frontline: murder on abortion row: Salvi's Hearing Transcripts

COMMONWEALTH OF MASSACHUSETTS
NORFOLK, ss. SUPERIOR COURT
No. 9518-24

COMMONWEALTH
v.
JOHN SALVI

Dedham, Massachusetts
Monday, July 24, 1994

Before: Dortch-Okara, J.

TRANSCRIPT OF COMPETENCY HEARING

APPEARANCES:
John Kivlan & Marianne Hinkle, Assistant District
Attorneys, For the Commonwealth

J.W. Carney, Jr. & Janice Basil, Esqs.,
For the Defendant
John Lachance, Esq., Amicus Curiae

Catherine P. McEllin, CSR, RPR
Official Court Reporter
Norfolk County Superior Court
Dedham, Massachusetts, O2O26

INDEX
Witnesses: Direct Cross Redirect Recross Phillip Resnick 6 65

Monday, July 24, 1995

[Defendant present with his counsel]

THE CLERK: Your Honor this is Commonwealth v.
John Salvi.

Could I have counsel identify themselves for the record.

MR. KIVLAN: John Kivlan, for the Commonwealth.

MS. HINKLE: Marianne Hinkle for the Commonwealth.

Good Morning.

THE COURT: Good Morning.

MR. KIVLAN: Good Morning.

MR. CARNEY: Good Morning, Your Honor.

J.J. Carney, Jr., co-counsel for John Salvi.
MR. LACHANCE: John Lachance, by appointment of Court, legal counsel.
THE COURT: Good Morning.
Are we ready.
MS. HINKLE: Yes, Your Honor.
Your Honor, the Commonwealth, for purposes of this hearing, would like to file with the Court a competency report authored by Joel Haycock, May 8, 1995 report, Joel Haycock, May 26, 1995, a set of Notes of Dr. Haycock that are listed as A through F.
A video tape which contains the two arraignments, one in the state court in Virginia, and one in the state court here in the Commonwealth of Massachusetts of Mr. Salvi.
I also, Your Honor, am awaiting transcripts of Mr. Salvi's Federal arraignment and Federal court hearing. They simply are not here. They will be here in a matter of moments.
It's the Commonwealth's position, Your Honor, that those documents in total establish far beyond a preponderance of the evidence Mr. Salvi is competent to stand trial.
THE COURT: You are offering these as exhibits.
MS. HINKLE: I am, Your Honor.
THE CLERK: The notes and Dr. Haycock's notes are Exhibit No. 1. The video tape is Exhibit No. 2.
THE COURT: The notes and reports.

[Exhibit No. 1, Notes & Report
and Exhibit No. 2, Tape, were marked and received in evidence]

MS. HINKLE: The Commonwealth believes that establishes the Commonwealth's burden.
THE COURT: The Commonwealth is calling no live testimony.
MS. HINKLE: No, Your Honor, we are not.
THE COURT: Yes, Mr. Lachance.
MR. LACHANCE: Your Honor, over those circumstances, the amicus counsel would call Phillip Resnick.

PHILLIP RESNICK [Sworn]
DIRECT EXAMINATION
Q [By Mr. Lachance] Good morning, sir.
Could you tell us your name and spell your last name for us.
A. Phillip Resnick. R-E-S-N-I-C-K.
Q What is your profession?
A. I am a physician specializing in psychiatry.
Q And what current employment positions do you hold?
A. I am a professor of psychiatry Case Western Reserve University School of Medicine.
I also serve as a part-time director of the Court Psychiatric Clinic serving Cleveland, Ohio.
Q Could you tell us the function of that court psychiatric clinic that you supervise?
A. Yes.
It is a clinic and we evaluate over eight hundred fellows, three hundred misdemeanors each year for issues such as competency to stand trial, sanity at the time of the act, and presentence evaluations.
Q Would you tell us a little bit about your education and training, sir.
A. Yes.
I have a bachelor's degree in psychology and M.D. from Case Western Reserve University 1963. One year internship and three years of psychiatry residency at University Hospital of Cleveland.
Q And do you hold any board certifications, sir?
A. Yes.
I am certified by the American Board of Psychiatry and Neurology since 1971.
Q Do you have any other board certifications, sir?
A. Yes.
I am certified by the American Board of Forensic Psychiatry in 1979 and have what is called an added qualification in forensic psychiatry from the American Board of Psychiatry given last year.
Q Can you describe what that is for us, sir?
A. Yes.
It is a, when someone has completed their basic boards in psychiatry, an added qualification means you take a written examination to show knowledge and competence in a particular area and forensic psychiatry refers to law in psychiatry.
Q Sir, do you hold any memberships or offices in psychiatric institutions?
A. Yes.
I am a member of a number of organizations and served in 1984 as President of the American Academy of Psychiatry and the Law.
Q And sir have you published in the field of forensic psychiatry?
A. Yes, I have.
Q Roughly how many cases?
A. Certainly more than fifty.
Q And in what kind of court have you been qualified?
A. State court, Federal court.
Q And have you qualified to testify as to your opinions about competency to stand trial?
A. Yes, I have.
MR. LACHANCE: Your Honor please, I would ask Mr. Resnick, Dr. Resnick's curriculum vitae be marked as an exhibit in this case. The Commonwealth has copies.
THE COURT: Exhibit No. 3.
THE CLERK: Exhibit No. 3 so marked.

