Appendix — Burks v. United States
Supreme Court brief1978
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Supreme Court, U. S,
ime FiLE OD wl.
AUG 10 1977
MICHEL RODAK, JR, CLERK |
In the Supreme Court of the Gnited States.
Octoper Term, 1977
No. 76-6528
Daviy Wayne Burks, PETITIONER
V.
Unrtep States or AMERICA, RESPONDENT
ON WRIT OF Ci rARI TO THE UNITED STATES
COURT OF A! oS FOR THE SIXTH CIRCUIT
PETITION FOR CERTIORARI FILED APRIL 11, 1977
CERTIORARI GRANTED JUNE 13, 1977
Page
Relevant Docket Entries ....... 6000s e secre eer ereeeeneees A.2
Indictment, November 19, 1975 ......-.ceeeeeeeeereeeerees AA
Plea of Not Guilty and Order, December 2, BOTS wn ccccscces A6
Order for Psychiatric Examination, December 9, 1975 ...... AT
Government’s Request for Reciprocal Disclosure, January 30,
TE . . . cbentacegssecesseneneessebecsesseaguestee A8
Renewal of Government’s Request for Reciprocal Disclosure,
February 12, 1976 ........cceeer eee ee rere ee eeeereeees AS
Affidavit in Support of Renewal of Government's Request for
Reciprocal Disclosure, February Ae | A.10
Note received by Court from Jury, February 19, 1976 ...... A.12
Judgment and Commitment Order; Plea of Not Guilty,
February 25, 1976 ..... Ee cnecocsecedacsesédeueeees A.13
Motion for New Trial, March 3, 1976 ......-.:eeeereeeeees A.15
Notice of Appeal, March 3, 1976 ......6.eeseeereeeeeeeees AAT
Order denying defendant’s Motion for New Trial, March 12,
BOD... ccccccceedcncbecccvcsscosccscucsoccsesececees A.18
EXCERPTS FROM TRANSCRIPT OF PROCEEDINGS
April 16, 1976
Testimony of Wilma Jeane Riling—
Direct Examination .........600eeeeeee eee reeeeees A.21
Testimony of Ernest Staggs—
Direct Examination .........::0sseeeeeeeeeeeeeees A.24
Testimony of L. D. Hutt—
Excerpts from Direct Examination
(pp. 192-225, 229-231, 235-241, 244.254, 258-259 of
original transcript) .....6.0see seer reer seen eeeeees A3l
Excerpts from Cross Examination
(pp. 264-271, 286-287, 290-302 of original transcript) .. A.63
Testimony of Landrum Tucker
Excerpts from Direct Examination
(pp. 304, 306-327, 330-338, 341-342, 352, 354-355 of
original transcript) ......++-eeeeereeree eee eeesees A.76
Excerpts from Cross Examination
(pp. 355-362 of original transcript) .........eeeeees A.96
Testimony of Kenneth J. Munden
Excerpts from Direct Examination
(pp. 367, 369-372 of original transcript) ... 66.6666 A101
Excerpts from Cross Examination
(pp. 373-378 of original transcript) ........66eeeeee A.104
ii
Testimony of Richard J. Farrer
Excerpts from Direct Examination Rebuttal
(pp. 387, 390-406 of original transcript) ......60eees A.107
Excerpts from Cross Examination
(pp. 410-416, 420-421, 427-429 of original transeript).. A.116
Exeorpts from Redirect Examination
(pp. 431-434 of original transcript) .....6e cee eeeeee A.122
Testimony of Denton Buchanan
Excerpts from Direct Examination Rebuttal
(pp. 463, 481-483, 486-490, 493-498 of original trans-
ePipt) ..scrcccccccvccccnccveuccovcesvaccesovereess A.124
Cross Examination
(pp. 499-516 of original transcript) .. 0.66. cece e eens A.132
Excerpts from Redirect Examination
(pp. 517-520 of original transeript) .....-+seeeeeees A.143
Oral Motion for judgment of acquittal made at conclusion of
all proof (p. 522 of original transeript) .....66++eerree: A.145
Charge to Jury
(Excerpts, pp. 574-585, 587-590 of original transcript) .... A.145
Opinion of Sixth Cireuit Court of Appeals, December 30,
ee ts cgeneneconecsen cdeshacbanscage rhseerestnss A.155
Order of the Sixth Circuit Court of Appeals denying petition
for rehearing filed by the defendant-appellant, February
© GE cdcconcecsdhanccesesscduecsenced>ssenscsesss: A.159
Order of the Sixth Cireuit Court of Appeals denying petition
for rehearing filed by the plaintiff-appellee, February 8,
SOUT. cccccceccecsesegtescaccersesedecsccecsenesees A.160
Order of the Supreme Court of the United States granting
motion for leave to proceed in forma pauperis and granting
petition for writ of COTtIOTATL ... 6c ee cee eee rere eee eeeeee A.161
In the Supreme Court of the Anited States
Ocropen Term, 1977
No. 76-6528
Daviy Wayne BuRKS, PETITIONER
v.
Unirep Sratres or AMERICA, RESPONDENT
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
(1)
Iw roe Unitrep States District Court
Mripp.e Districr or TENNESSEE
NasuVvILue Division
Unrrep States oF AMERICA
v. No. 75-246-NA-CR
Davin Wayne Burks
1975
Nov. 19
Dee, 2
Dec. 9
1976
Jan. 30
Feb. 12
Feb, 12
Feb. 19
Feb. 25
RELEVANT DOCKET ENTRIES
Indictment filed. BOD Papers included in file.
December 1, 1975. Entered. Defendant plea of
not guilty. Ordered defendant allowed ten days
from this date time within which to file pre-trial
motions. Ordered case reset for trial January
15, 1976. Copy to USA. USP. USM. defendant
and Attorney Durham.
Order for Psychiatrie Examination entered.
Defendant to report to Dr. Farrer December 8,
1975 at 3:00 p.m. Ordered report be made to
this Court, with copies to the U.S.A. and Attor-
ney Durham. Att. copy USA. USP. USM. de-
fendant and Attorney Durham and Dr, Farrer.
Filed: Government's request for reciprocal dis-
closure by AUSA Windsor, C/S
Renewal of Government's Request for Recipro-
cal Disclosure filed by AUSA Windsor. C/S
Affidavit ‘in Support of Renewal of Govern-
ment’s Request for Reciprocal Disclosure filed
by AUSA Windsor.
Filed: Note received by Court from jury as
follows: ‘‘The law that constitutes mental ill-
ness that Judge Gray read to us.’’
Judgment and Commitment Order of 2/25/76
entered. Plea of not guilty; verdict guilty; im-
prisonment 20 years; sentence imposed under
18:4208(a)(2), under which defendant may be-
come eligible for parole at such time as Board
of Parole may determine. 1 Certified copy to
A.2
March
March 3
March 12
Apr. 16
Dee. 30
1977
Feb. 8
Feb. 8
A.3
USA, USP, Attorneys Durham and Moon and
defendant; 2 certified copies to USM, 2/25/76.
Motion for New Trial filed by Thomas W. Moon
for defendant. C/S
Notice of Appeal filed by Attorney Moon on
behalf of defendant. C/S
Order entered: Defendant’s Motion for New
Trial DENIED. Copies USA, USM, USP, De-
fendant and Attorney Durham 3/15/76.
Excerpts from official transcript of proceedings
on February 17-19, 1976.
Opinion of the Sixth Cireuit Court of Appeals.
Order of the Sixth Cireuit Court of Appeals
denying petition for rehearing filed by the de-
fendant-appellant.
Order of the Sixth Cireuit Court of Appeals
denying petition for rehearing filed by the plain-
tiff-appellee.
Unirep States District Court
ror THE Mippie District or TENNESSEE
NasuviLLe Division
{Title omitted in printing]
Filed November 19, 1975.
Frank E. Williams
Clerk
by Sherry Williams
Deputy Clerk
INDICTMENT
COUNT ONE
The Grand Jury charges:
On or about October 23, 1975, in the Middle District of
Tennessee, DAVID WAYNE BURKS did by foree and
violence and intimidation take from the person and pres-
ence of employees money belonging to and in the care,
custody, control, management and possession of the Com-
merce Union Bank, Nolensville Road Branch, Nashville,
Tennessee, the deposits of which were then insured by the
Federal Deposit Insurance Corporation, and in committing
this offense, the aforesaid DAVID WAYNE BURKS, did
assault the said employees of the said Commerce Union
Bank, and did put in jeopardy the lives of said employees
by the use of a dangerous weapon.
In violation of Title 18, United States Code, Section
2113(d).
COUNT TWO
The Grand Jury further charges:
On or about October 23, 1975, in the Middle District of
Tennessee, DAVID WAYNE BURKS, in committing the
offense charged in Count One of this indictment and in
avoiding and attempting to avoid apprehension, forced
Ernest Staggs to accompany him without the consent of the
aforesaid Ernest Staggs.
AA
Ad
In violation of Title 18, United States Code, Section
2113(e).
A TRUE BILL:
/s/ Robert P. Alvisder
Rosert P. ALVIsvpER
Foreman
/s/ Joe B. Brown
Jor B. Brown
Acting United States Attorney
Unrtep States District Court
FOR THE MippLe District or TENNESSEE
NASHVILLE Drvision
[Title omitted in printing]
Frank E. Williams
Clerk
by Sherry Williams
Deputy Clerk
Came the Assistant United States Attorney and also came
the defendant David Wayne Burks, in person, and by his
attorney Bart Durham III, and upon being solemnly ar-
raigned upon an indictment charging in one count violation
of 18 U.S.C. §§ 2113(d) and 2113(e), said defendant pleaded
not guilty by reason of insanity to the one-count indictment.
It is ORDERED that the defendant herein be allowed ten
(10) days from this date time within which to file pretrial
motions.
It is further ORDERED that this case be reset for trial
at 9:00 A.M., Thursday, January 15, 1976, in Umied States
District Courtroom Annex-1, United States Court House,
801 Broadway, Nashville, Tennessee.
ENTER:
/s/ Frank Gray, Jr.
Frank Gray, JR.
Chief Judge
{Approved by counsel]
A.6
Unitep States District Court
FOR THE Mippie District oF TENNESSEE
NASHVILLE Division
[Title omitted in printing]
Frank E. Williams
Clerk
by Sherry Williams
Deputy Clerk
ORDER FOR PSYCHIATRIC EXAMINATION
Upon motion of the United States of America for psychi-
atric examination of the defendant ;
It is hereby ORDERED pursuant to Title 18, United
States Code, Section 4244, and the inherent powers of this
Court, that the defendant be examined by a qualified psy-
chiatrist at the expense of the United States in order to
determine his present medical condition as to his ability to
understand the proceedings against him and to assist his
attorney in his own defense, and further to determine (1)
whether the defendant was suffering from mental illness at
the time of the alleged commission of the crime; (2) whether
that illness was such as to prevent his knowing the wrong-
fulness of his act; (3) whether the mental illness was such
as to render him substantially incapable of conforming his
conduct to the requirements of the law he is charged with
violating.
It is further ORDERED that the defendant shall report
to the office of Dr. R. James Farrer, 1 Park Plaza, Nash-
ville, Tennessee, at 3:00 p.m., Monday, December 8, 1975,
and at such other times as Dr. Farrer shall designate for the
purpose of examination. Failure by the defendant to so
appear will be considered by the Court as a violation of the
conditions of the defendant’s bond.
It is further ORDERED that such psychiatric report be
made to this Court, with copies te the United States Attor-
ney and Bart Durham, Esq., 1104 Parkway Towers, Nash-
ville, Tennessee, attorney for the defendant.
ENTER:
/s/ L. Clure Morton
L. Cuure Morton
Judge
[Approved by counsel }
A.7
Unirep States District Court
FoR THE Mippie District or TENNESSEE
NASHVILLE Division
(Title omitted in printing]
Filed January 30, 1976
GOVERNMENT’S REQUEST FOR RECIPROCAL
DISCLOSURE
The Court having ordered the defendant examined by a
qualified psychiatrist upon the motion of and at the expense
of the United States, and having further ordered a copy of
the resulting psychiatric report disclosed to defense counsel
in the cause, and defense counsel having requested said
psychiatric report, the United States Attorney requests dis-
closure of evidence by the defendant pursuant to Rule
16(b)(1)(B) of the Federal Rules of Criminal Procedure,
and permission to inspect or photograph any results or
reports of physical or mental examinations or tests admin-
‘stered to the defendant in connection with the cause and
within the possession or control of the defendant.
Cares H. ANDERSON
United States Attorney for the
Middle District of Tennessee
/s/ Richard L. Windsor
Ricuarp L. Wrnpsor
Assistant U.S. Attorney
879 U.S. Courthouse
P.O. Box 800
Nashville, Tennessee 37202
Telephone: (615) 749-5151
{Certificate of Service omitted |
a 2 sai
“TAS Sate
Unirep States District Court
ror THE MippLe District OF TEN NESSEE
NasHVILLE Division
[Title omitted in printing]
Filed February 12, 1976
RENEWAL OF GOVERNMENT'S REQUEST FOR
RECIPROCAL DISCLOSURE
The Court having ordered the defendant examined by a
qualified psychiatrist upon the motion of and at the expense
of the United States, and having further ordered a copy of
the resulting psychiatric report disclosed to defense counsel
in the cause, and defense counsel having requested said
psychiatric report, the United States Attorney requests dis-
closure of evidence by the defendant pursuant to Rule
16(b)(1)(B) of the Federal Rules of Criminal Procedure,
and permission to inspect or photograph any results or
reports of physical or mental examinations or tests admin-
istered to the defendant in connection with the cause and
within the possession or control of the defendant.
Crarues H. ANDERSON
United States Attorney for the
Middle District of Tennessee
/s/ Richard L. Windsor
Ricuarp L, WInDsor
Assistant U.S, Attorney
879 U.S. Courthouse
P.O. Box 800
Nashville, Tennessee 37202
Telephone : (615) 749-5151
[Certificate of Service omitted]
Unitep States Disrricr Court
FOR THE Mipp.e District or TENNESSEE
NASHVILLE Division
[Title omitted in printing]
Filed February 12, 1976
AFFIDAVIT IN SUPPORT OF RENEWAL OF
GOVERNMENT’S REQUEST FOR
RECIPROCAL DISCLOSURE
Upon the oath and affidavit of the undersigned Assistant
United States Attorney, the following facts are presented
to the Court:
1. The attorney for the defendant made a personal tele-
phonic request of the attorney for the Government, on
behalf of the defendant, for the results and reports of a
psychiatric examination of the defendant, David Burks, by
a psychiatrist and, pursuant to the Government’s motion
for the examination.
9. At the time of the telephonic request, no copy of the
requested results of reports of said examination was in the
possession or custody of the Government.
3. The attorney for the Government immediately con-
tacted the psychiatrist.
4. No report or result had then been prepared although
the examination of David Burks had been completed.
5. The attorney for the Government requested the exam-
ining psychiatrist to expeditiously prepare the result or
report in typed form and provide it to the attorney for the
defendant, and this in fact was done.
6. Furthermore, attached to this affidavit as Exhibit A
thereto is a photocopy of a letter from the attorney for the
defendant specifically requesting disclosure under Rule 16
of the Federal Rules of Criminal Procedure.
7. The attorney for the defendant has refused to comply
with the Government’s request for reciprocal disclosure
of information within the possession or control of the
defendant concerning mental or physical examinations.
/s/ Richard L. Windsor
Ricuarp L, Wrnpsor
Assistant U.S. Attorney
[Jurat Omitted]
A.10
EXHIBIT A
Moon & DurRHAM
ATTORNEYS-AT-LAW
Tom Moon Suite 1104—Parkway Towers
Bart Durham Nashville, Tennessee 37219
Telephone 615/254-5016
November 25, 1975
Received December 1, 1975
U.S. Attorney’s Office
Nashville, Tennessee
Mr. Rick Windsor
Assistant U.S. Attorney
U.S. Courthouse
- 800 Broadway
Nashville, Tn. 37203
Re: United States of America v.
David Wayne Burks,
No. 75-246-NA-CR
Dear Mr. Windsor:
I am writing to request informally from the Office of the
United States Attorney the discovery allowed under Rule 16
of the Federal Rules of Criminal Procedure.
I would like to inspect the confession made by the defend-
ant and the results of any scientific tests made in connection
with the case including pictures taken at the bank if the
government plans to use them. I would also respectfully
request those items under Rule 16b; namely, books, papers,
documents, tangible objects and other matters which are
in the possession, custody or control of the government.
These items will be material to the preparation of our
defense. If you have any question as to whether or not a
display of these would be reasonable, I would be glad to
make arrangements to view them in such a manner as to
make my request reasonable. I would also like to make
this a continuing request for disclosure under Rule 16g.
Respectfully yours,
Bari Durham
A.11
Filed February 19, 1976
Frank E. Williams
Clerk
by A. C, Beech
Deputy Clerk
Note received by court from jury
at 5:45 p.m., Feb. 19, 1976.
