS

SENTENCING HEARING

134

APPEARANCES:

FOR THE PLAINTIFF:

Louis Stalzer, Deputy County Attorney

FOR THE DEFENDANT McKINNEY:

Scott F. Allen, Court-Appointed Counsel

Alex Gonzalez, Court-Appointed Counsel

Penny Heins, RP-CM

Superior Court Reporter

INDEX

WITNESS:

EXAMINATION

BY:

ON PAGE:

MICKEY McMAHON, Ph.D.

Mr. Allen

Mr. Stalzer

Mr. Allen

The Court

Mr. Gonzalez

Mr. Stalzer

The Court

124

133

138

Mr. Stalzer

Mr. Gonzalez

Mr. Stalzer

119

STEVEN GRAY,

Ed. D.

135

EXHIBITS:

NUMBER:

DESCRIPTION:

RECEIVED

ON PAGE:

Resume of Dr. Mickey

McMahon

Article re: Death Row

Inmates

132

Article

PTSD

132

re:

Complex

PROCEEDINGS

[Transcript in full, pp. 3-146]

(The following proceedings are held in open court.)

THE COURT: We’re back on the record in the sentencing in State of Arizona versus James McKinney.

And Dr. McMahon is on the stand still under oath.

Mr. Allen, did you have any additional questions at

this time?

MR. ALLEN: Just a couple, your Honor, that I forgot to discuss with Dr. McMahon.

MICKEY McMAHON, Ph.D.,

re-called as a witness herein, having been previously

duly sworn, is examined and testifies further as follows:

136

EXAMINATION

BY MR. ALLEN:

Q Doctor, did you prepare a resume for the Court

to put down your credentials?

Yes, I did.

Q I’m going to show you what’s marked Defense

Exhibit for identification Number 5. Do you recognize that?

Yes.

Is that the resume?

Yes, it is.

Q Do you think it would help assist the Court in

going over your accomplishments and your work in

the area that we discussed on Friday?

Yes.

MR. ALLEN: Your Honor, I move into evidence

Defense Exhibit Number 5.

MR. STALZER: No objection, Judge.

THE COURT: All right. Exhibit 5 is admitted.

Q BY MR. ALLEN: Doctor, also you prepared a

report on your findings in this matter, correct?

That’s correct.

Q And I think we talked briefly about this on

Friday. In your report you -- it was your opinion that

if the defendant was placed in a prison setting for a

long period of time, that it was your opinion of the

scores and your analysis of the defendant that he

would not be a risk; is that correct?

A risk for violence or escape?

Yes. Both.

137

Yes.

Q And could you elaborate your findings in making this assessment?

The previous testimony I gave about his tendency to withdraw under stress, his -- the option of

which you would expect in someone who was going to

be chronically violent; the data that I had previously

discussed about the testing, where we utilized the

norms from 400,000 inmates across the country,

without any input on my part, kicked out that he

scored like someone who would not be an escape risk

or a risk for violence.

Q Previously you’ve worked a long period of time

with the Department of Corrections?

Yes.

Q And could you tell the Court what you were

doing there and how long?

I worked at the Alhambra Inception and

Treatment Center. Primarily that had two parts to

it. One was a psychiatric treatment unit licensed by

Department of Behavioral Health Services and also a

classification center that made initial classifications

in the department as to where the person would stay,

what institution around the state, and what security

level they would stay in that institution.

Q In your overall analysis of Mr. McKinney,

what would you assess his chances for rehabilitation

if he was placed in the prison setting?

Assuming that he has a long term in the Department of Corrections, that would be advantageous

as far as addressing the long term trauma he’s had

and some of the maladaptive habits that he’s devel-

138

oped as a way of coping with that, the burglaries and

so forth, the drug abuse, those kinds of things. Department of Corrections would be the treatment of

choice for him as opposed to an outpatient kind of

setting when he comes in and sees someone once a

week.

In the Department of Corrections you can manipulate the environment, the living setting, the rules in

which they live under. And it’s just much, much

more structured and regimented than life in the

community. And to successfully deal with some of

his problems, that would be an essential ingredient.

MR. ALLEN: I have nothing further, Judge.

THE COURT: Mr. Stalzer?

MR. STALZER: Thank you, Judge.

EXAMINATION

BY MR. STALZER:

Good afternoon, Doctor.

Good afternoon.

Q Dr. McMahon, you stated, I think, to some degree at length last Friday that you performed a

number of what I’ll call tests. Now, I say that in the

generic sense to encompass any kind of standardized

procedure for assessing or evaluating a person from a

different number of avenues. Did -- strike that. In

this case I think you said you gave Mr. McKinney an

intelligence test?

That’s correct.

Q Could you briefly describe for the Court what

is meant by an intelligence test? The function?

139

Depending upon the intelligence test that you

give, it has different functions. The one I gave is the

most comprehensive and respected intelligence test

that we give. It not only gives you three different

IQ’s, one in the verbal area, one in the performance

or nonverbal area, and then an overall IQ, it also

goes through eleven cognitive tasks, each one of

which requires different cognitive skills to complete

successfully. So that allows you to look at specific

cognitive deficits a person might have even though

their overall IQ appears to be average or slightly below average.

Q As well as it would give you an indication of

cognitive assets?

Yes, it would.

Q Did you administer an aptitude test in this

case with Mr. McKinney?

No, I didn’t.

Q I may have misspoken in the materials that I

received from defense counsel, and if I could make

specific reference to the Wide Range Achievement

Test, what is the function of the achievement test as

compared to the intelligence test?

The achievement test and the one you mention

in particular is a well-known screening test to look at

three levels of academic kind of achievement.

Q Is that -- is it fair to say it’s kind of looking at

what a person has learned?

Yes.