[Exhibit No. 3, C.V.
was marked and received in evidence]

Q Now are you acquainted with an individual named John Salvi?
A. Yes, I am.
Q Do you see the individual you know as John Salvi present in court?
A. I do.
Q Could you point him out for us, please.
A. Yes.
The gentleman in the sweater and blue jacket with chains on.
MR. LACHANCE: May the record reflect that he's identified the Defendant, John Salvi.
THE COURT: Yes.
Q How did you become acquainted with John Salvi, how did you become involved in this situation in the case?
A. Yes.
Some months ago I had a call from Janice Basil, his counsel, who asked if I would evaluate him.
Q And what was the purpose of the evaluation to be at that time, sir?
A. The possibility of some kind of mental illness defense was being considered.
Q Before you first saw Mr. Salvi was the issue of
competency raised with you by his counsel?
A. It was not.
Q And as a result of being brought into the case by
Miss Basil and Mr. Carney did you have occasion to
receive certain information and to examine Mr. Salvi?
A. Yes, I did.
Q On how many occasions did you examine or evaluate Mr.
Salvi?
A. I personally examined Mr. Salvi on two occasions.
Q And when was that?
A. On January 15, 1995 I spent two hours and twenty-
five minutes with him and that interview was video taped and I believe a part of it was shown today and the second interview was June 18, 1995 when I spent two hours and twenty minutes and within that interview I observed one of his attorneys, Janice Basil, talk with
him and engage in some client-attorney interaction.
Q And in addition to those interviews that you had with
Mr. Salvi, and the observations which you made of Mr. Salvi, and his attorney, during those interviews was additional information provided to you about Mr. Salvi which you considered in conducting your evaluations?
A. Yes.
I conducted one phone call to Mr. Salvi's mother just yesterday for 35 minutes and had an opportunity to talk with her and then I reviewed a substantial number of documents. I can review those if you like.
Q Would you please indicate what documents you were given and able to review in connection with your evaluation?
A. Yes.
I reviewed the complete records from Bridgewater State Hospital of Mr. Salvi.
A life chronology of Mr. Salvi. prepared by his attorneys from interviewing a substantial number of people.
A March 30, 1995 court order for competency
evaluation.
A May 3, 1995 letter from Miss Basil outlining
some of the difficulties she was having in getting Mr.
Salvi's cooperation.
A February 23, 1995 transcript of an interview of Mr. Salvi by Doctors Shouten and Kinscheff.
An April 15, 1995 psychological report
prepared by Dr. Kinscheff.
The two reports prepared by Dr. Haycock dated May 8 and May 26, 1995.
And then summaries of a number of interviews and preliminary, and testimony given by some of these individuals at either grand jury hearings or preliminary hearings, and these included an interview with Cindy Lockshire and the testimony she gave January 26, 1995.
An interview with Mark Roberts.
An interview with Arlen Anderson and testimony she gave February 9, 1995.
An interview with Peter McKinnon. An interview
given by him February 3, 1995.
An interview with Kevin Lonegan.
An interview with Lieutenant Colin Forbes and the testimony he gave January 26, 1995.
An interview with Maureen Essigmann.
An interview with Janet Callahan. That is her testimony given on January 20, 1995.
Statements prepared by Mr. Salvi, one of which was a 26-page statement.
Another explanation regarding a Mr. Booshaudde.
An explanation that Mr. Salvi gave to his attorneys when they asked him to give a written account of the events leading to the charges.
A letter that Mr. Salvi wrote to the F.B.I And a record of an interview of Mr. Salvi's parents, John and Marie Salvi, by his attorneys.
Q Now sir after you conduced the first interview did you raise some issue relative to Mr. Salvi's competence?
A. Yes, I did.
Q To your knowledge were you the first one who raised the
issue whether or not John Salvi was competent to stand
trial?
A. I am the first mental health professional to raise
it. I don't know if it was in the mind of the