The law that constitutes mental illness that the Judge
Gray read to us,
A.12
Unirep States District Courr
ror THE Mippie District or Ten NESSER
NasuvILLE Division
Unrrep Srares or AMERICA V.
Daviw Wayne Burks, Defendant
Docket No. 75-246-NA-CR
JUDGMENT AND PROBATION/COMMITMENT
ORDER
In the presence of the attorney for the government the
defendant appeared in person on this date, February 25,
1976.
Counsel; With counsel, Bart Durham II and Thomas
Moon.
Plea: Not guilty.
Finding & Judgment: There being a verdict of guilty.
Defendant has been convicted as charged of the offense(s)
of violation of 18 U.S.C. § 2113(d) as charged in count one
of the two-count indictment.
(Count two of the two-count indictment was heretofore
dismissed by the Court upon motion of the Assistant United
States Attorney.)
Sentence or Probation Order: The court asked whether
defendant had anything to say why judgment should not be
pronounced. Because no sufficient cause to the contrary was
shown, or appeared to the court, the court adjudged the
defendant guilty as charged and convicted and ordered that :
The defendant be hereby commi the ciistody of the
Attorney General or his authorized representative for im-
prisonment for a period of TWENTY YE . It is
ORDERED that the Sentence be imposed under the provi-
A.13
_
—
A.14
. 6 » ® t
i of 18 U.S.C. § 4208(a) (2), under which the defendan
oan bane eligible for parole at such time as the Board of
Parole may determine.
Received for Entry
2:00 P.M.
Feb, 25, 1976
Frank EK. Williams,
Clerk
by Andrea C, Beech
Deputy Clerk
Certified as a True Copy on this date February 25, 1976.
A.C, Beech, Deputy.
/s/ Frank Gray, Jr.
Frank Gray, JR.
U.S. District Judge
Unrrep States District Court
ror THE Mrippie District or TENNESSEE
NasHviILie Division
[Title omitted in printing]
Filed March 3, 1976
Frank K. Williams
Clerk
by A. C. Beech
Deputy Clerk
MOTION FOR NEW TRIAL
The defendant, David Wayne Burks, would respectfully
PRAY for a new trial and would assign as grounds the
following errors:
1. The evidence was insufficient to support the verdict.
2. The eyewitness identification of all bank employees
should have been suppressed because of the failure of the
Government, upon notice, to affirmatively advise the lay
witnesses they had the permission of the Government to talk
to defense attorneys. The Government let stand a known
wrong.
3. Physical evidence connecting the defendant with the
crime was wrongfully introduced. The defendant told an
FBI agent he wanted to talk to a lawyer. This agent failed
to convey the defendant’s wishes to a second FBI agent who
proceeded to obtain the signature of the defendant to a
consent to search form. The first agent had a duty to advise
the second agent of the defendant’s desire to speak to an
attorney.
4. The U.S. Attorney on cross examination elicited the
fact that the defendant was released on bond in custody of
his parole or probation officer. The Court held this gave the
U.S. Attorney the right to go directly into a previous con-
viction of the defendant for an earlier bank robbery in Ohio.
5. The. U.S. Attorney prejudiced the jury by stressing on
direct and cross examination the ‘‘right-wrong’’ or “‘irre-
sistible impulse’’ test of mental disease rather than the
Smith rule of the Sixth Cireuit. (United States v. Smith,
404 F. 2d 720 (1968) ).
6. The court restricted examination of one of the chief
defense witness to 45 minutes, putting an arbitrary time
limit on the defendant, knowing that defense counsel had
A.15
A.16
given the expert witness, a psychiatrist, his word that he
would not be held overnight.
7. The Government failed to observe a reciprocal dis-
covery order and only furnished the defense the results of
test data of Dr. Buchanan on the morning of the trial. The
Government never furnished the most significant test of all,
the Minnesota Multiphasic Personality Inventory Test, and
until Dr. Buchanan had testified never furnished the under-
lying psychological tests upon which his conclusions were
based. The defendant was prejudiced because of lack of
opportunity for rebuttal.
&. The U.S, Attorney told the jury his personal opinion
on the ultimate issue in the case, insanity, when he said, in
substance, ‘‘ Who do you think is crazy, the mother or the
defendant? I know it is not the defendant.’’
9 The term ‘‘insanity’’ used in the charge without an
explanation is misleading. The charge failed to stress the
rule of this cireuit in Smith. The charge gave an inadequate
definition of a substantial inability to conform ones conduct
with the law one is accused of violating.
10. The court refused to allow the defense in closing
argument to use a visual aide which would have emphasized
the rule of the Smith case. The questions, in substance,
were:
(1) whether the defendant was suffering from mental
illness at the time of the alleged commission of the
crime; (2) whether that illness was such as to prevent
his knowing the wrongfulness of his act; (3) whether
the mental illness was such as to render him substan-
tially ineapable of conforming his conduct to the re-
quirements of the law he is charged with violating.
11. The sentence was excessive in view of all the circum-
stances and the testimony concerning the defendant.
Respectfully submitted,
MOON & DURHAM
By: /s/ Thomas W. Moon
Tromas W. Moon
1104 Parkway Towers
Nashville, Tennessee 37219
Phone : 254-5016
| Certificate of Service omitted}
—
Unrrep Sratres Distrraicr Court
ror THE MippLe District or TENNESSEE
NasuviLue Division
[Title omitted in printing]
Filed March 3, 1976
NOTICE OF APPEAL
The defendant, David Wayne Burks, hereby respectfully
files this his notice of appeal and appeals the judgment and
sentence of the Court convicting him of bank robbery in this
case to the U.S. Court of Appeals in the Sixth Cireuit.
Respectfully submitted,
MOON & DURHAM
By: /s/ Thomas W. Moon
Tuomas W. Moon
1104 Parkway Towers
Nashville, Tennessee 37219
Phone : 254-5016
[Certificate of Service omitted ]
A.l7
lw Tue Unrrep States District Court
FOR THE Mippie District or TENNESSEE
Co.tumsBia Division
[Title omitted in printing]
Frank E. Williams
Clerk
by Judy C. Olive
Deputy Clerk
ORDER
The defendant has filed a motion for new trial.
The first asserted ground is that the evidence was insuffi-
cient to support the verdict. This allegation is utterly
without merit.
The second ground is the allegation that the eyewitness
identification of the defendant by bank employees should
have been suppressed because the Government did not
affirmatively advise the witnesses that they could talk to
defense attorneys. There was no showing that the Govern-
ment told the witnesses they could not talk with defense
attorneys. This ground is also without merit.
The third ground is that the physical evidence connecting
the defendant with the crime should have been suppressed
because the first F.B.1. agent to talk with the defendant
was told by the defendant that he wanted a lawyer and had
refused to give his name. The record showed that, subse-
quently, another F.B.1. agent explained to defendant, in
detail, his Constitutional rights, obtained his signature to
a consent to search form, and then conducted the search
of the automobile in which the defendant was riding when
he was apprehended after a high speed chase. The court is
of the opinion that no rights of the defendant were violated
in this procedure. The defendant was fully advised of his
rights, and the fact that he originally refused to make a
statement was not a bar to subsequent advice to him of his
rights. Hill v. Whealon, 490 F.2d 629 (6 Cir. 1974).
The fourth ground is the allegation that the United States
Attorney, on cross examination, elicited from a witness that
the defendant had been released on bond in custody of his
parole or probation officer, thus opening up the matter of a
previous conviction of the defendant of another bank rob-
*
A.18 eet
A.19
bery. The record clearly shows that there was no improper
cross examination by the United States Attorney, and the
witness, defendant’s father, volunteered the information.
This ground is without merit.
The fifth ground of the motion is an allegation that the
United States Attorney in some way prejudiced the jury
in his examination of witnesses on the matter of insanity.
The record shows that this ground is without merit.
The sixth ground of the motion is: ‘‘The court restricted
examination of one of the chief defense witness [sic] to 45
minutes, putting an arbitrary time limit on the defendant,
knowing that defense counsel had given the expert witness,
a psychiatrist, his word that he would not be held over-
night.’’ This is a misstatement of fact. The witness in
question had been subpoenaed at Government expense on
application of the defendant, an indigent. The court did not
limit the time of his examination, and, before the examina-
tion began, advised defense counsel and the witness that, if
the examination was not completed on the day in which
it began, it would be continued on the following morning.
The allegation that a defense lawyer had told the witness
that he would not be held overnight for testimony on the
following day is irrelevant. In addition to the foregoing
comments, the record shows that the particular witness was
fully examined by defense counsel. This ground is without
merit also.
The seventh ground of the motion. relative to the furnish-
ing to the defendant of test data of a psychiatrist who
testified on behalf of the Government, is without merit. The
court has noted that the motion asserts that the most signifi-
cant test conducted was the Minnesota Multiphasic Person-
ality Inventory Test. This assertion is contrary to the
testimony of the chief defense expert witness to the effect
that this test was relatively unimportant. This ground is
without merit.
The eighth ground of the motion is the assertion that the
prosecuting attorney, in his argument to the jury, advised
the jury his personal opinion on the issue of whether or
not the defendant was insane. The record shows that the
prosecuting attorney commented on the fact that the mother
of the defendant, when testifying about the defendant’s
association with a doll, referred to the doll as ‘‘he.’’ He
then said, in substance, ‘‘ Who do you think is crazy—not the
A.20
defendant.’’ Assuming that this was an improper state-
ment, the court is of the opinion that it was not so prejudi-
cial to the defendant as to require any action by the court
at this time. Defense counsel did not object to the argu-
ment when it was made. This ground is without merit.
The ninth ground of the motion is that the court failed to
charge the jury properly on the subject of insanity. No
objection was made to the charge, and the court is of the
opinion that the charge given was accurate and adequate.
This ground is without merit.
The tenth ground of the motion is that the court erred
in refusing to allow defense counsel, in closing argument,
to use a visual aid to emphasize the questions to be decided
by the jury on the subject of insanity. The court 1s of the
opinion that this was a matter entirely within its discretion
and that its action was not an abuse of that discretion.
The eleventh ground of the motion is that the sentence
was excessive. The sentence of twenty years, imposed under
the provisions of 18 U.S.C. § 4208(a) (2) was well within the
limits provided by the statute, and, in the opinion of the
court, very lenient in view of the evidence in the record.
The motion for a new trial is DENIED.
/s/ Frank Gray, Jr.
Frank Gray, JR.
Chief Judge
A.21
[63] DIRECT EXAMINATION OF
WILMA JEANE RILING
By Mr. Winpsor:
Q. Miss Riling, what is your occupation, please?
A. Lama bank teller.
Q. Where?
A. At Commerce Union Bank, Nolensville Road Branch.
Q. Did you work there on October 23rd of last year?
A. Yes, I did.
Q. Were you present when the bank was robbed?
A. Yes, I was.
Q. When did you first become aware that something was
happening?
A. I became aware—do you want me to go——
Tue Court: Just tell us what happened. You say the
bank robbery occurred. Why do you know that? What
happened?
A. We were—the bank wasn’t very busy that day. When
this man came into the bank instead of coming to the win-
dow to be waited on, he walked across the lobby and as he
was walking across the lobby my eyes followed him and I
thought, well, we were expecting the bank examiners and
I thought, well, maybe [64] is the bank examiner.
I thought, gosh, he is coming early, because they usually
come late in the day about the time for the bank to close.
Q. Where did the man go?
A. So, I followed him with my eyes and he came all the
way through the gate and all the way around and then I
turned around like this and that is when I saw the gun.
Q. Where was the gun?
A. He was holding it in his hand and he had gone up to—
the assistant manager was standing directly behind me and
he had gone up to the assistant manager and had the gun on
the assistant manager.
As I looked like this, well, he saw that I saw him. So, he
stepped on over to where I was. He gave the assistant
manager a plastic bag and then he gave me a plastic bag.
Q. Let me stop you and ask you a question,
Did you watch him as he walked all the way across the
lobby?
A. I watched him all the way.
Q. Describe his dress, please.
A.22
A. Well, you mean his suit and everything? He was very
dressed, very nice.
Q. That is what I wanted to know.
Tell me something else. Did he falter or seem unsteady
[65] where he was going in the bank?
A. No.
(. How did he walk?
A. Just walked straight in and straight on around.
Q. Straight on around?
A. He didn’t stop. Around through the gate.
Q. Now, are customers supposed to come through that
gate?
A. No, they are not.
Q. So, you didn’t think he was a customer, did you?
A. No. I thought he was going to come over so I could
wait on him and then when he didn’t, of course, I naturally
followed him, thinking he was a bank examiner.
They usually always come at the end of the day. He
must be early because it was around, a little after 11:00.
Q. Were you ever in fear?
A. Well, after I turned and saw that he had a gun, well,
naturally I was. It frightened me.
Q. What happened when you received the plastic bag?
A. He gave me a plastic bag and I was trying to find the
opening in the bag.
Q. Was the bag folded up together?
A. It was a little—no. It was a little white plastic bag
like you would put in a bathroom wastebasket, one of those
little plastic liners.
He gave me that and I was trying to find the opening.
[66] THe Court: Did he say anything to you when he
handed you the plastic bag?
Tue Witness: He gave me the plastic bag. I was fum-
bling with it, and I was getting very, very nervous and try-
ing to find the opening and he said—he had the gun on me
and he said, I am not going to hurt you. I only want your
money.
At that point he started helping me find the opening in
the bag and he found the opening and opened up the drawer
and he started putting the money into the bag.
Q. Did he put some of the bank money in the bag?
A. Yes.
A.23
Q. Did he say anything else?
A. As he was scooping across all my money, he came to
one part of it. He said, is this the bomb? Is this the bomb?
He said, is this the bomb, and I didn’t answer. He said, is
this your bomb? And I nodded yes, you know.
Q. Why didn’t you speak to him?
A. I was frightened and I didn’t speak a word to him.
Q. What did he do with the bomb?
A. He picked it up as he was questioning, when he asked
me the first time. He had it in his hand and picked it up and
he asked me the second time, and I nodded, yes, and he
fumbled with it, you know, to see if it was real money.
He put it back in the drawer. He just sort of put it
[67] back on an angle in the drawer.
Q. Tell the jury what that bomb is and what it does,
please.
A. It is a little block. It looks like real money. If you
pick it up and after it has been off from the pin for three
or four minutes it will go off and it is a dye. It is sort of
a pink dye. It is tear gas, it stings your eyes and makes
everything pink.
Q. Did the man ever ask you anything about marked
money, Mrs. Riling?
A. He said something else to me but I was just so ner-
vous I just don’t remember exactly what he did say to me
when he passed back of me.
He did say another thing when he passed in back of my
money, but I can’t remember exactly what it was he said.
Something about the marked money. He had already had
my marked money. He had already picked it up.
So, the back part wasn’t my marked money, it was an-
other little device we have.
Q. Did the man act like he knew what he was doing?
Mr. Moon: Objection. That is a conclusion.
Tue Court: She can make a conclusion to the best of
her ability.
A. What was your question again?
Q. Did this man act like he knew what he was doing?
[68] A. Yes, he did. He was very calm.
Q. Did you see anything from him that would suggest to
you in your knowledge or your experience that he was not
in touch with reality?
A.24
Mr. Moon: How is she prepared to answer that? That
assumes a definition of reality—assumes what is a part
from reality and that is what I have been studying.
Tue Court: Why don’t you ask a simple question?
(). Did the man seem to recognize the surroundings and
know what money was and bombs were?
o a 16
(). Did he seem to know what he wanted to do with the
money?
A. Yes. He seemed to know what he was doing.
. Was there anything unusual about his speech? Did
it slur or waiver?
A. No.
Q. Did he stagger or reel about?
A. He did not.
Q. Did he seem to be in control of his body?
A. He was.
Q. What was the last thing you saw him do?
A. The last thing I saw him do was walk out of the bank,
and I ran across the lobby to see where he was going, which
car he was getting in.
[69] Q. You testified you ran across the lobby. He
walked?
A. Well, I waited until he got out of the bank, of course.
I watched him. I didn’t move until he was out of the bank
and he was already going up the walk. And then I went out
the lobby to look out the window.
The manager told me to stay away from the window, he
might shoot. So, I ran back over to the drive-in so I could
get his license number.
Q. Were youable toseehimthere?
A. Yes. I saw him pass by the drive-in.
Q. How did he pass by?
A. Just drove right by and got down at the end of the
street and made a right-hand turn right on out.
Q. What was he driving?
A. He was driving a Yellow Cab.
Mr. Winpsor: Counsel may inquire.
° e oe a
[98] DIRECT EXAMINATION OF
ERNEST STAGGS
By Mr. Wrypsor:
Q. Mr. Staggs, what is your job, please?
A.25
A. Idrive a Yellow Cab.
Q. Please speak loudly in the direction of the jury so
they and His Honor can hear you.
A. Idrive a Yellow Cab.
Q. Was that your job in October, 1975?
A. It was.
[99] Q. Do you remember a particular Thursday near the
end of the month?
Very well.
What happened?
I had my cab taken.
What time of day?
Roughly around 11 :00.