Q In, in this case, also, I think you spoke of the

Luria, L-u-r-i-a, Nebraska test?

Yes.

140

What is the general function of that test?

That’s our most comprehensive, wellresearched battery, which have 12 clinical tests and

multiple other factors that are involved. That was

designed to essentially test for neuropsychological

dysfunction. Neuropsychological is a form of behavior that is often indicative of brain dysfunction.

Q Also, I believe you stated you administered the

Woodcock-Johnson Reading Test.

I administered the reading comprehension

subtest from the Woodcock-Johnson to supplement

the reading pronunciation test that I had given from

the Wide Range Achievement Test since they tap two

separate skills.

Q With the Woodcock-Johnson that you administered on the subtest, is it basically to determine Mr.

McKinney’s reading level?

I gave it for two reasons. The first was to determine how well he comprehended what he read.

Q And that is something the test can tell the

person who administers the test?

Yes. It’s scored objectively, and there are

norms that will tell you what grade level the person

obtained and also the age equivalent of a person who

scored at that level.

Q Did you cover your second function or purpose

for giving this?

No. The second function has to do with a

higher order mental processing function that people

have which is different from the basic kind of input,

simple input kind of functions. For example, if

you’re reading it’s one thing to know how to pro-

141

nounce the words, it’s another thing to know what

the word means, it’s another thing to know what a

phrase means. And in that sentence you typically

may have two or three phrases, some of which will

qualify.

You can see that it gradually starts to get more

complicated. And a person that has a deficiency in

that area could have a number of impairments. He

may not be able to remember all of the phrases that

are in the sentence. If he does, he may not be able to

combine them. And even if he’s able to do that, he

may not then be able to sort through possible alternative meanings that the sentence has.

Q Now, that’s something that is specifically designed by this test to accomplish, to sort out what

you’ve just described?

The test -- it does not have a norm for that.

The norm is included within the reading comprehension score. So what psychologists typically do is see

if they get the same score when someone is doing a

simple pronunciation of a word, with the comprehension score, which is more complicated. If you get a

discrepancy, then you need to consider why you got a

discrepancy. And that’s, that’s at the point where

you get involved in the second reason that I gave him

that test.

Q But I guess if you could give a yes or no answer, because I’m a little bit confused. As to your

second purpose, to address that purpose, is that

Woodcock-Johnson designed to specifically confront

that particular little issue that you want to investigate?

142

Yes, it’s one of a number of tests that will do

that. It’s not the only one. It’s not the most sophisticated. But it does tap that, yes.

What type of test is the 16PF?

The Sixteen Personality Factor Test, as I testified to earlier, is a test that attempts to look at basic

normal kind of personality as opposed to mental illness, psychopathology, those kinds of issues.

Q Is it a fair statement to say that it kind of develops some general personality or character traits of

an individual?

It looks at various dimensions of a person’s

personality. I’m using dimension rather than characteristics because I want to make sure it’s clear that

this test was researched statistically so that these

particular 16 dimensions were not something that

psychologists just dreamed up. They gave a great

number of people this test. And they statistically

then analyzed the test. And they found out that people in general will come up with 16 separate kinds of

personality characteristics. And each one of those

can be on one side or the other.

For example, there is the sober/serious aspect of

the dimension, which I testified to earlier that Mr.

McKinney has, the opposite of that is a happy-golucky, excited kind of personality characteristic. So

each dimension has two extremes.

Q Much like if we said someone was introverted

and another person might be extroverted?

Yes.

What is the CAQ?

143

The Clinical Analysis Questionnaire is a test

designed to look at psychopathology. Again, it is factor analyzed.

What do you mean by that?

Well, that was what I explained earlier, that

you give a lot of people the test, and then I statistically look and see in reality how many separate

kinds of characteristics do people have on this test,

as opposed to someone saying well, I think they

ought to have this and they ought to have that.

Is it related somewhat then to the 16PF?

The questions are different. One deals with

more normal personality; the other deals with the

psychopathology. The statistical process of constructing those tests is identical.

And I had one other thing to mention about the

CAQ, if I might.

Go ahead.

It is sometimes used as a substitute for the

MMPI, the Minnesota Multiphasic Personality Inventory, which is well known in court settings. The

16PF has many, many more questions that -- the

construction of the test was not factor analyzed initially. It was more constructed upon the lines of clinicians saying that we think there is such a thing of

sociopathic schizophrenia. There is deviancy depression and so forth and so on.

The items, the test questions on the MMPI are

much more blatantly bizarre than the ones on the

CAQ, which is important because a CAQ will get at -will avoid people that are trying to make themselves

look bad being able to easily do so because the items

144

are more subtle on the CAQ. It’s not as easy to figure out how to answer it.

Q Well, while you’re on -- you brought up the

topic of the MMPI. Do you prefer one over the other?

It depends upon the situation. When I’m involved in a situation where there is a history of major mental illness such as schizophrenia, such as

manic depression, bipolar, those kinds of things, then

I’m more apt to do that. I’m also more apt to use it in

a situation where I’m not looking at how a person

may adjust to a prison setting, because the research

is better on the CAQ than it is on the MMPI as far as

adjusting to a prison situation.

Q With respect to an intelligence test score by itself, is there any correlation between one’s score and

the mental illness of PTSD?

The -- if you have a lower score and you have

particular cognitive deficits, it makes you more vulnerable to the same amount of trauma that, of

course, creates the PTSD.

Q In general, is there any correlation between

one’s aptitude -- achievement test score, rather, excuse me, and a correlation with PTSD?

Again, if someone has a poor academic

achievement level, school is not a relaxing experience

for them. It’s not one that is increasing their self esteem. It’s something that they would like to avoid.

But mandatory attendance requires that they stay

there in that se

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