attorney.
Q In any event, she did not communicate that to you before you saw him for the first time; is that correct?
A. That's correct.
There may have been some conversation in a
phone call what issue are you asking me to address, there may have been some discussion, but the focus was
around the mental illness defense and I was surprised to
find the competency question such a major question based
upon my first interview.
Q Now based on all of the information that you have received and read, and based upon your interviews of
Mr. Salvi on those two occasions, and based on our observation of the interaction between Mr. Salvi and
one of his attorneys on the second visit, do you have
an opinion based on reasonable medical certainty as to
whether Mr. Salvi is suffering from a mental disease,
disorder, or impairment, sir?
A. Yes, I do.
Q And what is that opinion, sir?
A. It's my opinion that Mr. Salvi is suffering from a
mental disease.
Q Can you tell us, sir, what mental disease it is in your
opinion he is suffering from?
A. Yes.
In my opinion Mr. Salvi is suffering from
schizophrenia undifferentiated type.
Q And can you tell us, sir, what is involved in undifferentiated schizophrenia, or schizophrenia of an undifferentiated type?
A. Yes.
First of all, schizophrenia is a major mental
disease which is, usually begins with certain preliminary symptoms called "prodromal symptoms" and then it goes on to frank symptom, in which one is out of touch with reality in some way, specifically delusions, or false beliefs, hallucinations, false
sensory perception, disorganized speech, grossly
disorganized or catatonic behavior, or what are called
negative symptoms, such as a constriction of the mood,
poverty of speech, and difficulty initiating events.
Then further, to make the diagnosis one needs
to show that there is some decline in functioning either
in work, in school, in social relationships, and there
must be a six-month period in which one shows these symptoms in their totality. One month they must show the frank symptoms of delusions, or hallucinations, but
these other symptoms may be shown over a period of six
months.
Q Sir, could you tell us what the basis is for your opinion
Mr. Salvi is suffering from schizophrenia of an
undifferentiated type?
A. Yes.
Mr. Salvi shows a number of characteristic
symptoms of schizophrenia. The first of these involve
delusions, and a delusion is a fixed false belief that
cannot be changed by logic. And Mr. Salvi's delusions,
there actually are a number of them.
He believes that the members of the Catholic
Church are being systematically discriminated against
and they are losing their jobs. He uses the phrase
"financial holocaust" that Catholics are undergoing and he is very anxious to unite Catholics.
Particularly, he has a plan which he has been
discussing for more than a year of allowing persons
charged with counterfeiting to be released from state
prisons to be employed by the Vatican to print money.
And when I asked whether this would be Vatican money or
Unites States money, he said United States currency.
And I said "Well wouldn't that be counterfeiting, or
illegal," and his response to that was "There are 35
million Catholics. So what is someone going to do about
it if we all stick together."
Other examples of delusions that Mr. Salvi has expressed include a belief that frequently adult male
Catholics are sterile because of a conspiracy in which
their scrotums were injected with a spermicidal agent
when they were infants.
He also has expressed concern that there is a conspiracy of free masons who may blind and kill him. That the mafia has been after him. That his car has been bugged.
So that here are a number of different diffuse areas in which he shows psychotic delusional
thinking.
Q Were you able to see examples of that psychotic delusional thinking in your interview with him on
January 15?
A. Yes.
In my own interview with him he elaborated, and some of the will be illustrated by video tape, I believe, his belief about the Catholics being persecuted
and desire to have money printed by the Vatican. MR. LACHANCE: May I approach the witness,
Your Honor.
THE COURT: Yes.