How did it happen? Tell us about the encounter you
is
OE >OPROPOPOD
From the start?
Please.
. I got a call at the Big Star Super Market out at the
rlane Shopping Center.
. Approximately what time was it, sir?
A. I guess ten minutes of 11 :00.
Q. Go ahead.
A. And a man said he wanted to go by his girlfriend’s to
pick up some luggage and then go to the airport.
Q. What did the man look like?
A. Well, what do you mean? He was a male, heavy set.
Q. What age was he? What was his age, please?
A. I guess—well, I know what his age was. He was
twenty-four.
Q. How do you know that?
A. I read it in the paper. I don’t know.
Q. You don’t know then?
[100] A. No.
Q. How was he dressed?
A. Well dressed.
Q. How did he speak to you? Was his speech coherent,
Mr. Staggs?
A. I could understand everything he said.
Q. Did it make sense to you?
A. Well, yes.
Q. Was it the kind of thing that cab fares usually say
to you? —
A. Well, yes, weather, this and that.
Q. How did he get into your taxicab?
Fai
A.26
A. Well, he started to get in the front seat. He said,
oh, I will go ahead and ride here. He got in the back seat.
Q. Had he begun to get in the front seat before he said
that?
A. Well, he had the door open.
Q. Where did he tell you to go?
A. He gave me the street address and I told him I didn’t
know where it was. He told me he would give me directions.
Q. Did he give you directions?
A. He did.
Q. Where did you go?
A. We went down Nolensville Road to Old Hickory Blvd.
and made a right. I don’t know the name of the street there.
{101] It is the first street this side of Edmondson Pike,
off Old Hickory Blvd.
He told me to make a left and as soon as we made my
left, whe weren't but fifteen feet and he said, make a right.
Q. What sort of neighborhood is it?
A. It isn’t a neighborhood. It is streets that have been
paved out there, most of them. No homes were ever built
close by.
Q. Did you have any conversation with this young man
on the way out there?
A. Yes.
Q. What about?
A. The weather more than anything else.
Q. Did he make sense?
A. Yes.
Q. Did he ever say anything about there not being any
houses there?
A. Yes. He said his girlfriend, he didn’t know what
made her move way out there, no homes being around there.
Q. When did he say that?
A. To the best of my knowledge when I made the turn
off Old Hickory Blvd.
Q. Did he make it at the time when you could see with
your eyes there weren’t any homes there?
A. Right.
[102] Q. What happened then, please?
A. As soon as I made a right I saw it was a dead end and
I thought, oh, and by that time I heard a click and looked
around and a big revolver staring me in the face.
Q. Who was holding the revolver?
A.27
A. The passenger.
Q. What did he say to you?
A. He said, it’s just not your day and I said, no, I guess
it’s not.
Q. What else did he say then?
A. He said, I am not going to hurt you as long as you do
what I say. He said, I don’t want your money. I just want
to use your cab a little while.
Q. Now, was he still in the back seat?
A. Yes.
Q. Were you still in the front seat?
A. Yes.
Q. What happened then?
Did he give you any explanation?
A. He told me to pull up to the dead end up there and
told me exactly what was about to take place.
Q. What did he tell you?
A. He told me, I am coming around your sid, we are
going across the road, you are going to sit down with your
feet in the ditch and I am going to tie you up or tape you
up. I don’t [103] remember his words.
Q. Did you follow his instructions?
A. I did.
Q. Did you drive the car down to the dead end?
A. Right.
Q. What did he do?
A. He did just what he said he was going to do, came
down and marched me across the road.
Q. Now, going slowly and remember as best you can
before he marched you across the road, did anything hap-
pen?
A. Well, I pulled a foolish trick. I reached for my ciga-
rettes and trip sheet out of force of habit, I guess.
Q. Where were you when you reached for those things?
A. I was opening the door and getting out.
Q. Indicate for the jury, pretend you are sitting in your
cab there on the witness stand and tell the jury where the
man was standing in relationship to you.
You can use your hands if you would like.
A. I would say about straight out from the door there.
Q. Who opened the door, you or him?
A. I really can’t remember that. I am pretty sure I
A.28
opened my own door. I am pretty sure I reached and
opened it.
Q. After the door was opened, what did you do?
A. Well, I started to reach for the cigarettes and trip
sheet.
[104] Q. Where were they, Mr. Staggs?
A. Well, the trip sheet I am positive was on the seat of
the car and the cigarettes might have been up on the dash.
Q. To your right there?
A. To my right there, yes.
Q. So the man is on your left and you turned around and
reached down for something at your right hip?
Yes.
What did the man do when you did that?
He sort of waved the pistol in. He said, Huh-uh.
How close was the pistol to you?
It was right beside me.
Were you scared?
Certainly.
Did you go across the road with the man?
I did.
Did he have the gun all the time?
Yes.
What happened when you got over there?
. He handed me a roli of tape and told me to tape my
ankles.
Q. Did you do that?
A. I was attempting to and I broke the tape twice. He
said, never mind. He taped my hands behind my back and
came around and finished the job up on my legs.
[105] Q. Now, when the man was finishing the job up on
your legs, did he say anything to you?
A. Yes. He said when he came around, he said, no kick-
ing. He said for me to stay there I think thirty minutes.
Q. Did he say what might happen to you?
A. No. He said if I didn’t—don’t worry, I wouldn’t be
left there. There would be somebody there within an hour
or two to release me if I hadn’t gotten untied myself.
Q. Did he say how somebody would get there within an
hour or so?
A. He said he would notify somebody.
Q. Then what happened?
A. I sat there a good ten minutes, I guess.
Q. How long did he stay there before he left?
POPOPOPOPOPe>
A.29
A. Well, when he went back to get in the cab he said—
that was another time I was more scared—he sat there
about two or three minutes before he pulled off.
How did he pull off?
How?
Yes, sir.
What do you mean, fast, slow, or what?
Fast, slow or normal.
Just normally.
Then what did you do?
. I got my feet loose and walked across the field there
[106] until I came to a house.
Q. Did the words the man spoke to you on that day make
sense to you, sir?
A. Yes. He talked with plenty of intelligence to me now.
Q. Did he seem calm?
A. Yes.
Mr. Winpsor: May the witness be shown the map, please.
POPO>OPS
Q. Mr. Staggs, do you have a problem with your eyesight,
close work?
A. Yes, I do.
Q. Will you please look at this map and tell us if—you
don’t have any glasses, do you, sir?
A. No.
Q. Look at the map and tell us if you can find the area
where you drove this man to that day.
A. This print is a little fine. I can tell you exactly where
the street is on here.
Q. If someone shows you Old Hickory Blvd. and Nolens-
ville Road
A. Iecan show them from there.
Mr. Winpsor: Without a defense objection, Your Honor,
may I do that?
Tue Court: Sure.
Q. Here is Old Hickory Blvd., Mr. Staggs, and here is
[107] Nolensville Road. Do you see the red?
A. Yes. This is Edmondson Pike, coming in here.
Q. Edmondson Pike is right here, sir?
A. It would be the last street on the left before you get
to Edmondson Pike off Old Hickory Blvd. It really isn’t
listed on here.
A.30
Q. Thank you. Mr. Staggs, did you ever take an FBI
agent back out there where you were taped up and show
him the place?
A. I did.
Q. Did you find anything there?
A. Found the tape and stuff.
Q. Will you please look at the items I am handing to the
Marshal, package of used tape and tin rolls. Were you
present when they were recovered?
A. Yes, I was.
Q. Where were they found?
A. Part of them were found right at the scene and another
part was found down to the home I went to where the lady
took and untaped my wrists.
Q. She helped you get loose?
A. Right.
Mr. Winpsor: I would like to offer them into evidence as
a Government Exhibit.
Tue Court: Let them be made part of the record.
[108] Tue Crerk: Marked Plaintiff’s Exhibit No. 5.
Mr. Winpsor: May the witness be shown the gun at this
time.
Q. Look at this gun the Marshal is showing you and tell
us whether or not it represents the one you were telling us
about?
A. Yes. It was about the same caliber and it was a re-
volver.
Q. All right. On October 23rd could you tell whether or
not the gun was loaded that was pointed at you?
Yes.
>
Q. How could you tell?
A. You could see the bullets out the end of it.
Q. In the cylinder?
A. Yes.
Q. Did you see them with your own eyes?
A. I saw the bullets sticking out the end of it.
Mr. Winpsor: Counsel may inquire.
eer Oe
A.31
[192] DIRECT EXAMINATION OF
L. D. HUTT
By Mr. DurHam:
Q. Dr. Hutt, will you state your educational background,
lease.
. A. I received the Ph.D. in psychology from the Univer-
sity of Arkansas in 1968 and then did roughly a year’s
work at the Topeka Medical State Hospital under the Men-
ninger Foundation in Topeka, Kansas.
Q. Tell us your work at Menninger in Topeka, Kansas.
A. I was involved in evaluating and treating individuals
with various types of mental disorders including psychosis,
neurosis, personality disorders, and so forth.
Q. What is your present appointments? a
A. I am presently Director of Psychology Training at
Tennessee Psychiatric Hospital an Institute in Memphis.
I am also an assistant clinical professor in the Department
of Psychiatry, Tennessee University Medical School, Diag-
nostic Coordinator, Shelby County Penal Farm and as-
sociate professor of psychology at Memphis State Univer-
sity.
0. Do you have any connection with Tennessee Univer-
sity Medical School?
[193] A. Yes.
Tue Court: He just stated it.
Mr. DurHam: | am sorry.
Tue Court: Okay. Go ahead.
Q. At Dr. Munden’s request, a physician, did you exam-
ine David Wayne Burks?
A. Yes, sir, I did.
Q. Have you prepared a psychological report on Mr.
Burks?
A. Yes, I did.
Q. What did you find in your evaluation of David?
Mr. Winpsor: Objection. May we have the time and
place?
Q. When did you examine him and where?
Tae Court: Just ask him when he conducted the study.
Q. When did you do this and where?
A.32
A. This was done in my private office at Memphis, Ten-
nessee. I saw him for a total of six and a half hours on
November 15th, on November 22nd, 1975.
Q. What tests did you perform on David?
A. The evaluation techniques used included a Clinical
Interview in which we looked at his mental status, Human
Figure drawings, Bender-Gestalt Test, Wechsler Adult
Intelligence Seale, Rorschach Psychodiagnostie Technique,
Thematic Apperception Test and the Minnesota Multiphasic
Personality Inventory.
[194] Q. Whois Dr. Kenneth Munden?
A. lam sorry.
(). Who is Dr. Kenneth Munden?
A. He is a psychiatrist in Memphis with whom I have
worked fairly often in the past.
Q. Is he a trained psychiatrist?
A. Yes, he is.
Q. Referring to your report, if you wish, give your inter-
view and observations and impressions of David.
A. When David came to the office I noted that he was a
shorter than average, stockily built twenty-four year old
white male. He arrived punctually for the sessions. I also
noted that he had a receding hair-line and conservative
style of dress and grooming that made him look somewhat
older than his stated age.
I noted that David made quite an effort to present him-
self as a self-assured, poised and self-confident person but
there were indications, namely closely bitten nails and visi-
bly moist palms that lead me to suspect a good deal of
underlying anxiety.
Further contact lead me to verify that impression.
I also noted that David’s emotional state during the
interview was rather what one might say high spirits, eu-
phoric, which I thought was particularly unusual consider-
ing the circumstances of his referral, circumstances of why
I saw him.
[195] Q. This was after the bank robbery you saw David,
is that right?
A. That’s correc.
Tue Court: And he seemed to be in high spirits out-
wardly, is that it?
Tue Witness: Outwardly, yes.
A.33
Q. Continue, Doctor.
A. I noted he smiled, laughed and joked at describing
the robbery; his subsequent apprehension by the police and
the possible years of imprisonment he faces.
He voiced no regret about his actions and stated he does
not fear imprisonment. In fact, he seemed to look forward
to it, based on my interview with him.
It was my distinct impression that he views his actions
as verifying that he is a ‘‘tough guy’’ and finds that per-
ception of himself a reassurance against fears that he is
essentially passive and vulnerable.
Q. Go ahead and continue with your report, please.
A. We talked a little bit about David and his history.
He made every effort in these discussions to present himself
as a hypernormal, super-rational, purposeful and controlled
individual.
I asked him about his nerves and he disclaimed any diff-
culties past or present. ~
Quite to the contrary, he continued to characterize [196]
himself as in control of my nerves and anxieties at all times,
which I thought is rather unusual.
Most of us do have occasions on which our nerves and
anxieties do get out of control.
By his report, he indicated that emotion played no part
in my life. He went on to describe periods in which he feels
that he has a heightened ability to concentrates, attend and
think clearly.
He feels at those times, as if all senses are finely attuned
and total mental alertness, and his reflexes are ready for
any circumstances.
I noted in all this there was definitely a grandiose quality
and as well as to statements about his football abilities and
his stature in the peer group during his high school years
and so on.
He attempted to view himself as a rather cunning, calcu-
lating, computer-like fellow who observes and manipulates
the actions and reactions of others from a vantage point of
bemused detachment.
Q. Will you state that again in different words, rephrase
that?
A. The last sentence?
Tue Court: Like in a little more layman’s language, is
what he is telling us.
A.34
A. David presented himself I think when I was inter-
viewing [197] him as a person who in his day to day life,
he has what we might call a superman mind, superman
mentality. He is extraordinary in this regard, that his is
not like the rest of us, so to speak, that he is sort of a
master mind.
Q. Well, is he in fact bright?
A. Oh, yes, he is definitely bright. In the intellectual
evaluation I found him to be overall and above average.
Q. He elicited actions of others from a vantage point of
bemused detachment. What do you mean by that?
A. I mean that David sees himself as cut off from others,
as not being part of other people, for example, groups. He
mentioned that back during his high school years although
he was very popular, and so forth, with his peer group he
never really felt he was part of the peer group, that he,
himself, distanced himself from the group.
Q. You took a history of David, did you not?
A. Fairly extensive history.
Q. Would you relate what that was in relation to his
condition going back to high school days, for example, his
football and bringing up through his military service.
A. I don’t recall all those details sufficiently to do that.
Q. Go ahead and continue with your report.
A. I asked him specifically about symptoms of mental
illness such as hallucinations, thought control, the idea that
[198] he could read people’s minds or other people could
read his mind. He denied all those things as stated but he
went on to brag that he could hallucinate if he so desired,
which I thought was another indication of the feeling of
himself as totally in control of everything about himself.
He indicated he is not depressed. He indicated that feel-
ings of estrangement, perceptual distortions were not
without normal limits.
He indicated that a depersonalization experience—that
is where a person feels he is outside of himself looking at
himself—after a brain concussion sustained in a high school
football game. That was the only depersonalization exper-
ience that he mentioned.
Q. All right. Continue.
A. My impression of David during the interview is that
ordinarily he is able to converse very logically and his
thoughts appear to be coherent. There is no evidence of any
A.35
sort of frank and well crystallized delusions. In other words,
David is the sort of fellow that if you only talked with him
for say a half hour or forty-five minutes, you would get the
impression that there is absolutely nothing wrong with him,
that there is no psychopathology. His facade in that re-
gard I think is very good.
It was only after I had talked with him for probably a
half hour or forty-five minutes that I began to pickup some
[199] of the underlying pathology. There are times even
in the interview where David will lapse into kind of a pe-
culiar way of saying things.
For example, he talked at one point,about an older brother
as having been quote married out of wedlock. What he
intended to communicate was that his brother got a girl
pregnant and then married her.
He described this as being married out of wedlock.
There are times which his logic breaks down and his
reasoning ability breaks down and this is even more ap-
parent on the tests that I did. To summarize——
Q. Let’s not leave that point right there. Elaborate on
that. When you say there are times that his logic breaks
down, elaborate.
A. ‘There are instances in which David simply can’t think,
use his mind in the way that most of us can understand the
majority of the circumstances. I would say David is very
excellent at this. But if he is under stress, anxiety, that
type thing, he loses the capacity to reason in his mind.
Q. Continue with your report, Doctor.
A. Just to summarize, based on the interview, I described
David as an extremely anxious, insecure, vulnerable and
socially isolated young man who has erected a paranoid,
superman view of himself as a cunning and calculating
mastermind.
Q. Can you say that in more lay terms, paranoid super-
man [200] view.
A. By paranoid, we mean particularly chis is a psychotic
condition in which the person feels that he is better than
others, he feels that he is somehow above and beyond other
human beings.
This is often characterized by suspiciousness and that
sort of thing.
Q. You said he has a paranoid superman view of himself
as a cunning and calculating mastermind.
A.36
A. Yes. The feeling on David’s part is that he is quote
a superman, that he is above most of the rest of us in terms
of intelligence.
Q. That is true, isn’t it?
A. Well, in one sense that is true. It is true that he is
a very bright young man.
Q. He is above one hundred, above the rest?
A. Yes. This is more of David’s perception of himself
than his actual IQ indicates. He is definitely a bright young
man.