Q Let me show you these two video tapes which purport to
be video tapes of your initial interview of January 15,
1995 and ask you if you recognize those, sir?
A. Actually I don't recognize there but I they are
played I would be glad to authenticate them.
Q And did you-- was a transcript made of those tapes?
A. Yes, it was.
Q And did you mark off on the transcript certain excerpts
of the video tape that you would like to show the court in order to explain and illustrate Mr. Salvi's delusional
thinking you saw at the interview?
A. Yes.
I suggested that two excerpts, the first one a
longer one which reviews some of the delusional descriptions by Mr. Salvi, and a second shorter excerpt.
MR. LACHANCE: If Your Honor please at this
point we would like to mark the entire interview for
identification purposes.
THE COURT: Yes. This is the video tape
interview.
MR. LACHANCE: That is correct.
THE COURT: Are you later offering it.
MR. LACHANCE: I will offer it and I will ask
for protective order of the court with respect to it, if
Your Honor please.
And secondly, would be the copy of the excerpts and I'd ask if at this point, since we have
reached that area of Dr. Resnick's testimony, to show
excerpts from the video tape.
MR. KIVLAN: Yes.
If I may, Your Honor, I would suggest that the
video tape in its entirety be marked as an exhibit and I
would expect the court would have to view the entire
interview anyway, and rather that just having an
excerpt, I would suggest respectfully that the entire exhibit be played.
THE COURT: How long is the interview, the
entire interview?
MR. LACHANCE: The entire video tape is
roughly two hours and twenty-five minutes. The excerpt
from the video tape that we wish to show the Court this morning so that Mr. -- Dr. Resnick -- I keep calling him
Mr. -- Dr. Resnick can comment on it after it's viewed
is approximately twenty-five minutes to a half an hour long, and the second portion is only about 7 or 10 minutes long.
THE COURT: Sir, I am going to have to
receive the entire video tape in evidence. I would not
want to just view a portion of if and the testimony.
I will allow a portion.
MR. LACHANCE: May it please the Court, the
entire video tape was provided to Commonwealth's counsel
last week.
THE COURT: Is that so.
MR. KIVLAN: Yes. We do have a copy of the
tape.
MR. LACHANCE: They have had a chance to view
the tape. They have had a chance to make their own
excerpt and they have had a chance to determine what
if anything they would like to use out of the tape in
cross-examination.
THE COURT: In evidence I will allow it. I
want to give him an opportunity to cross-examine the
doctor on the entire tape.
MR. LACHANCE: That is fine.
MR. KIVLAN: The only thing I am suggesting,
Your Honor, rather than having what they want to select
out of the tape played for you, and having us select
things out of the tape, especially given your observations Friday you don't consider this to be an
adversarial hearing, perhaps the best thing for you,
the fact-finder, this is just my, respectfully,
suggestion, is you view the entire tape.
THE COURT: Yes. I will have to do that
in any case. I don't want to do it during the hearing.
I will take it under advisement.
You may proceed, sir.
MR. LACHANCE: We may play a portion of the
tape.
THE COURT: Yes.
Let's mark it first exhibit.
MR. LACHANCE: If we can have the video tape.
THE CLERK: Your Honor the excerpt is marked
Exhibit 4.
THE COURT: No. The entire tape.
THE CLERK: And the excerpt.
THE COURT: The excerpt is 4A
The two tapes are Exhibit 4. The excerpts are
Exhibit 4A.
[Exhibit 4 & 4A, Tape &
Excerpts, were marked and received in evidence]
MR. LACHANCE: Thank you. Are you ready for it, Your Honor.
THE COURT: That's fine.
THE WITNESS: Your Honor may I have permission
to stop it at points.
THE COURT: Well I would like to counsel to direct you.
THE WITNESS: Okay.
THE COURT: You can do that, sir, under the
direction of counsel.
MR. CARNEY: Your Honor my client I think should be able to see the exhibit, also, please.
THE COURT: Where would you like him seated,
sir.
MR. CARNEY: I will defer to the Court and
court officers, Your Honor.
Your Honor would it help if those blinds were
closed perhaps.

[The tape was played in open court]

THE COURT: Is that the end of the excerpt.
MR. LACHANCE: That is the end of the first
segment. There is a very short second segment.
THE WITNESS: I would like to comment on the
first segment.
THE COURT: only in response to a question.
Q [By Mr. Lachance] Dr. Resnick, can you tell us what
information you gleaned from that portion of the interview with John Salvi is relative to your
assessment of him mental illness?
A. Yes.
I selected this excerpt and I apologize for
its length but I wanted to, Her Honor to see the flow of
conversation. But it illustrates a number of points
about mental illness, particularly a delusion is a false
belief and there is no rational basis for the believer.
And I think that was shown here.
What also was shown was the interlacing
between credit and debt persecutions and printing money.
Quite separate areas but are interlaced in his psychotic
thinking. He is unrealistic about Catholic unity, for
example, 35 million Catholics are going to say to
employer: You better take this person back.
It also show that the idea that you could
allow all Catholics to have good jobs and never lose
their homes is an example of grandiose, that is a
grandiose delusion, a belief that he has power beyond
ordinary mortals.
He also makes the statement in this excerpt
"If they read what I tell them, everybody will become
a leader." It relates to the importance in Mr. Salvi's
mind of the statements that he has released.
He shows examples of being unrealistic, such
as putting owners of companies out without violence and
then when he's pressed on that he shifted to printing
money, rather than being able to give any realistic
answer to it.
When I attempted to confront him with logic
as to why some of these beliefs didn't make sense, he
would switch on to another area.
He said, "You are not supposed to take the
mark of the beast," and then he related this to the credit card with a chip which would give others control
over all Catholics. Again, so we see delusion not only
about persecution, but in various ways it may manifest
itself.
And I particularly tried to bring out the
fact when he said that here is no doubt in his mind about Catholics being persecuted, and I said, "If I
show you the facts, might that change your mind," he
said "No." He said "Bring in all the facts you want."
That is a classic example of a delusion. No amount
of logic will allow him to change his mind. No matter
what he is confronted with, he will cling to the
psychotic belief.
Q In talking about delusions, you also referred to a
particular situation which you were aware of in which
Mr. Salvi claimed that Catholic men, or some Catholic
men were being made sterile because of an injection of
spermicide into their genitals, scrotum at birth; is
that correct?
A. Yes.
Q Now is that an example of the delusion or delusional
thinking?
A. That is an example of delusional thinking and it
goes along with the broad conspiracy against Catholics
that he perceives. That is little more bizarre in its
nature but it's one among many things.
MR. KIVLAN: Objection, Your Honor.
There is nothing on this tape about this last
statement to my knowledge.
THE COURT: Overruled.
MR. LACHANCE: May I approach.
THE COURT: Yes.
MR. KIVLAN: I am just seeing this for the first
time. Could I just have a moment, Your Honor.
THE COURT: Yes.
MR. KILVAN: Your honor I have no objection. I correct the record. Apparently this is a statement, a written statement that was released previously.
Q Dr. Resnick, let me show you this document and ask you if it's familiar to you and whether you have seen it before?
A. Yes. This is a document handwritten by Mr. Salvi which was released and expresses some of his strong beliefs about Catholic persecution.
Q And with respect to page 22 in that document, does that contain the reference that you mentioned to us earlier as a delusional statement?
A. Yes. The exact quote is: "Quite a few of our Catholic young men are sterile due to an injection of spermicide in your scrotums at birth," closed quote.
MR. LACHANCE: I'd offer the statement Your Honor.
MR. KILVAN: We have no objection.
THE COURT: Exhibition No. 5.
THE CLERK: Exhibit No. 5 marked

[Exhibit No. 5, Statement,
was marked and received in evidence]