Q. All right. Continue.
A. My feeling was that he was not floridly psychotic but
his thought disorder emerges periodically in autistic logic
and primary process.
By floridly, it is apparent to the ordinary person but his
thought disorder, that is the underlying mental illness [201]
does come out periodically in the interview and even more
so in the psychological tests.
Q. You say here he comes out in autistic logic and primary
process. What does that mean?
A. Autistic logic is a logic, reasonable processes that is
not shared by the rest of us, a very personal way of reason-
ing and thinking.
Q. Is that also with primary process?
A. Right.
Q. Continue.
A. On the psychological testing I did, intellectually David
earned a Verbal IQ-——
Q. Before you get to that, read the last sentence.
A. His psychopathology is denied and appears to be
thoroughly ego-syntonic.
Q. What do you mean?
A. By that I mean David completely denies the possi-
bilities that he is ill and the term ego-syntonic means he
perfectly accepts his psychopathology as being normal.
Q. So, are you able to say whether or not he was trying
to convince you whether he had a mental illness one way or
the other?
A. David in my contact with him attempted to convince
me he was not mentally ill.
Q. Continue.
[202] Let’s take up the question of intellectual evaluation.
A. On the Wechsler Adult Intelligence Scale, which is
A.37
standardized and used to measure the intelligence, David
earned a Verbal IQ of 127. 100 is normal or average, 127 is
in the superior range.
His Performance IQ is 115. That would be in the bright-
normal or bright-average. And his Full Scale or overall
scale IQ was 122, which puts him in the superior range of
overall intelligence.
I indicated that these scores were considered to be ac-
curate and reliable estimates of his intelligence and placed
him in the superior classification of general intelligence.
His verbal skills, that is Verbal IQ are considerably
advanced, according to his intelligence. It points to the
sort of person who is particularly what we call overidea-
tional, he spends a lot of time thinking, the wheels of his
mind are working constantly, which is often associated with
hgh anxiety or the kind of paranoid process that we talked
about.
Looking at the individual subtests——
Q. Could you relate that also to organic involvement?
A. Pardon me?
Q. Is there any relation to organic involvement?
Mr. Wrinpsor: I would object at this time. I don’t believe
this witness has been qualified on organic matters——
Tue Court: Well, he can testify on that concerning his
experience——
[203] Mr. Durnam: Excuse me.
Tue Court: I want you to qualify him, if you are going
to ask him about organic disorders.
Q. These tests, Rorschach and all, do some of them bring
out organic involvement?
A. Yes.
Mr. Winpsor: Same objection, may it please the Court.
Tue Court: Wait a minute. Let him ask the questions.
Go ahead.
Q. Is it within the realm of psychological knowledge as
opposed to medical knowledge to note where there are fluc-
tuations of IQ between Verbal IQ and other forms of IQ,
would that be in the realm of the compentancy of psycholo-
gist, organic brain damage?
A. Yes.
Q. Does that apply to David in any manner?
A.38
A. I don’t feel that this twelve point difference is defini-
tive by any stretch of the imagination but it does raise a
question of some organic involvement, particularly consid-
ering he does have a history of brain concussion.
Q. All right. Continue, please.
A. The various subtests on the WAIS I administered re-
flected relative weaknesses in judgment, that is common
sense and his ability to comprehend and his understanding
of social interpersonal relations and situations. [204] The
interesting thing about his judgmental impairment, it isn’t
across-the-board type thing.
Under most circumstances David’s judgment is good.
His common sense is good but under certain circumstances
and under certain conditions there will be lapses in his
judgment.
I noted on the report that while he generally can size up
situations accurately and respond appropriately he occa-
sionally reacts on inappropriate, impulsive and panicked
manner which is potentially dangerous to himself and other
people.
His relative strengths generally were noted in remote
memory, concentration ability, his immediate recall or im-
mediate memory, his general word uses, his ability to
abstract and his attention to detail.
I noted in the report——
Q. Let’s take those one at a time, please. Relative
strengths are seen in remote memory. Give us an example
of that.
A. This would be the ability to recall things of his dis-
tant past. It would also be the ability to remember things
that most of us learn fairly early in life, things like how
many weeks are in a year, basic kinds of information like
that.
Q. You said concentration. Go ahead and continue but
explain them a little more in lay terms.
A. Concentration would be the ability to focus on work-
ing [205] out a problem. For example, an arithmetic prob-
lem. If you are given a fairly complex arithmetic problem
it requires you to concentrate and keep the numbers in mind
and work it through.
Immediate recall, this is the immediate kind of memory,
that is if I tell you something now and ask you two minutes
from now what I said, you would be able to recall it.
A.39
Word fluency means his general level of vocabulary, his
ability to use words.
The ability to think abstractly is generally what we mean
by reasoning ability or thinking ability.
Attention to visualized detail would be the act to focus
in on the details of any given kind of situation and pay
attention to those details.
Q. What do the relative strengths in these categories
suggest to you, if anything?
A. They are suggestive of a person who is pretty much
on guard, vigilant, overly alert to things going on around
him, particularly overly alert to indications of threat, dan-
ger, that type of thing, which is, of course, consistent with
a paranoid personality.
Q. Continue.
A. I indicated in the report that his thought processes as
reflected by the intelligence tests are typically logical and
reality oriented. When thinking breaks down, however, the
break down is complete, resulting in a type of logic and
[206] type of thinking that is definitely not normal, autistic
and arbitrary logic.
Q. Autistic is what?
A. This is a personal, peculiar way of thinking.
Q. Can you give an example of that?
A. One example was on the test I had administered. The
question is, in what way are a fly and a tree alike. Most
people will say they are alike because the are living things.
David’s answer was that they are both related to a kite.
When I asked him to explain, he said you fly a kite and
one obstacle is a tree. This is an off the wall autistic thought
process.
Q. What is your personality evaluation?
A. I indicated in the personality evaluation that the
Rorschach test, which is the ink blot test, corroborates the
interview and the evidence of a schizophrenic thought dis-
order, several responses reflecting grossly arbitrary and
autistic logic.
Q. Could you tell us this in more laymen terms? Ror-
schach is what test?
A. The Rorschach is the so called ink blot test. This is
a test in which a person is shown a standard set of ink blots
and asked to describe what he sees in the test or in the card.
Based on that test we were able to evaluate the person’s
thinking and whether his thinking agrees with most of the
A.40
rest of our thinking and how he sees things around himself
compared [207] to other people.
Q. Go ahead. Continue with the intelligence test.
A. Both the Rorschach and WAIS gave evidence of
schizophrenic thought disorder, that is a disorder of think-
ing, disorder of reasoning ability reflecting arbitrary logic
and autistic logic.
One thing I noted on the Rorschach is that he is prone
to making sweeping generalizations based on insignificant
bits of information and his thought processes in making
these generalizations become very convoluted and very cir-
cumstantial, extremely arbitrary.
Q. Say that in lay terms about convoluted.
A. He kind of takes off on a path of his own, should we
say, when thinking. Well, he simply doesn’t think in the
way that the rest of us do.
Q. Continue.
A. I have indicaied that this style, style of thinking
where you take very small, trivial bits of information and
blow it completely out of proportion is classically that as-
sociated with paranoid thinking and sort of the thinking
where a person can take a real but trivial bit of information
and make a paranoid delusional system out of it.
A good example of this would be if someone notices a
blue car parked out in front of the house, they might assume
that this means that there is a conspiracy of some [208]
people after them. The fact that the blue car is there is
real but the interpretation of what they put on it is not
warranted.
Q. What is ego defenses? What does that mean? What
are they and what does that term mean?
A. It means the types of things that we do in controlling
anxiety, keeping anxiety, nervousness, depression down.
The way David handles these sorts of things is he com-
pletely denies it, that he has anything wrong with him.
There is nothing wrong with me, nothing wrong with the
way I think, with the way I feel, the way I act, this is per-
fectly normal behavior.
Another way that he has of dealing with his anxiety is
to say there is nothing wrong with me but rather there is
something wrong with you or the system or with other
people.
He also avoids getting close to people, that is he tends
A4l
to remain very distant, very isolated from other people in
order to keep down anxiety and nervousness and this type
thing.
Q. Is he able to have close and personal relationships?
A. Not in any real sense. Dave can associate with people,
he can go through the motions, I should say, of associating
with people but it is not likely he is able to form any deep,
emotional attachment with people, closely emotional at-
tachment.
Q. Go ahead.
[209] A. I found that these defenses are ways of handling
his anxiety is pretty brittle. By brittle, once they break
down they really break down, they kind of crumble.
When the defense crumbles, he tends to become psychotic.
Psychotic episodes of varying durations.
It is not David under most conditions but under certain
conditions, prolonged stress or anxiety, that sort of thing,
he can develop psychotic thinking.
I found that his anxiety level, his characteristic level of
anxiety is very high such as he has to spend a lot of time
maintaining his anxiety and doesn’t have a lot of energy
left over for more productive kinds of pursuits.
He is psychologically a strained person, his defenses are
strained.
Q. Just continue, Doctor.
A. It seems because he is so strained, he doesn’t have
the kind of psychological and emotional reserves that most
of us have to draw on when we find ourselves under stress
or pressure. So that when he finds himself under pressure
or anxiety or stress, he tends to break down.
I have indicated that the projective test data——
Q. Excuse me. Let me go back.
When does he break down?
A. Under prolonged stress, anxiety, fatigue, pressure,
tension. Under any of those conditions.
[210] Q. What do you mean by break down?
A. By break down, I mean he lapses into a psychotic
level of functioning over which he doesn’t have conscious
control.
Q. Go ahead, sir.
A. The personality testing data indicates that David
tends to see things around him as rather dangerous and he
sees himself as rather weak and unable to handle things.
A.42
In talking in terms of weaknesses, he doesn’t perceive
himself weak at the conscious level but at a deeper level,
unconscious level he fears that he is a pretty weak kind of
fellow.
Q. Explain that to the jury, how a man at a conscious
level can see himself as very strong and at an unconscious
level would see himself as a weak person.
A. Well, I think we have to talk about first the difference
between conscious attitudes or feelings. It is entirely possi-
ble or very often characteristic of people that the way we
see ourselves consciously, we would perceive ourselves
consciously is not necessarily our underlying unadmitted
perception of ourselves.
In other words, a conscious day to day level David does
all kinds of things to demonstrate to himself that he is in
fact a strong, adequate kind of person.
For example, his military career and that type of [211]
thing, his football playing. But an unconscious level, a level
which he is not aware which these personality tests tap into,
the indication is that he does not see himself that way.
Q. All right. Go ahead.
A. I have indicated that he feels like he has to kind of
always be on the alert and always be vigilant to ward off
psychological threat. His conscious defense is to bolster his
confidence by convincing himself that he is without fear or
trepedation and possessed of unique and special abilities.
It is kind of like whistling in the dark to kind of reassure
yourself psychologically that everything is okay.
It was my impression based on everything | looked at
that his criminal activities and his attraction for rough and
tough kinds of pursuits such as football and combat appear
to be a way of demonstrating to himself that he is a tough
guy rather than admitting to himself he feels somewhat
vulnerable and puny underneath this.
Q. What about taking a gun and robbing a bank, how
does that fit in?
A. I would see that as a manifestation of exactly what
we talked about. That is, taking a gun and robbing a bank
I think proves to David that he is in fact a tough guy, that
he is a bad guy.
Q. What is your diagnosis of David?
A. My diagnosis was paranoid schizophrenia.
[212] Q. All right. Now, Dr. Hutt, these things that you
A.43
testified to about David’s personality, is that based just on
conversations with David or do you as a psychologist have
a long battery of tests that you give?
A. This is based partly on conversations with David but
most of the evaluation and diagnostic work is based on
psychological tests, rather extensive battery.
Q. Have you brought the raw tests that you gave to
David?
A. Yes.
Q. You administered all these tests personally?
A. Yes.
Q. Have you brought them to the courtroom today?
A. Yes, I have.
Q. All right. Let’s start with the (Spelling) WAIS test.
Mr. DurHam: I have copies for each member of the jury.
They are lengthy and I also have one for the Court. May I
pass it to His Honor?
Tue Court: Let me see it.
Mr. Duruam: I intend to go through each page line by
line as long as Your Honor will permit me.
Tue Court: What do you want me to do about it?
Mr. Duruam: I have copies for each member of the jury.
The witness has the original copy and Mr. Windsor [213]
has his copy and I have my copy. ~
I want to discuss it page by page.
Tue Court: Do you have any objection, Mr. Windsor?
Pag Winpsor: No, Your Honor, if they are returned after
this.
Tue Court: Oh, yes, they will be returned.
Let them have them for reference.
Mr. Durnam: Your Honor, we are a little short. We may
have to ask the alternate to look on.
Tue Court: All right.
The alternate can share it.
Mr. Winpsor: Before he begins, may I just examine one
of the pages the jury has so I will be following along?
Tue Court: Sure.
Mr. DurHam: May I proceed, Your Honor?
Tue Court: Go ahead.
Q. Dr. Hutt, let’s start with the WAIS Record Form,
David Burks on the left-hand corner.
A. Yes.
A.44
Q. Go through that. As much as you can without my
questioning you, just explain it.
Tue Court: First tell us whose panSoriing this is, if it’s
yours or Mr. Burks or what.
Tse Witness: Yes, sir. This is my own handwriting.
[214] Tse Court: All right.
A. What I have done is——
Q. You did these tests on those two dates you testified
to earlier, is that correct?
A. That’s correct, the 15th and 22nd.
On the face sheet there, the very first sheet this is just
a description or labeling of the different subtests that are
involved in this WAIS, (Spelling) WAIS. If you notice
under subtests it has information comprehension, arithme-
tic, similarity, digit span, vocabulary, picture completion,
abbreviated, picture arrangements, block design, object as-
sembly and digit symbols.
These handwritten scores under the column labeled raw
and weighted, these are simply scores that we use in com-
puting the IQ or intelligence quotient. It really has no
meaning to a non-psychologist.
Q. It might have some meaning to us. Can you make the
subtests have meaning to us in relation to David’s mental
problem?
A. The information subtests as I said before, this is a
test getting at remote memory.
Q. You didn’t get that one, did you?
A. Information?
Q. Yes.
A. Yes, I did.
[215] Q. Maybe I am confused. I don’t see any mark
by that.
A. Iam referring to these right down here.
Q. Isee. Okay.
A. On the information subtests he got a raw score of
twenty-three and weighted score scale of fourteen which
mean that he did a pretty good job.
Q. That is the next page, isn’t it?
A. The information subtests, actual items administered
and his responses.
Tue Court: This top page is just a summary sheet?
Tue Witness: Yes, sir.
Ped
A.45
Tue Court: Why don’t we get away from that.
Mr. Winpsor: Something was omitted on that top sum-
mary sheet.
Tue Court: Well, you can get to it later.
Mr. Duruam: If you tell me what it is, we will get to it
now.
Mr. Winpsor: Later will be fine.
Q. Go ahead with the information and correlate the two,
the front sheet with the questions.
A. These questions listed on Pages 2 and 3 make up the
information subtests referring back over to the face sheet
which would be abbreviated down in the lower left-hand
corner, information.
[216] As I have indicated on the information, we asked
questions you might say beginning at least on common
knowledge, facts most all of us would know or have picked
up. For example, what are the colors of the American flag,
what is the shape of a ball—
Tue Court: Wait a minute. Mine doesn’t have anything
except the typed word flag.
Tue Witness: Yes, sir. This is just kind of a cue to us to
help us remember exactly what phrase the questions is.
Q. Go ahead, Dr. Hutt.
A. So, we started out with very simple kinds of items
like that, how many months are in a year, Number 4, what
is a thermometer, that type thing.
Tue Court: I don’t see anything on here except the
‘.ords. I don’t see the answers there. I see answers further
down, apparently.
Tue Wirness: Yes, sir. The first four items on this test
are not administered except when we suspect that a person
is mentally retarded.
The standard procedure for administering this test-——
Tue Court: You don’t put any entry there if he says,
red white and blue? Is that right?
Tue Wirness: Yes.
[217] Te Court: Okay. Now, we are getting somewhere.
Go ahead.
Q. Go to Number 5.
A. Where does rubber come from? David’s response was,
trees, which is a perfectly good answer.
A.46
Q. You have given him a score of one if he gets it right?
A. A score of one. Each correct answer on this subtest
gets a score of one.
The sixth item is, name four men that have been president
of the United States since 1900.
David did quite well on that. An interesting thing was
that he tended to get a little bit pertinacious, a little bit
inflated on this.
For example, Dwight Eisenhower, Lyndon Baines John-
son, Richard M. Nixon. Most people would just say Ken-
nedy, Eisenhower, Johnson, Nixon, and so forth.
Q. What does that mean, if anything?
A. It kind of suggests a kind of pertinacious quality that
goes along with David’s inflated view of himself and his
actions.
Item Number 7, Longfellow was a famous man. What was
he? David answered correctly, a writer. Item Number 8,
how many weeks are there in a year? David answered cor-
rectly, 52. Item 9, in what direction would you be traveling
if you went from Chicago to Panama? David answered
correctly, South, [218] which I have abbreviated with an
66Qo?
Item 10, where is Brazil? David answered correctly, South
America, which I have abbreviated with ‘‘S. A.”’
I would say between Items 7, 8, 9, 10 there is nothing
particularly of note there.
Q. Skip over those things that don’t have any significance.
A. Item Number 11, the question is, how tall is the aver-
age American woman? David becomes very indecisive and
kind of hedges around back and forth on this item. Item
Number 12——
Q. Does that mean anything?
A. Yes. I think it is pant of his difficulty of thinking and
making a decision.
Q. Go ahead.
A. Item Number 12, what is the capital of Italy? He
smiles and he says the capital of Italy is Rome and then he
said, no, that doesn’t seem right but I will go with it. Its
probably some off the wall place like Palermo or Bologna
which is kind of David’s far fetched way of thinking, his
inability to accept the obvious. He looks beyond the obvious
and apparently again is very suspicious, paranoid way of
thinking. Item Number 13——
A.47
Q. Let me ask you, how many people with 127 IQ would
know the capital of Italy?
Tue Court: He wouldn’t know.
[219] Mr. Winpsor: Objection.
Tue Court: I just stated the objection before it was
made. How would he know, how many people with 127 IQ
would know what the capital of Italy was? Let’s go.
Q. Go down to 13.
A. I don’t think anything particularly was significant
there.
Number 14, I think this is perhaps the best insight on
this particular subtest and to David’s way of thinking.
The question is, when is Washington’s birthday? 99% of
the people, I say 99% of the people I have administered
this to assume we are talking about George Washington and
they always assume I mean the month and day. David says,
are you talking about George Washington, which again I
think reflects his tendency not to accept the obvious, to be
kind of suspicious, to really pin you down.
Then he says, I would say 1726. He say, do you want to
know why I made that guess? He says because in 1776 he
was the president of the United States. The Constitution
and Declaration of Independence and since youths were
younger then when they achieved things it was probably
about fifty years old, he was about fifty years old.
I stated at this point I realized he was getting way off
base. I said, what about the month and day? He said, do
you want me to guess? I said, yes, take a guess. He said,
[220] August, but I couldn’t say as to the day. He says,
do you want me to give you the reason why I guessed Au-
gust? I said, yes.
He said, well, he believed before the advent of the birth
control, most conceptions of babies occurred in the winter
and most births occurred in August.
Really an arbitrary kind of logic. From one standpoint—
Tue Court: I thought one is when he answered correctly?
Everything he said was wrong from the year to date and
month. Why did you give him a one?
Tue Witness: This was a scoring error. This was a
clerical error.
Tue Court: You should have zero then?
Tue Wrrness: Right.
A.48
Tue Court: That is what I thought. Go ahead.
A. Again I think that response there pretty much indi-
cates how David on occasion can get totally out in left field
and kind of get caught up in his own arbitrary logic.
Item 17, nothing particular.
Q. We skipped 15.
A. Item 15, nothing significant there. He answered to
Shakespeare. 16 he answered in an acceptable manner,
nothing particular there.
Item 17, the question is, how far is it from New York to
Paris? He gives an accer*sble response there, nothing
[221] particularly signific
Item 18 the question i cre is Egypt? He first of all
says, I don’t know what you are looking for. He said, do
you mean geographically where is it? Again, I think that
reflects a suspicious bit on David’s part.
Most people would automatically assume if you ask where
is Egypt, you would be talking about geographically.
He misses that and says it is on the European Continent.
I don’t believe there is anything else of particular signifi-
cance on the information subtest.
Q. All right. Let’s go to the next test, comprehension,
is that right?
A. Right. The comprehension subtest is essentially a
test of common sense, reasoning, judgment, ability to know
what you should do in certain situations.
Again Items 1 and 2, these are automatically given credit
if we don’t suspect the person is mentally retarded.
They are not even administered.
Item Number 3, the question is, if you found an envelope
on the street that is sealed, addressed and has a used stamp
on it, what should you do? David’s response is, what should
you do? As to imply that there may be a difference between
what you should do and what he would do. I replied, yes.
He said, you should mail it. Then I inquired, what would
you do? He said, well, I might be tempted to look inside it.
[222] _ However, most things on the street are not really
significant anyway So, he says he would go on and mail it.
This I think kind of reflects the impulsive antisocial kind
of orientation on David’s part.
Itme Number 4 is why should we stay away from bad
company? His response there is, what do you mean by bad
company? Again this reflects the kind of suspicious flavor
A.49
of David’s thinking and his inability to respond to things in
terms of the obvious.
Then when I tell him by company I mean the conventional
definition of bad company. He says the simple reason is that
they could cause trouble for you, that you might not want.
I say, cause trouble and he says, they could do something
you wouldn’t do and since you are there you are part of it.
Which is not a full credit answer. The best credit answer
would be that you would be likely to be influenced by that
company in the way you are acting.
Now, I meitioned in the report that certain circumstances
David reacts impulsively and in a kind of panicked and ill
thought out manner.
Q. In what, ill thought out?
A. Panicked and ill thought out manner. I think the next
item gets better at that. The question here is, if you were
in a crowded movie theatre and smelled smoke or say fire,
what would you do? Of course, most people would say I
would
[223] go to the usher or manager and notify him and he
could evacuate the movie house in an orderly fashion.
David says rather immediately, I would yell fire. In my
report I alluded to the fact that his judgment could some-
times be impaired to the point it would be harmful to him-
self and other people.
This is an example of what I was talking about, where
he simply comes up with a very impulsive way of handling
a situation, where it is not thought out.
Q. Do you know why David just might have given you
that answer? If he is found incompetent it would be to his
advantage.
A. I don’t think so. In general he did a very good job on
this test. So, my feeling would be if he were trying to fool
me, if he were trying to present himself as incompetent he
would have picked up errors on down in this test, and he
did not do that.
Q. You stated earlier you felt he would like for you to
find him incompetent and was trying to fool you, if I under-
stood your testimony corectly.
A. No. I said I felt David was trying to convince me he
is competent, not incompetent.
Q. Isee. Go ahead.
A. The other items he does very well on. Item Number 9
A.50
I think perhaps is worthy of comment. The question there,
[224] Item Number 9 is, if you are lost in the forest in the
daytime, how do you go about finding your way out? Well,
the obvious way, of course, is to check the moss or follow a
stream or look at the sun. David very much—he gets a cor-
rect answer here but he very much over complicates that.
He first of all says, well, it depends on how thick the forest
is. If you can’t see the sun and you have a watch—if you can
see the sun and you have a watch, you can determine the
direction and walk in the direction that you know is the
closest exit to the forest. In other words, he gets the right
idea but he uses’a much more complicated way of expressing
it than he would need to.
Again, reflecting the kind of over complicated thought
style he has.
Q. All right. What is the next one?
You talked about death or whatever the next one is that
is significant to you.
A. Item 10 I don’t think is significant. Item 11 I don’t
think is significant. Item 12 is not particularly significant.
Item 13 is not particularly significant.
Item 14, the question is, what is the meaning of this state-
ment, one swallow doesn’t make a summer? David mis-
understands summer to be supper and I corrected him and
said, no, summer. He said, is there a bird named a swallow?
I said, yes, there is. Then he says, when you see birds come
out it doesn’t necessarily mean that summer is here. That is
[225] stupid. Then he says, I never heard that before. For
all I know birds could come out in the fall of the year.
Again he kind of takes off with a very personal, arbitrary
interpretation of a very simple question and as a result gets
no credit on that item.
The main thing I would say that the comprehensive sub-
test indicates that in general David’s judgment is pretty
good but under certain conditions his judgment is very much
impaired. He is likely to be impulsive and react in kind of a
panicky way.
Q. Before we leave this, let me go to the question of David
trying to fool you.
Are there controls built into this test so you can tell
whether or not he is trying to fool you?
A. Well, there isn’t a lie scale or malingering scale.
However, as part of our training and part of our clinical
A51
experience in practice, we become pretty good at picking up
that kind of thing.
For example, a malingerer, someone trying to fool you,
will give you responses that are very nearly accurate but
they are off just a little bit. For example, if you ask a
malingerer how many weeks are in a year he might say 53
or if you ask him how many months are in a year he might
say eleven, almost but not quite.
This is a very consistent pattern with malingerers.
[226] In my opinion David was not malingering, attempt-
ing to fool me on these tests.
{229} Q. If he got more right answers, for example, with
respect to similarities say, what effect would that have? Is
that the intelligence part or pathological disturbance part?
A. Similarities?
Q. Yes.
A. Well, it is both. Similarities, the ability to handle
similarities, reflection, intelligence. But psychopathology,
thought disorder did also creep into the similarity subtest.
There can be evidence of thought disorder in the similarity
test which is exactly what we have here in this case.
For example, Item 12 the question is, in what way are
praise and punishment alike? Most people there would say
these are ways of disciplining or influencing other people.
David said, these are both means of gaining recognition
of some sort, some act or action, which may have some im-
plication in terms of the act he perpetrated, namely the
robbery.
Perhaps this was some way of gaining recognition for
himself.
Item 13, this is the item I alluded to in my report. The
question is, in what way are a fly and tree alike? The typical
answer is that they are both living things or both are part of
nature, or something like this.
David says that they are both related to a kite. He says,
you fly a kite and one obstacle is a tree, which is really out
in left field.
[230] This makes no sense in terms of handling that item.
This is what I mean when I said that ordinarily David’s
thinking is very good but on occasions he really breaks
down.
A.52
Q. Let’s skip Number 5 and go forward.
A. Digit span. The task here is to give the patient some
numbers. You call them out to him and the patient’s task is
to listen carefully and repeat these numbers back to you.
Of course, you give him two or three examples so he is able
to follow you, and so forth and so on.
David did quite well on that. He got eight digits forward
and after you determine how many digits forward the per-
son can remember then you go back and say now, I am going
to give you some numbers and I want you to give them to me
in reverse order.
I will say it forward and you say it backwards. He did
exceptionally well on that.
He was able to reverse eight digits, which is something
in my experience very few people are able to do. Generally
six or seven is about the highest.
Q. What is significant of that, if anything?
A. I think the significance is that it reflects the sort of
hypervigilant, hyperalert, hyperattentive type of relation-
ship that David has with things going on around him. He
also saw that as a challenge of proving himself and very
much rallying to the occasion, which again is David’s
[231] personality makeup.
Q What is the story you called—
A. That is a test that is given when we suspect impair-
ment of memory and there is no reason to suspect any kind
of memory impairment in David. So, I didn’t administer
that test.
Q. What is Number 6, picture application?
A. Picture application is a subtest in which we present
the patient with twenty-one different little pictures and they
are roughly two and a half inches by two and a half inches,
the cards are. In each one of these pictures there will be
some significant detail missing, some significant detail left
out.
For example, the first item, there is a picture of a door
and one thing that is missing there is the door knob. The
patient’s task is to pick up the detail that is missing in each
of these pictures.
David dees extremely well on that. He only misses two
items out of the entire twenty-one, which is in my experience
very typical of a person who is paranoid, who is very atten-
tive to minute kinds of thing in the environment.
[235] Q. Okay. Going back to the cover sheet, do you want
to sum up the WAIS for us now?
A. The WAIS is a test of intelligence. On the WAIS
David came out with an overall IQ, full scale IQ of 122 which
is in the superior range. He seems to be generally better in
dealing with words and ideas in working with his hands or
putting his ideas, and so forth, in practice. In general I
found his thinking, his judgment, his common sense, that
sort of thing unimpaired. In other words, no across-the-
board general kind of impairment but under certain cireum-
stances the impairment and judgment do come through.
The impairment in thinking does come through. Basically
that is it as far as the WAIS goes.
Q. Doctor, we have four more tests. You look at these and
tell me chronologically, or tell me which one we should take
up next.
A. You might take a look at the Human Figure Drawings
next.
Q. Hold it up so the jury can see it to make sure we all
have the same one. Okay.
A. In this test, which is a test of personality and per-
sonality functions, we instruct the patient to draw first of
[236] all a human figure. We tell him to make a full body
figure, not just stickmen and that sort of thing.
The patient at this point can either draw a male or female,
black, white, any type of figure he chooses to draw.
Then after he draws his first figure then we ask him to
draw a figure of the opposite sex. In other words, if he drew
a male the first time the second time he draws a female. If
he draws a female first, he draws a male second.
And then over on Page 3 we ask the patient to draw a
»icture of a person in a rainstorm.
Now, again he can draw a male, female, child, adult, any-
thing of that sort. Now, we might start here with his first
drawing, that is the drawing of the male figure.
Some things that are interesting here is the heavy choice
of shading and kind of sketchy, uneven quality of the draw-
ing.
Q. What page are you talking about?
A. I am talking about Page 1. This kind of sketchiness
is typically associated with high levels of anxiety. The
treatment of the eyes on this figure is particularly char-
A.54
acteristic of the eye treatment of a paranoid person, that is
the way David drew the eyes, particular characteristic of a
paranoid individual.
Notice that he draws the person kind of as a bum, very
disheveled dress and that sort of thing where David himself
[237] appeared before the session very well dressed, very
well groomed.
Generally the interpretation of the human figure draw-
ings is that people draw when they are asked to draw a
human figure, they put a lot of themselves, perhaps an un-
conscious view of themselves into the human figure.
So, if we assume that is true then David apparently sees
himself not quite as the strong, capable sort of fellow that
he presents himself consciously to be. On the second page—
Q. Excuse me. Before we leave that, what about these
comments you made? Is this your handwriting again?
A. This is my handwriting. I asked him to tell me some-
thing about the person he drew. He said he is sixty years
old, he should appear contented with hair and beard. I con-
veyed that although he is conventional he didn’t care what
people think. He could easily dress in a suit and tie. I say
contented because I don’t want him to have worries—this I
think is very interesting. I say contented because I don’t
want him to have worries about security or where his next
meal is coming from.
He says that picture is me. I feel about like this fellow.
I think there he is saying I can’t allow myself to feel any
insecurity or any worries because I can’t incorporate that
into the views of myself.
[238] Q. Explain that, the left bottom corner.
A. He commented to me that the last time he took the
Human Figures Drawing he drew a Vietnamese girl and he
said, quote, the psychiatrist or psychologist, one made snide
remarks about it. I don’t know what those snide remarks
were supposed to be but again I think it pointed to the para-
noid suspicious, guarded view.
Then we will move to the second page, the drawing of the
female. This figure—
Q. Let me interrupt you. Why would it be suspicious and
paranoid if you drew a picture of a Vietnamese girl and
the doctor made a remark?
A. The drawing of the Vietnamese girl would not be and
the doctor making a remark would not be but using the word
A.55
snide would be. David, he thought it was attacking or criti-
cizing his efforts.
From the drawing of the human female, this drawing
comes across as a very anxious sort of person. The facial
expression seems to be very glum, sour. The human figure
is situated sort of hinged over like this on a stool. Note that
the arms are up like this in a very protected kind of position.
The interesting thing is that this figure drawing has the
characteristics of an older woman.
I would say a very old woman. David says, no, sir, she is
about twenty-six and he goes on to say she is also a
[239] secure individual, no outside worries and no worries
about growing old, no worries about money, and so forth.
Then he says she is not on a bar stool, she is on the kitchen
stool. Her back is to the kitchen looking at the TV or fire-
places, or fireplace.
He himself says that the arms aren’t folded to protect or
security. If the drawing was better—if my drawing was bet-
ter she would be sitting like this, and he demonstrates lean-
ing back on the bar stool very comfortably.
Again I think David’s side comments here, he points
out time and time again that this is a very secure person
who does not need protection, which the ordinary person
would not feel compeled to do.
That much emphasis on protection and security I think
reflects that this is definitely a problem with him. The
overall quality of the figure drawing there reflects a lot of
anxiety, a lot of personality difficulty.
The fact that the figure is drawn of a profile is also sug-
gestive of a person who is rather guarded, evasive, doesn’t
really want to reveal himself completely and again would
be consistent with a suspicious, paranoid person.
Q. How do the comments given get on the paper?
Does David tell you about the picture or do you ask him
specific questions?
A. I routinely ask the person to tell me something about
[240] the individual that you have drawn. Ordinarily the
person will say, well, specific age, maybe occupation, that
sort of thing. It is somewhat rare for a person to go into the
kind of detail that David did, particularly about this busi-
ness of security and not needing protection and that type of
thing.
A.56
Q Is there any significance in the fact that he drew the
stool and hips first and breast area last?
A. Generally people will start out with the head area
when they start drawing. Nothing particularly is significant
except to say that it is pretty unusual for a person to start
out in the manner that David did.
(). Are we finished with that one?
A. Yes.
Q. Let’s go to the next one.
A. In the third figure drawing we ask the person to draw
a picture of a person in a rainstorm and the reason we do
this is that the rainstorm symbolizes psychologically out-
side stress and outside pressure, anxiety, tension, that sort
of thing.
By comparing the overall quality of the figure on this
drawing in the rainstorm vs. the overall quality of the
figures in the other two drawings, we get an indication of
how the person is likely to react psychologically to stress
or tension or anxiety or pressure.