Q Doctor, considering your diagnosis, coming to your diagnosis schizophrenia undifferentiated, did you have occasion to consider Mr. Salvi's affect and his placability to that particular diagnosis?
A. Yes.
First, I'd explain that affect is a psychiatric term which refers to immediately observable emotions. So mood is a long-term kind of feeling, like someone is chronically depressed. But affect is whether someone has capacity to smile and show ordinary emotions of life.
And Mr. Salvi has what is called flattened or constricted affect. Those observable by me directly. That was observed on multiple times by Dr. Haycock and others in the Bridgewater Institution. And that is consistent with schizophrenia.
Q You talked to us about delusion and affect. Are there additional signs of schizophrenia in Mr. Salvi that you saw that formed the basis for your opinion?
A. Yes. There are a number of other signs that Mr. Salvi showed.
First, he showed the social and occupational decline often seen in schizophrenia and he was fired from a job in 1993 by Mr. Roberts because his behavior became peculiar and bizarre. And he also in March of '93, his apartment was so neglected that there was garbage around with maggots in it. In August '93 he would not bathe and actually was described as stinking.
And in September, 1994, his hygiene again declined with body odor. Although under the circumstances Mr. Salvi is attentive to his hygiene, he certainly was before the onset of the illness, but then periodically since then he has neglected his personal hygiene.
Other evidence of schizophrenia includes peculiar idiosyncratic thinking, guarded paranoid trends in his speech, disorganized speech, the technical word is loosened association, but it's where the examiner, or an ordinary individual cannot follow how Mr. Salvi goes from one topic to another. He just shifts topics. And that is noted by Dr. Haycock on four separate occasions in his report. And his digressive, vague speech is another example of symptom which is consistent with schizophrenia.
Q Can you tell us what digressive vague speech is?
A. Yes.
Digressive vague speech is kind of wandering off the topic, not being specific. At the end of talking to him for a period of time you realized you have talked but you really don't have any specific content of information. He's kind of talked around things.
Q Are you aware of what diagnosis Dr. Haycock came to in his consideration of John Salvi when he examined him at another time?
A. I am based on his two written reports.
Q And what was his diagnosis, sir?
A. Dr. Haycock's diagnosis is called schizotypal personality disorder.
Q In coming to your diagnosis schizophrenia of an undifferentiated type, did you consider the possibility that Salvi had schizotypal personality disorder?
A. Yes. I considered that in detail.
Q Can you tell us how schizophrenia and schizotypal personality disorder are similar and how they are different?
A. Yes.
Schizotypal, first of all, a personality disorder is a long-standing inflexible set of characteristics that someone has throughout their life, whereas schizophrenia is a psychosis which usually has an onset in early adulthood and is more severe and actually brings one more out of touch with reality and they share a number of symptoms in common.
For example, in Mr. Salvi's case, Dr. Haycock noted that Mr. Salvi has odd beliefs, odd thinking, constricted affect, odd behavior and suspiciousness. I saw all those same characteristics. So Dr. Haycock and I agree on that.
There is two major distinctions between Dr. Haycock and me.
The first is that schizotypal personality disorder requires a lack of close friends and as I carefully reviewed with Mr. Salvi's mother, and the other documents, I found that he had an ordinary number of friends in school, hung out with the guys, was doing fine and until age 19 at which time he began to become bizarre, preoccupied with religion in a strange way, carrying the bible around with him, and then he had this decline in his occupational and social functioning. Then he became somewhat more withdrawn, although he still had some friendships.
So in my view the weight of the evidence suggested that he did not meet schizotypal personality, which is characterized by never having the ability to have close friends.
The other issue that Dr. Haycock and I differ on is that I see Mr. Salvi as clearly delusional and those delusions whenever gone over, the spermicide in the scrotum, the being followed by the mafia in the past, by persecution of the Catholics, by the printing of money, by the chip in the credit card causing Catholic finances to be controlled, in my mind those are delusions.
I'm not sure whether or not Dr. Haycock had access to that particular material. Since I interviewed Mr. Salvi on January 15, and he did not see Mr. Salvi until some months later, Mr. Salvi may have been less forthcoming at that time. He was less forthcoming about that in my second interview. So Dr. Haycock may not have had an opportunity to see that. If he did then and he still thinks that is not a delusion, then we would simply have a difference of opinion.
Q Between the first interview you had and the second interview you had, which were a number of months apart, are you aware of Mr. Salvi becoming aware of his counsel's questions with regard to his competency?
A. Yes. I first raised the issue of competence to Mr. Salvi during my January 15 interview and he made it clear to me that he wanted to be competent to stand trial, did not believe he had a mental illness. Felt that might take away from the message it was important to him to deliver and so it is entirely possible that he would be less forthcoming with ideas that others would view as psychiatric because he did not want a diagnosis of mental illness.
Q You have reviewed Dr. Haycock's reports; is that correct?