I would like for you to note that the figure on the
[241] third drawing is very, very small. Note how tiny and
insignificant the figure is in relationship to the size of the
figures on the first two drawings, indicating that when he
gets under stress he tends to regress psychologically and to
somewhat be compensated psychologically.
The first two figure drawings were not that great but
much better than the third one.
Q. Is there a comment that the rainstorm is not included?
A. Right. He indicated he did not include the rainstorm
in his drawing, which is what we talked about, denial, his
choice of denial of any problems. For a person not to tm-
clude the rainstorm there could very well reflect that he
needs to just deny that anything is going on outside, that
there is any kind of stress or pressure or anxiety.
Q. Are we finished with that one?
A. Yes.
Q. Is there anything else on that?
A. No, I think not.
* * * + .
[244] A. This is the Rorschach Psychodiagnostic Tech-
nique, ink blot test.
What this test is is a series of ten standard ink blots that
A.57
are prepared on cardboard cards and they are presented to
the person in a standard kind of way and he is asked to de-
scribe [245] what he sees in the ink blots as he looks at it.
Q. Are they on the back sheet ?
A. These are not exactly reproductions but they are
similar to form. The original of these, some of them have
color. The color is not reproduced.
Q. Except for the color these are the ones used?
A. Except for the color and size. The original ones are
considerably larger than these. These are reduced in size.
Tue Court: Let me see. You asked what does the first
look like and he says something?
THe Witness: Yes.
Tue Court: Allright. Let’s move.
A. He says on Number 1, I would have to say a bat. He
says that simply because of these two protrusions, referring
to the location chart these meaning these two little things up
in the center that kind of look like hands.
Mr. Wrnpsor: Objection. How can he say what they
mean.
Tue Court: If he pointed it out, he can.
Mr. Winpsor: He didn’t testify to that.
Tue Court: Okay. Is that what he told you?
Tae Witness: Yes.
Tue Court: Go ahead.
A. Simply because of these two protrusions, and I said,
anything else? He says after about forty-five seconds
studying, [246] I would have to say, no. I asked him what
area of the card looked like the bat and he says the whole
thing, and asked him what makes it look like a bat. He
says, wings, structure and antennas and feelers, protrusion
of the feet. He says, incidentally the bat is laid back in
flight. That is a very common, ordinary, popular kind of
response, nothing at all significant there in terms of content.
The fact that he focused in on the two little protrusions
and said looks like a bat because of those two little protru-
sions, is very similar to paranoid tendencies, to take very
small bits of truth and blow it completely out of proportion.
The second card he says looks like a pelvic bone. It even
A.58
has a pretty good picture of a Coccyx or tail bone and says
it doesn’t matter. He turns it around a little bit and says
it doesn’t matter what direction it is in.
I would say nothing particularly significant about that
response, fairly good in terms of form level, somewhat
unusual to focus in on that part of the human anatomy.
Nothing really mentally disturbed about that response.
Q. What about the 11 and 9?
A. That is eleven seconds, nine seconds. This is the time
between when I presented the card to him and the time he
responded.
Card three, this is where David’s thinking really [247]
takes off and this is where his impairment and judgment
and impairment in thinking, his kind of autistic thought
process really comes through.
On card three after he has six seconds he says, I would
have to say these are two ladies. It looks like they are do-
ing something together, maybe establishing some type of
conversation.
Now, so far so good. That is an excellent response to
that card, typical response to the card. It is only on the
inquiry when he really takes off and demonstrates his dis-
turbed thinking.
I asked him why does it look like two women and he says,
well, the heads, the rears, the legs, they have shoes down
here, it looks like they are doing something with their hands
and looks like they are engaged eyeball to eyeball in con-
versation.
So far so good.
Now, David begins to really—his thinking begins to fall
apart. They are both pregnant and that is what they are
talking about. These are their hearts and they are joined.
That is the area in between the two things that look like kind
of human figures. These are the hearts and they are joined.
It is not like they are one but it implies contact. It sym-
bolizes the closeness of the two and then the two little funny
looking things up on the top, he says these look like fetuses
up here, they are close to the head. Since they are [248]
close to the head that means they are in their thoughts.
He says they are ugly as fetuses are and I would say in
pretty good shape.
I questioned him and he said fetuses are ugly. The women
A.59
whe like birds. They are bird people and fetuses look like
birds.
I said you mean a human being with bird like features, or
exactly what do you mean? He said a human being with a
bird like feature or a bird with human features but it has
high heels on.
Now, this type of response is highly indicative of mental
illness, that is the labeling of something as both human and
animal, part dog—as an example, part dog, part human,
that type thing.
That is a very pathological response. I went on to ques-
tion about the hearts and he says, well, its the shape. They
look like hearts because its the shape and plus it is in the
chest area. I asked about the fetus and he said it looked
like a fetus because or the fetus and the position. I asked
about the conversation and he said the conversation is
pleasant and there is uncertainty because neither of them
have been pregnant before and they are talking about it.
Now, this is an extremely elaborate, detailed, overworked
kind of response and I think reflects the type of thinking
that David sometimes does and the type of thinking [249]
he is capable of.
In other words, his thinking, logical thinking breaks down
and he takes off arbitrarily—the second response on that
card says, could be a lane with two trees marking the en-
trance.
Q. Still on card Number 3?
A. Still on card Number 3.
He said a country lane or road in the country. Nothing
I would say pathological about that response except in the
inquiry he talks about trees guarding the entrance to the
lane. Again the idea of guarding, protection, necessity to be
protected and also be on guard, which is pretty much con-
sistent with a paranoid way of thinking.
That was all on card 3.
Card 4 he says, I have to say a swamp with overhanging
trees, Cypress trees. That is all he says on there. It says
you are at the edge of a swamp looking in. Configuration is
not important, only the dark coloration and overhanging
trees.
The emphasis on the darkness of this is highly suggestive
of anxiety, and we have seen other indications of anxiety
in the testing data.
A.60
This I would say is not a highly pathological response
but it points to a high level of anxiety.
That is all he did on card 4.
Card 5, he says, this is a butterfly, and this is very typical,
ordinary kind of response. Then he says, can’t [250] help
but say it looks like a sheep skin. Again that is a pretty
good response. But when he talks about the sheep skin
he says it looks like that because it has dark coloration
and fringes and edges like a fur, again indicating pretty
high level of anxiety.
And still on card 5 his third response, it is also on all of
them, I see a short line, inlets and peninsulas, but that is
characteristic of ink blots.
In the inquiry he says this bigger one is from a distance
of about two thousand feet and the little one is from a
distance of twenty thousand feet, so it is actualiy bigger.
To arbitrarily say these are viewed from a particular dis-
tance, this is a very unusual kind of response on the Ror-
schach.
The perception of the island, inlets, peninsula, things seen
from the distance is often suggestive of people feeling cut
off from other people and distant from other people.
Card Number 6 he says this looks like a wolf head or skin
that has been laid out—laid down with the head intact. The
perception of an animal skin there is nothing unusual but
to say it is a wolf skin is somewhat unusual and sort of
reflects his perception of other people as being predatory,
again reflecting a need for guardedness.
His second response on the card, he says shorelines, in-
lets, clouds, insect anatomy such as pinchers.
Again the shorelines, inlets, clouds reflect pretty [251]
high anxiety and feelings of being cut off emotionally.
Card Number 7 says this is a well drilling device, head of
a well drilling device. He says the way it is shaped, it is
encompassed by dirt and soil and he says it doesn’t actually
look like dirt and soil but it is encompassing the bit and that
for that reason it must be like soil.
He says it is an oil well or whatever. Again the anxiety is
indicated in that response.
Q. Why is that?
A. The use of the color on that. He talks about the dirt
and soil encompassing the bit, and the use of the shading
and dark color will tend to reflect anxiety.
A.61
Q. Let me ask you why is that? You answer was to that
—your answer speaks of color, the darker the color the
greater the anxiety.
A. This has been pretty well demonstrated by research on
the Rorschach, that people who tend to focus in on shading,
shading of black and white tend to be rather anxious kinds
of people.
There are all kinds of theories as to why that is true but
I don’t think that would be necessary to go into.
Q. All right.
A. The second response to that card turned upside down
he says I don’t know how to say this. It is a comic strip
called Bode, a little purple fellow. There are two of them
[252] and here is the long nose and eyes, and I can’t remem-
ber what magazine. It may be Psychology Today. I am not
familiar with that comic strip but the quality of the re-
sponse was somewhat suspect.
Q. Card—
A. Card 8 he says, I see two whales.
Q. Is there anything significant about the fact that ap-
parently David reads a psychological magazine?
A. Psychology Today is a popular newsstand kind of
psychological magazine that may or may not be significant.
I don’t think it necessarily is significant.
Tue Court: Allright. You are on 8?
A. Card 8 I see two whales but they both have legs and
tails. I guess it would have to be more appropriate to say
Salamanders.
A good response, nothing particularly disturbed about
that response.
The second response to Card 8, he says this is peculiar.
I can see the central nervous system, it’s intact. I see the two
hemispheres of the brain, the thoracic region and lower lum-
bar region and all has been dissected from the rear and
placed on the page in a two dimensional picture.
It is accurate except the spinal cord is unprotected.
Now, anatomy responses on the Rorschach, which this is,
are not highly unusual but this particular response [253]
emphasizing the exposed nervous system I think pretty
much reflects the kind of condition that David finds himself
in. That is that he is underneath this facade a very sensi-
tive, very touchy kind of individual.
A.62
He has a lot of, metaphorically speaking, a lot of nerves
exposed and is a touchy sort of person.
Card 9 he says he sees a big bird sitting on top of some-
thing. Instead of wings he has two balls which could be
fists pointing out towards you. I am really stretching my
imagination. I have to grope to come up with anything.
This is not a particularly good form level response. It is
also an extremely paranoid response. This is the eagle as
seen like this and is coming at him. He said, I can see his
head and eyes if you are looking directly at him. It looks
like he has his arms and fists doubled up.
Card 10 he says, I see two trouts. That is a very typical
kind of response.
I see the shoot of a tree about three inches in diameter,
about three feet off the ground that has been cut off. Noth-
ing particularly significant about that.
He also says that he sees two red blood cells and I believe
he said he saw platelets inside of them. Nothing particu-
larly pathological that comes through on Card 10.
In general I would say the Rorschach is pretty consistent
with the other test findings.
[254] In most instances David did very well on the Ror-
schach but in certain selected instances his thinking very
much broke down and got off on a tangent, which suggests
in real life although he can function generally from time to
time he lapses as a phycotic type.
[258] Q. The last thing we have is what I take to be the
history, is that correct?
A. Clinical Interview.
Q. Yes, sir, Clinical Interview.
Is there anything about that that you want to comment
on?
Mr. Winpsor: May it be held up so the jury and I will
know what one he is talking about?
Tue Court: Is that the one that starts out, situation,
robbed the bank?
Tue Witness: That’s correct.
Tue Court: All right.
A. These are just very rough notes that I made based on
the interview, notes about what David said, what he indi-
cated to me about the act and that sort of thing. I don’t
A.63
think there is anything in particular that would lead—I
think it was pretty well covered this morning when we re-
viewed the psychological report itself.
Q. Doctor, based upon your evaluation of David, do you
have an opinion as to whether or not he was suffering from
mental illness at the time of the commission of this crime in
[259] October, 1975?
A. Yes, I do.
Q. What is that?
A. I feel that he was suffering a mental illness at that
time.
Q. Do you think David knew right from wrong?
A. In a rational-intellectual sense he knew right from
wrong.
Q. Assuming that he knew right from wrong, was the
mental illness such to render him substantially incapable of
conforming his conduct to the requirements of the law that
he is charged with violating, namely, the bank robbery?
A. Yes. I believe he was not able to control that.
Q. Will you explain that answer, please.
A. I believe at that time when he was planning the rob-
bery and that sort of thing that his behavior was not under
his control, that he was not fully capable of controlling that
behavior which was kind of an irresistible urge.
Q. You do think he knows right from wrong?
A. Ina general sense, yes.
Q. I believe you testified that you have a diagnosis of
paranoid schizophrenia for his illness?
A. That’s corect.
Mr. DurHam: You may cross examine.
[260] CROSS EXAMINATION OF L. D. HUTT
By Mr. Winpsor:
[264] o * * . *
Q. Yes, sir. Let me paraphrase this and if there is any
objection or you want to add something, please signify so.
The upper half of the first page he described the bank
robbery prior to last year and he tells you why he com-
mitted it.
A. That’s right.
Q. What reasons did he give you?
A.64
A. He said that he robbed the bank in order to get out of
an unsatisfactory military situation. He was having an af-
fair with a married girl and felt that that would solve that
problem and also in his words put the parental situation on
the line. That is where his parents really carried for him
or really didn’t.
Q. He volunteered that information to you?
A. On inquiry, yes.
Q. Now, doesn’t that indicate to you, sir, he reasoned this
thing out?
A. There is no question that he reasoned it out. He is
capable of reasoning things through but I think most of us,
the opinion would be that that was not a very satisfactory
solution or realistic or logical solution to the situation he
found himself in.
Q. No, sir, it’s not satisfactory but it shows he was cap-
able of reasoning, doesn’t it?
[265] <A. Yes, that’s ecrrect.
Q. And he actually did bring about what he setup to bring
about, didn’t he?
A. That’s correct.
Q. Do you see many people who are faced with problems
that they can’t solve?
A. Yes.
Q. Do you see many of them who operate or choose ways
that just solve the problem for them so they don’t have to
contend with it any more?
A. A fairly—
Tue Court: Let me ask you a question. You said he had
the three reasons to commit the robbery. The only way he
could have achieved success in those was to get caught and
go to the penitentiary, is that right?
Tue Witness: That was his thinking, yes, sir.
Tue Court: Yes. If he robbed it and had not been caught
he would have lost all his objectives, wouldn’t he?
Tue Witness: That’s correct.
Tue Court: It wouldn’t help with his parental situation,
wouldn’t have gotten him out of trouble with the married
woman and wouldn’t have anything to do with the military
situation if he just escaped after robbing the bank?
Tue Witness: That’s correct.
[266] Tue Court: He had to get caught after robbing the
bank?
A.65
Tue Witness: That’s correct.
Tue Court: Go ahead.
Q. He got what he wanted out of it?
A. That’s correct.
Tue Court: He got caught.
Q. Let’s go to the other. He supplied these words to you
as you testified?
A. More or less. They are paraphrased.
Q. Are the words paraphrased or are they his words?
A That was his word. He said he didn’t do it for logical
reasons, it was an impulsive act, I blew everything. There
he talks about blowing a good job, good future relationship
with his parents and that sort of thing.
Q. He really didn’t like the job, did he?
A. He was not entirely clear about that. At one time he
talked as though he did like the job and another time he did
talk as though he didn’t like the job.
Q. Did you learn from your interview with David that
his parents had been a source of great distress for him?
A. I learned from David that there had been a history of
conflict.
Q. If my word stress doesn’t fit in there, if it doesn’t,
tell me a better one, please.
[267] A. I suppose stress would be an accurate word.
Q. You saw this man under stress and anxious when he
came to your office?
A. He was acting in an anxious kind of way.
Q. He bites his fingernails, right?
A. Right.
Q. Let me ask you a hypothetical question. You may not
know the facts. Assume you do for the purpose of the ques-
tion.
Assuming that David Burks had been living with his
mother for about a month in this stressful situation and she
had been after him fifteen times to brush his teeth, fifteen
times to make his bed and fifteen times not to go out of the
house without his shoes and to dress up and clean yourself
up, do you reckon that would have generated any stress on
aman?
A. I am certain it would have increased the stress, no
question about it.
A.66
Q. Do you think it would have made him chew his finger-
nails, sir?
A. Perhaps.
Q. You have underlined the word lead up and you put a
question mark. And the words—I don’t want to offend any-
body but I will go ahead and read it so you don’t have to—
good frame of mind until Tuesday morning. Pissed off then
when went to trunk of car for samples. Impulsive decision
to return to Memphis, and turning to the next page, why not
like, [268] question mark underlined, inexperienced trainees
and everybody was treated alike—officers inexperienced—
felt like could have been officer then, felt better qualified.
He is describing his job, isn’t he?
A. Yes.
Q. That is why he was pissed off, wasn’t it?
A. That is some of the reasons he was feeling particularly
disgruntled at the time.
Q. And he associated this feeling of being pissed off when
he went to the trunk of his car to get samples, didn’t he?
A. This wasn’t entirely clear. I don’t know what it was
about going to the trunk of the car and getting samples that
caused him to flare-up. Apparently that did precipitate it.
Q. Let me ask you this. In your experience, if you think
that precipitated it and he told you he didn’t like the job,
don’t the two go hand in hand, sir?
A. I don’t understand the question.
Q. You have said probably the fact he went to the trunk
of the car to get the samples precipitated the flare-up.
A. Yes.
Q. Wouldn’t he have associated the samples with the job?
A. That is a reasonable assumption.
Q. Fine. If he didn’t like the job and the samples caused
his mind to associate it with it, they go hand in hand, don’t
they?
[269] A. In time, certainly.
Q. It was then that he said, going back to our front page,
decided the hell with it, cleaned out the apartment next day,
drove around knowing I would do it.
A. Yes.
Q. So, he knew this for how long, according to what he
told you?
A. A day or so.
A.67
Tue Court: Knowing to do something. ‘‘ST’’ is some-
thing, isn’t it?
Tue Witness: Right.
Tue Court: I heard him read that before, not it.
Mr. Winpsor: That is quite right.
A. He described his mental state at the time after getting
disgruntled there with the samples as feeling that he would
have to do something. But he indicated to me he didn’t
know what at the time, it was over this period of a day or so
that the idea of robbing the bank came to him.
Q. All right. The samples and job precipitated the
flare-up and caused him to think he had to do something and
he, you said, was rational, something he has to do is get rid
of that job, isn’t it?
A. That is one of tue effects, right.
Q. Did he tell you his father had for a long period of
[270] time encouraged him very strongly to have a job and
to behave in the way that his father behaved?
A. He indicated that his father had put some quote pres-
sure on him to that effect.
Q. From the feeling you got about David, do you think he
could have gone to his father and said, Father, I don’t like
this job, I am going to quit?
A. No, I don’t.
Q. So if he had to get rid of the job he had to find another
way to do it, wouldn’t he?
A. That’s right.
Q. He doesn’t have that job now, does he?
A. No, he does not.
Q. Now, sir, on the second page you said he was grandiose
in describing his football abilities. Did he indicate to you
he was pleased with his football ability? Was it something
he was proud of ?
A. Yes. He indicated that he felt he had had quite a bit
of football potential but due to the fact he was smaller than
most let’s say college football players that this was quite
an achievement for him, that he worked extremely hard,
was quite dedicated and he was extremely good, exception-
ally good.
Q. Did he ever indicate to you it was important to him to
please his father?
A.68
[271] A. At one time or another either directly or indi-
rectly he did.
Q. Let me ask you a hypothetical question. Assume a
football game is being played on the night David was the
quarterback. He threw a touchdown pass that won the game
and five or six times after the football game he asked his
father who won the game. Do you think he could have been
trying to say, Father, are you pleased with me, I won the
game?
A. Very definitely.
Q. Do you think that could have been the response he
was requesting from his father?
A. That is highly likely.
Q. If his father said, you did, David; you did, David
every time does it make it even more likely?
A. Right.
Q. Doctor, do you believe David Burks has ever had a
psychotic episode?
A. Yes, I do.
Q. How certain are you?
A. I am, shall we say, quite confident based upon my
findings.
[286] Q. Doesn’t the interpretation that a psychologist
gives to these things depend on his prior experience in his
own life?
A. Toa certain extent.
Q. And everyone’s life isn’t like everyone else’s life?
[287] A. That’s correct.
Q. On that basis alone, isn’t it possible for one psycholo-
gist to weigh these results differently than another psychol-
ogist?
A. No question about it.
[290] Q. Evidently you didn’t think his little doll was very
important because you didn’t mention it anywhere in your
record.
A. I didn’t know about the doll.
Q. Isn’t it very difficult to make a retrospective statement
about a person’s state of mind in a time that is passed?
A. It is difficult, there is no question about that. The fact
what I am basing my decision on is that he shows the poten-
A.69
tial and capacity to become psychotic under certain condi-
tions and considering the kind of off the wall nature of the
act as I understand it, it would certainly be consistent [291]
with a psychotic episode.
Q. What sort of psychotic episode?
A. I don’t follow you.
Q. What words would you use to describe it to someone?
A. I would use words such as an urge which he was not
able to control.
Q. How long did it last?
A. Based on what he told me it apparently lasted two to
three days.
Q. When did he rob the bank?
A. What date?
Q. Which of the days did he rob the bank?
A. Some of the details I forget. I think it was on a Thurs-
day, second or third day.
Q. Does that mean he restrained the urge for three days?
A. No. I think it means he knew he was going to do some-
thing but didn’t know quite what. There was an urge to
behave but he didn’t quite know what he wanted to do.
Q. All right. So then if he had done anything else and
it hadn’t been wrong your testimony would be the same,
about whatever he decided to do?
A. Right.
Q. Would it make any difference that he may have had a
reasor for choosing whatever t’is something was, the rea-
son for his choosing this mean auything to you?
[292] <A. Yes, I think it would. If he had, for example,
robbed the bank for financial gain and that sort of thing, I
would make less of it in terms of mental illness than the
reasons he gave me; mainly he didn’t know what to do but
he had to do something.
Q. All right, sir. Taking this hypostasis he had three
problems facing him in 1971 and he solved them all by rob-
bing a bank and in 1975 he had a problem and didn’t know
how to solve it and he told you I knew I was going to do
something and I drove around and knew I was going to do
something and finally I did do something and it turned out
to be a bank robbery; do you see any relation between the
problem he couldn’t solve and the fact he robbed the bank
to solve three problems before?
A. No doubt about it.
A.70
Q. You think it is still an impulse he couldn’t resist?
A. Yes, I do.
Q. You don’t think he could have reasoned it for resolv-
ing his problem?
‘s. Not in the first sense that he described the first rob-
bery.
Q. Did he have good recall?
A. Pardon me? ;
Q. Did he have good recall, sir?
A. Yes, he did.
Q. If you were talking to a doctor, medical doctor and
[293] said David Burks had a psychotic episode on October
23rd and robbed a bank, what medical word would you use
to tell the doctor what psychotic episode it was?
A. I would say a psychotic episode and that would be
bout it. ae
i Q. Would you describe it? Would you characterize it?
A. Beyond being psychotic, no, I couldn’t. I would say
that it was an episode in which he was apparently not hal-
lucinating, he was not acting in a totally berserk way, his
actions were pretty much organized, shall we say.
The psychosis of it manifested itself from a standpoint
that this was something he had to do and couldn’t resist
doing.
Q. Let me ask you another hypothetical question.
Assume that David came into your office and you said ,
am going to give you this MMPI test and he said, oh, don’t
bother, my score is so and so and that means I am a paranoid
schizophrenic and you went ahead and give him the test
and that wasn’t his score. What would that mean to yout
A. It would mean very little to me because I don t have
much faith in the MMPI. I use it only in conjunction with
the other tests.
The MMP1 is the type of test that can be easily faked.
Q. You gave it to him, didn’t you?
A. Right.
[294] Q. Now, if you were going to describe the psychotic
episode at the bank to a medical man, would you call it
paranoid?
A. I would say it was a psychotic episode in a paranoid
schizophrenic individual.
Q. Would you say he was paranoid and schizophrenic dur-
ing the episode?
A.71
A. Yes. |
Q. Would the fact he had total recall favor that or be
against it?
A. It would be to a certain extent irrelevant. One of the
characteristics of certain types of paranoia is the height
in recall, that type thing, awareness.
Q. How common is paranoid?
A. How common is paranoia?
Q. Yes.
A. I don’t have the statistics available.
Q. What is your experience?
A. In the population that I see namely at the Tennessee
Psychiatric Hospital and in my private practice and in the
Shelby County Penal Farm that is a fairly frequent diagno-
sis.
Q. Are you familiar with the Diagnostic Manual of Men-
tal Disorders of the American Psychiatrie Association?
A. Yes, Iam.
Q. This was made by psychiatrists, wasn’t it?
[295] <A. That’s correct.
Q. It is widely accepted?
A. It is widely accepted. It is also widely criticized.
Q. But it is the official publication of the American Psy-
chiatric Association?
A. That’s correct.
Q. Let me read to you under heading 297.0 titled Para-
noia. This extremely rare condition is characterized by
gradual development of an intricate, complex and elaborate
paranoid system based on and often proceeding logically
from misinterpretation of an actual event. Frequently the
patient considers himself endowed with unique and superior
ability, which is consistent with what you said.
And now the last sentence. In spite of the chronic course
the condition does not seem to interfere with the rest of the
patient’s thinking and personality.
A. My diagnosis is paranoid schizophrenic not paranoia.
Q. All right. You wouldn’t agree—
Tue Court: No, he didn’t say that, Mr. Windsor. You
asked him about paranoia. He said his diagnosis was para-
noid schizophrenia, which means a little more.
Mr. Winpsor: I see the difference now, Your Honor.
Q. Was he hostile and aggressive when you interviewed
him?
A.72
[296] <A. No. .
Q. Was that consistent with paranoid schizophrenic?
A. It is not typical of a paranoid schizophrenic but not
inconsistent with a paranoid schizophrenic.
Q. Is the fact that he had no hallucinations also not typi-
eal of paranoid schizophrenic?
A. The paranoid schizophrenic, the various schizophrenia
is pretty much intact, much more intact than some of the
other subclassifications on schizophrenia. Paranoid schizo-
phrenias do at times hallucinate. Hallucinations, by no
means do they invariably occur with paranoid schizo-
phrenias.
By the same token hallucinations don’t indicate the pres-
ence of schizophrenic.
Q. Do you believe he told you the truth about everything
during the interview?
A. Substantially, yes.
Q. Hypothetically if he hadn’t would it make a difference
in your diagnosis?
A. If he had not told me the truth, I don’t think it would.
Q. So it didn’t make any difference on your diagnosis
then, did it?
A. What he told me was less important than the way it
was presented. Again the test findings, these were weighted
[297] very heavily in my final evaluation.
Q. Now, if he had told someone other than yourself that
he had been planning a big job and it wasn’t the bank rob-
bery for a long time and it wasn’t associated with him get-
ting pissed off on Tuesday, would that make any difference
in your diagnosis.
A. I think essentially, no. Again I think the testing data
and plus the interview data would tend to substantiate my
diagnosis independently of how long he planned it and that
sort of thing.
Q. Do you believe he knew right from wrong on the day
he robbed the bank?
A. At a purely intellectual, rational level, yes, I think
he probably knew what he was doing was wrong by conven-
tional standards.
Q. What about other things? Do you think he knew he
should stop at the red lights on that day?
A. Lam sure he did.
A.73
Q. So he was able to conform himself to some laws but
not to other laws?
A. That’s correct.
Q. Now, you said he didn’t have any close emotional rela-
tionships and this fact also supported your conclusion that
he was paranoid schizophrenic.
A. This is consistent again wtih paranoid schizophrenic.
The fact that a person doesn’t have close, emotional rela-
tion[298]ships doesn’t indicate that he is paranoid schizo-
phrenic necessarily. Again it is the weight of the evidence.
Q. Well, when you went through your tests, sir, a lot of
them that he got the right answers on you didn’t talk about
them.
A. Well, I was attempting to speed on along. I estab-
lished the fact that under most conditions I thought David
does reason quite logically, quite well and I didn’t see a
point in spending a whole lot of time on that.
Q. Do you believe if there was a policeman in full uniform
standing beside him he would have robbed the bank?
A. No. I think he was—-would have feared being shot. I
think that would have kept him from robbing the bank.
Q. So he would have been able to resist the impulse?
A. That’s right.
Q. If there had been a policeman parked outside the bank
would your answer be the same?
A. I would say that the probability of him going ahead
and perpetrating the act would have been greater.
Q. The fact that you answered no he probably wouldn’t
have means you think his mind would have kept him from
it?
A. I think probably what he would have done is gone to
another bank or have postponed it until a later time and
waited until the policeman was not there.
Q. By an exercise of his will?
[299] A. Well, I don’t know whether you call it will but an
exercise of discretion.
Q. Discretion?
A. Yes.
Q. So he was capable of discretion, wasn’t he?
A. He was capable of discriminating when he would be
shot, when he was likely to be shot and when he was not.
A.74
Q. Was he also capable of discretion in planning the
details of the robbery?
A. He was capable of planning it, no question about that.
Q. That wasn’t my question. The word was discretion
and I had taken it from your example.
Was he capable of discretion?
A. I would say so.
Q. Now, is it true that many psychologists and psychia-
trists feel that the ink blot, Rorschach test is very unreli-
able?
A. There are those that feel that way.
Q. And it is also true that there are those that think the
picture drawing test is very unreliable?
A. That’s correct.
Q. Why do you think the MMPI test is not a good test?
A. Based on my experience with it. I have had an op-
portunity over the past several years to compare MMPI
findings with findings on the more expanded and compre-
hensive batteries and I have not been impressed. In the
individual case my feeling [300] is that you never actually
know what you are dealing with on the MMPI.
Q. Is it true only one person in the world can tell us
what was in David Burks’ mind on October 23rd?
A. I would have to grant that.
Mr. Wixpsor: May I have just a moment, Your Honor?
Tue Court: All right.
Q. How soon after he robbed the bank did his impulse
subside?
A. Lam sorry.
Q. How soon after he robbed the bank did his impulse
subside?
Tue Court: Impulse to what?
Mr. Winpsor: Irrestible impulse.
Tue Court: For what?
Mr. Wrinpsor: To do something.
Tue Court: He already did it. Did his impulse to rob the
bank subside?
Tue Witness: Yes.
Tre Court: All right. Go ahead.
Mr. Wrnpsor: I have no more questions.
Tue Court: Anything further?
Mr. DurHam: No, Your Honor.
A.75
[301] Tue Court: Let me ask you a question. As I under-
stand it the defendant in his interview with you indicated
that he thought his first robbery was a logical thing, is that
right?
Tue Witness: Yes.
Tue Court: Because he robbed to get out of an unsatis-
factory military service.
He robbed the bank to get out of involvement with some
married woman and he committed the robbery to put the
parental situation on the line, is that right?
Tae Witness: That’s right.
Tue Court: The only way that could be logical is to be
caught, is that correct?
Tue Witness: That’s correct.
Tue Court: So to that extent it was logical only to go to
the penitentiary? That is what he wanted to do?
Tue Witness: That’s correct.
THe Court: And the second one you have here that he
didn’t do it for logical reasons. As I understand your an-
swers to Mr. Windsor on cross examination you indicated
that you agreed with him, that he hated his job?
Tue Witness: No, sir. I didn’t mean to agree that he
hated his job. My statement was that—
Tue Court: But his dislike for the job triggered some-
thing? Isn’t that what you said?
{302] Tue Wirness: No. I am not sure of that. He indi-
cated to me in the interview that overall he liked his job
but that there were certain things that really got under his
skin such as this business of feeling like his superiors were
no more knowledgeable than he was.
So he felt very mixed about the job, I suppose.
Tue Court: But he was mixed up about the job, he got
upset, he decided the hell with it, was his language to you,
is that right?
Tue Witness: Yes.
Tue Court: And a solution then was to do something
and that ended up in robbing the bank? The only way to
get rid of that thing would be to get caught again, the same
thing?
Tae Witness: Yes.
Tse Court: He wanted to go to the penitentiary?
Tue Wirvess: That’s right.
A.76
Tue Court: All right.
Call your next witness.
[304] DIRECT EXAMINATION OF
LANDRUM TUCKER
By Mr. DurHamM:
Q. Dr. Tucker, will you give us your educational back-
ground and professional qualifications?
A. Yes. I got my AB from the University of Tennessee
in 1961; M. D. from Stanford University, 1966.
Q. Is that in Palo Alto, California?
A. That’s right. I interned there for a year, did my resi-
dent training from 1970 to 1974 in North Carolina, Univer-
sity of North Carolina.
I am now an Assistant Professor of Psychiatry at the
University of North Carolina and I am also a member of the
U.N.C. Duke Psychology Institute; American Psychiatric
Association, American Medical Association, certified in
psychiatry by the American Board of Psychiatry and Neu-
rology.
Q. All right, sir. At my request did you examine the de-
fendant, David Wayne Burks?
A. Icouldn’t hear you.
Q. At my request did you examine the defendant, David
Wayne Burks?
A. That’s right, I did.
[306] A. Do you want me to kind of go through it and
make a summary of the interview?
Q. Yes.
A. All right. At the time I saw Mr. Bruks he came across
to me as polite, talked politely, neatly dressed. My initial
impression was that he was intelligent, well educated, very
cooperative with me during the interview.
His mood initially seemed calm and collected. There
[307] he was tense at times, would smoke a fair amount. It
was noted whenever he made negative comments about
himself or others rather than show anger he would tend to
laugh or smile.
I got the impression as the interview went on that under
A.77
the surface of Mr. Burks there was a great deal of anger
that he kept under the surface very much. He was oriented
to time, place and person. On a couple of occasions he got
up and checked around the room to be sure nobody was lis-
tening. He tended to isolate affect again, mood, very little
change in his mood during the interview. He was defensive,
seemed to defend against painful aspects that involved par-
ticularly angry feelings towards his family, disappointment
with himself and what he felt guilt regarding relations to
others in his past and probably most with his Vietnam
experiences.
There was a content of thinking grandiosity and an
indentification with the aggressor which I felt was defen-
sive against the feeling of helplessness and insecurity.
His thought processes, he talked in a controlled, steady
voice and obsessive quality to his thinking, some difficulty
going from one area to another, seemed to be tangential in
his thinking tending to go off from one question into many
details leading him into many areas. There wasn’t any ob-
vious looseness of association, flight of ideas. At times it
seemed the reasons he gave for his actions were irrational
or illogical, [308] such as going to great length to lie to his
parents so they wouldn’t know he had a Jewish friend,
because he thought they would be angry and not talk to him.
Q. Let’s elaborate on these instances that you feel are
significant.
A. I asked Mr. Burks as he was telling me about his
past life, it came up that during high school he many times
would lie to his parents. 1 asked him what the lying was
about.
He smiled and said that there was certain things that
didn’t make sense to others, but within his family that the
family had strong feelings about certain things he might do,
like a person he would know they wouldn’t approve of that
he would make a story up. He would go and rather say he
went over to a person’s house and watch a football game,
he would go and buy a ticket at a movie theatre and keep
the stub and show it to his mother to show that he was at
the movie rather than the friend.
I said, why is this so necessary? He said because my
mother wouldn’t talk to me for a week and I had to avoid
that. He talked about also in a previous situation of rob-
bing a bank some few years ago. One reason he felt this
A.78
was a rational decision was that a girl friend he was with
at the time, he wouldn’t have to reject her. If he was un-
successful with the bank robbery she then would reject him
and that to him [309] was a reasonable reason for robbing
the bank.
Also that the money he received would be a way he could
keep from having to depend on his parents for support, if
he had the money that would free him from his parents.
It seemed to him to be another reasonable solution, de-
pending on his parents.
To goon
Q. Let me back up a minute. In your report you talk
about guilt regarding his relationship with others in the
past, with his Vietnam experience and depression and hope-
lessness. Would you comment on that?
A. Yes. There was one situation where he described, he
told me there was a particular girl friend he had had in
Junior High School, that he had been very close to and that
he had felt his parents would reject her. Actually they
were too young to take the relationship seriously so he felt
he had to reject this girl, that she suffered very much from
this rejection and he, himself, felt very guilty that he could
never completely explain to her why he had to do this, and
this again came up in the later situation, much later when
he robbed the bank, he didn’t want to have to reject a girl
again.
The situation in Vietnam was when I got into asking
Mr. Burks about his experiences there, he was very modest,
tended to down play any role he had in the medals he re-
ceived.
He initially said that he loved the experience there [310]
but noted he had a different kind of relationship as many of
the other young men his age. He tended to stay with what
he called the lifers as opposed to many soldiers his age
who were drug addicts and tended not to go along with
many rules and were very hostile.
During that time he was again reluctant to go in to de-
tail about the experiences he had gone through.
I asked him what he must have seen, killings, and so forth,
and he said, of course I saw that.
Then he related a couple of instances where there were
children around but he wouldn’t go into detail with what
happened to the children. He mentioned being involved in
A.79
missions where it involved napalm, which I assume would
be using napalm on the enemy.
He talked about when he was a combat medic, of being
in situations that were involved making decisions that had
to do with deciding who to give medication to and who not to
and again he kept himself very removed and isolated from
these situations.
He went into some detail about bodies that he had to
pick up that were friends and being torn and multilated and
how he had no feelings about this and talked about once you
got used to what you had to do there you found yourself
pretty well isolated from your feelings, that was part of
the job.
Again it would seem to be that he was pretty uncom-
fortable talking about these experiences and I had trouble
[311] getting too much more in detail at that time.
Q. Did David make the decision on who would live and
die in the medication situations?
A. That’s right, sir, yes. He said he was in a situation
where he was always having to favor the American soldiers
over the Vietnamese soldiers because that was standard
at the time. There would be only so much medication and
he had to decide to leave certain people out.
Q. You report the thought processes and verbalizations.
Tell us what that is, explain that.
A. Specifically? Let’s see.
Q. On Page 2.
A. Talking in a controlled, steady voice. Obsessive qual-
ity and tendency to tangential thinking.
Q. What does that mean?
A. Again he would go, kind of go along what I felt Mr.
Burks would kind of keep the feelings out, he talked in a
very controlled, steady way. Tangential thinking, it would
be hard to keep him on a question. He would go off one
question into other thoughts. He would be so methodical
in the answer to a question it would be hard for him to go
to some place else.
In that way there was some difficulty in communicating
with him.
Q. What do you mean in obsessive quality to his thoughts?
A. The idea that he would choose words that have little
[312] affect, little emotion. He would be careful so as to
choose words that would not make you feel one way or the
A.80
other. He was very good at this. He would speak very
carefully. Mainly it has to do with avoiding feelings and
being very methodical to an exaggerated degree to maintain
calmness.
Q. What about his fantasy life and dreams?
A. He didn’t remember any dreams and his fantasies
again were hard to get into. I asked him about it and tried
at other times to talk about fantasies. I was pretty un-
successful in that. :
Q. What about relationships with past girl friends in
high school?
A. Well, he did comment, as I think I said, about it. He
thought about her quite a bit. Even now he would think
about her and over his actions of rejecting her. The only
time he would put somebody out to be close to another per-
son and be very disappointed—he admitted disappointment.
Since then it has been very difficult to be close to anyone,
especially a woman. He would rather wait for women to
approach him rather than he approach them, because of
rejection.
Q. You speak of his superego structure. What issues
could you think of that are important?
A. I said the following issues are very important. He
sets very high standards for himself and he looks down on
those his age that succumb to using drugs and living a loose
life.
[313] Q. Does David use drugs or——
Mr. Winpsor: Objection. How can he know?
Tue Court: As far as he knows is all he can do.
A. As far as I know, no.
Q. Go ahead. Continue.
A. His ego ideal of his adolescence, what his ideal was
to become a successful football player. His brothers had
been very successful of being smart, good sons, one a doctor
and one a lawyer.
Mr. Burks has a superior IQ of 125 yet he found it diffi-
cult to study in school. He always settled for lesser grades
saying that the reading and studiousness were products
of his older brothers. His values and wishes for himself
involved the hope of becoming independent of his parents
and being able to care for himself without any specific oc-
cupation in mind.
A.81
He told me he wished now he would have stayed in the
Military. Mature ego ideals are poorly integrated——
Q. Excuse me. The jury doesn’t understand mature ego
ideals and neither do I.
A. All right. We all have ego ideals, images we would
like to live up to. Mature ego ideals are things that we
can live up to, things that lie within reality.
Immature ego ideals have something to do with super
people, super this, the best person, the best this, a very
[314] exaggerated kind of ego ideals. This is what a two
or three, four year old would have.
Q. Go ahead.
A. He has trouble staying with any one thing for very
long because he feels strapped and shackled. He still has
this feeling of staying with anything very long like trying
to stay in school, he would get disappointed in himself and
quit, stop.
Part of his superego structure seem very harsh and
critical.
Q. Superego is conscious?
A. That’s right. Ego ideals, superego are both parts
of consciousness. He has very high standards for himself
in a way. He is very critical and condemning of certain
parts of himself.
Q. All right.
A. When he was growing up, as you know, you heard al-
ready he was a very religious young man. He had been
away, forced upon him, but at the same time had no difficulty
with the law whatsoever.
It seemed to all come after the Vietnam experience. He
felt guilty about being home late and displeasing his parents.
He also felt his parents were watching over him excessively.
He could never perform well enough to suit them even
when—even when he seemed like he was doing the best, he
didn’t feel he got praised.
[315] Q. You interviewed Mr. and Mrs. Burks and his
brother Larry, the attorney?
A. That’s right.
Q. Can you give us an example of what you learned about
his history, the fact that he couldn’t measure up to what his
mother and dad wanted for him in his own mind.
A. Well, the impression as I talked to them on that, they
tended not to give Mr. Burks any undue praise. When we
a — Se ee ee ~~ ee
Ae Se ay me eR GRE ee an
A.82
talked about his being an all state football player and very
outstanding, there was kind of an air, question, well, David
did do those things, he did a pretty good job.
The mother said in terms of David’s exploits in the
War and attempts to be successful and being an Airborne
Trooper and all these kinds of very risky type of achieve-
ments, well, yes, David was pretty brave but he is really
scared of lots of things, lot of fears.
Not being aware, I think at times they tended to not
give David very much credit for some of the things he
worked hard to get their praise for.
Q. Tell us about the little anecdotes Mrs. Burks said
where the whole family was there, and David was in the
living room cracking his knuckles and tell us what that
means.
Mr. Winpsor: Is he going to testify of something his
mother said?
Tue Court: In the presence of the son. We will [316]
find out all about it, 1 guess.
Go ahead.
A. As I was getting ready to leave the parents were try-
ing to think of other things about Mr. Burks that they
wanted to bring up to me and one thing was about his fears,
and while Mr. Burks was sitting there they began to talk
about his being afraid of the water and about his being
afraid of dolphins and fish. As a way when they were talk-
ing about David they began to almost laugh about it, which
was a little inappropriate. ;
They didn’t seem to be aware of David’s feelings as he
was sitting there listening to this, he might be feeling ridi-
cule or kind of undercutting him.
Q. What was David doing during thattimet
A. He was being quiet with a blank expression on his
face.
Q. What did David’s father say when David threw the
winning pass at the football game?
What does that mean psychologically to you?
Mr. Wrypsor: I don’t understand the question, Your
Honor.
Q. This was the time David was knocked out.
Mr. Wixpsor: Is counsel testifying to this? This witness
wasn’t in the courtroom.
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Mr. DurHam: I am asking a question of the witness.
[317] THe Court: I understand it. Ask it again.
A. Did David or his father in the course of taking the
medical history—did you come across an incident in which
David threw the winning pass and won the football game
and was knocked unconscious and his father came over to
him and spoke certain words to him and David replied, or
whatever?
A. Yes.
Q. Would you recount that incident?
A. Iam trying to remember it. I can’t remember exactly
what was said. It was in the line of rather concerr. about
David or any praise about the kind of really super effort
he had put forth to that point. He made some other com-
ment that didn’t seem to cue in. It was kind of insensitive
to David’s feelings. I can’t remember what was said.
Q. Going back to the report, let’s pick up there where he
speaks with a great deal of anger and rage in Mr. Burks,
particularly after his failure in athletics at the University
of Arkansas.
What happened there?
A. From what I remember Mr. Burks told me he worked
extremely hard in football and wanted to go to the Uni-
versity of Arkansas, he was small compared to other foot-
ball players in college. He built himself up and had a lot
of injuries. When he played there he worked real hard to
make the team but because of his size it was a struggle for
him. Yet he did feel [318] somewhat unfairly treated and
unappreciated by the coaching staff and he, himself, told
me he decided to quit the team because of his disappoint-
ment at that time. He never drank and smoked and he
started drinking and smoking the next day. Right after
that he decided to join the Military with the purpose of
going to Vietnam.
Q. All right. What was the purpose of his joining the
Military and going to Vietnam? You might want to refer to
your report, if it refreshes your memory.
A. I think what I said, which is what I thought, his wish
at that time was to get into combat and was to be a chance
to release some of this rage that had been penned up so
long and to continue his growing tendency to put himself
in a very dangerous life-threatening situation.
A.84
It seems like Mr. Burks beginning in high school began
to, as he didn’t let out his feelings, took it out indirectly
harming himself. This seemed to be in line with going to
Vietnam and getting in combat.
Q. Let’s take that. What about high school, playing
football?
A. It is my impression from talking to Mr. Burks and his
father, we talked a lot about his experience, that Mr. Burks
took repeated risks and he was advised over and over again
by physicians after he had several head injuries, all being
serious, not to go play football again.
[319] Each time he would go out and play football again.
Tue Court: With his father’s permission, consent or
urging?
Tue Wirness: As his father put it to me, Judge, with
reluctant permission.
He felt like if he didn’t let Mr. Burks play football Mr.
Burks would completely be very depressed.
Tue Court: As a medical doctor, if a man has repeated
concussions and even in one occasion has hallucinations as
a result of it, should be continue to play a game that has
or involves physical contact as football does?
Ture Witness: It would be my recommendation that he
wouldn’t.
Tue Court: All right. Go ahead.
Q. Do you have a release in there, a letter from a physi-
cian that said you let David play once he got a release from
his parents?
Do you recall reviewing that document?
A. I don’t recall that particular one. ;
Q. So you said he puts himself in these threatening post-
tions in high school. What about after high school?
A. After high school again the situation in college was
pretty much the same. He put himself in the situation there
where he received lots of bodily injury, of course, trying to
make the team.
[320] Then, of course, in the Vietnam experience he
wanted very much to put himself in a position where he
would be in combat even to the extent, it is interesting, he
became a combat medic where he would be in a position to
getting himself killed and less likely to kill somebody else.
Q. What about the two bank robberies? Is that consis-
tent?
A.85
A. From what I understand of the situation that seems
to be consistent, he again would—he didn’t hurt anybody.
He, himself, almost got killed.
His father related to me the night before the first bank
robbery he threw himself down some stairs whenever he
was with some friends playing a game and drinking. People
were running down the stairs to see how fast they could
get from the top to the bottom.
Instead of running down he threw himself through the
air and landed on his head. That seems like what he must
have done many times in football.
Q. Looking at the bottom of Page 3, speaking of the
bland, detached affect he has now towards his experiences,
would you pick that up there.
A. What page is that?
Q. Page 3 at the bottom.
A. Bland?
Yes. I was saying that I think his bland, detached affect
he has now towards his experiences reflects
[321] Q. You are talking about his bank robbery expe-
riences?
A. And past experiences with people and disappoint-
ments, his strong defense against underlying guilt and
pain. I think it was my impression that during the Vietnam
experience, as he participated in more actions that were
alien to his conscience that he had developed, that it led to
a weakening of the prohibiting part of his conscience and
this had some definite role in his later actions.
Q. Say that in simple language, would you?
A. Well, in simple language Mr. Burks got into the War
situation for mixed reasons. He wanted to prove himself.
He had a lot of rage. In a way a lot of it was self-destruc-
tive.
He wouldn’t be too disappointed if he got killed, and at
the same time another part thought he couldn’t get killed
because he was a superman. He was put in a situation over
there where it was all right for him to do things initially.
He was involved in actions where it involved dead people,
napalming, he saw other people being treated in a very
inhuman way and he was put in that position as well.
Mr. Burks’ conscience in particular was affected in such
a way when he got back into this country it couldn’t func-
tion for him as well. The prohibiting part, the part that
A.86
says you will not do this that keeps you from doing this,
when you get angry it keeps you from hitting someone,
something irrational, criminal, it rendered Mr. Burks in-
active not all [322] the time but sometimes. __
Q. On Page 4 you speak of his concept of himself. What
is that about? ;
A. Again it sort of fits into the idea of the ego ideal.
We have a self concept, and by the time Mr. Burks—I think
by the time he was robbing the first bank his self concept
was severely damaged and some of the defense against the
damage was grandiose, which means it is like the superman
fantasy about himself leading him into actions in a careless
way like robbing a bank where he can be in an instant
successful and powerful in a primitive way.
Q. Slow down and give that a little more in layman’s
nguage, please.
‘ i: oo Mr. Burks it was looking less and less likely for
him, he was going to be the kind of son that would please
his parents, that he was going to be able to marry a girl,
that he was going to be able to be successful in these areas.
He had already been through Vietnam and that had a
certain affect on his conscience. At one point he was under
a lot of stress with trying to decide what to do. At that
point I think by 1972, whatever this what I call grandiose
solution to him, which means he could be somebody very
powerful and rob lots of money from a bank and with all
that money he could solve lots of problems and if it didn’t
work out it would be all right because it was a self destruct
part of him going over [323] there, too.
In a way that part of his conscience was still working.
The prohibiting part was messed up but the punishment was
active.
The part of the conscious mind that keeps you from doing
something—there is another part, if you do something it
may still be active in demanding punishment. Mr. Burks
had a solution.
He would be punished if caught. That would suit the
punishing part. If he was successful he would be grandiose,
since he was feeling like a failure, being able to live up to
what he tried to live up to before Vietnam and earlier on.
Q. Let’s go down to the next sentence about he has
turned from identifying with more positive roles such as
his brothers have taken on and has chosen a negative
A.87
identification as an antisocial outcast. Would you pick up
and explain that in the next sentence?
A. Yes. I said he again had given up competing with his
brothers and father and the whole area of identification at
this time Mr. Burks became, in a way, disintegrated, that
he has a great amount of difficulty in sexual identification.
By that I mean particularly very unable to form a close
relationship with a woman.
He is not comfortable with sexual feelings towards a
woman.
He is fearful of rejection by women, fear of revealing
himself to others, fear of being ridiculed and humiliated.
Q. Do you think he ever had sexual relations with a
woman?
A. That is difficult for me to say. Mr. Burks told me he
had in a very casual way, limited way but he didn’t go into
detail on what that was and what kind of relationship.
It is my impression that if he did it was shallow and
uninvolved.
Q. How about David’s awareness of his problem, looking
at the middle of Page 4.
A. I think he is aware that he has now twice robbed a
bank to seek a solution to what I think are internal conflicts.
The first time was to achieve independence from his
parents and
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