A. Yes I have.
Q And is it fair to say that in those reports he also indicates that Mr. Salvi told him repeatedly that he was competent and wanted to stand trial?
A. That is correct.
Q Now in reaching your opinion that Mr. Salvi had schizophrenia undifferentiated type, did you consider the possibility that Mr. Salvi, notwithstanding his statements of competency, was malingering in some way? A. I did consider the possibility.
Q Do you have some special expertise in the area of malingering?
A. Yes. I have written a number of book chapters and articles on the topic of detecting malingering of mental illness and I teach workshops around the country on that topic.
Q Do you have an opinion based on reasonable medical certainty as to whether Mr. Salvi was faking a mental illness at the time that you saw him January -- or in June?
A. My opinion is that Mr. Salvi is not faking mental illness. The evidence for this includes the consistency of his statements. For example, several witnesses and his parents observed him talk about the printing of currency by the Vatican for a year or two. So this is not something he just made up when I interviewed him. And the actual pattern of speech shows schizophrenic disorganized thinking. It is relatively easier to fake delusion. One can simply say the mafia is following me. But the actual disorganization of speech which I observed, and Dr. Haycock mentions in his report is not something which is easy to fake. So in my mind it's quite clear, and Dr. Haycock concurred in his report that he did not suspend malingering in this Defendant.
Q In addition to what you just told us is a history of bizarre and perhaps psychotic behavior indicative of lack of malingering as well?
A. Yes.
The more someone had been shown to act in a bizarre manner, say strange things, earlier in their life, that would, that would give weight to the legitimacy of illness, as opposed to someone who said I was fine until two o'clock on a Sunday and now I have had the strange belief since then. That would be more suspicious.
Q Did you have historical evidence of psychosis in this case?
A. Yes.
I had a number of pieces of historical evidence which were consistent with earlier onset of psychosis.
Q Could you tell us what those were, Doctor.
A. Yes.
Mr. Salvi's mother told me of experiences which are best construed as hallucinations or false sensory perceptions.
An example of this occurred when Mr. Salvi told his mother that he had literally seen evil in the form of a big black bird that swooped by while he was standing in his family room. And then Cindy Lockshire, a woman with whom he was close in the year or two before the shootings, made the statement that he had, he described like an angel and a demon on each shoulder. And she questioned him, "Are you speaking metaphorically, is that like your conscience," and he said "No. They literally speak to me from outside my body." That would be another example suggesting hallucinations.
Q Are you aware of an incident that took place on Christmas Eve?
A. Yes. I read several different witnesses' accounts of an event that occurred December 24, 1994.
Q And are those accounts consistent with him having schizophrenia?
A. Yes. The accounts of course vary slightly as different witnesses always vary slightly but the gist of it is that Mr. Salvi was standing in the back of a church on Christmas Eve because there was standing room only. At the conclusion of the sermon, when the priest said "Jesus loves you," Mr. Salvi became agitated, marched up to the front of the church, started screaming and ranting and raving "Jesus doesn't love you." Launched into his psychotic belief system about the need for Catholics to print money, about how, his phrase was "You are all fucking pussys," closed quotes, because you are not doing what you need to do, and another words, his conduct that night is consistent with the delusional material that he revealed to me January 15.
I think his behavior that night also shows to me the intense need he had to get his message out, that he was willing to interrupt a Christmas Eve service to do it. Just as it's been important for him to get out his written statements
Q Now sir moving on from your diagnosis with regard to mental illness, what is your understanding, sir, of the legal standard in Massachusetts for competency to stand trial?
A. My understanding of the precise legal standard in Massachusetts comes from a case called Duskey v. United States, and the test is whether Mr. Salvi has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.
Q And in conducting an evaluation to determine competency to stand trial, other than determining whether the individual has some kind of mental illness, could you tell us what is involved in making that evaluation?
A. Yes.
In making an evaluation of competent to stand trial as an examiner, I would want to look at those various aspects of things to show whether Mr. Salvi did or did not have a true understanding of the proceedings against him whether he was able to rationally cooperate with counsel. And ability to cooperate with counsel would include such issues as ability to testify relevantly, has ability to give a valid account of what happened, has ability to understand his legal jeopardy, has an understanding of whether he trusts counsel, and is willing to cooperate in making decisions, such as whether to accept a sanity defense or not. So there would be a number of different areas that would go into that leg of the test regarding ability to rationally cooperate with counsel.
Q Now sir, based on your, the information that you had accumulated with regard to Mr. Salvi, your interviews with him in January and June, are you able to form an opinion based on reasonable, with reasonable certainty as to whether Mr. Salvi is competent to stand trial at this time?
A. Yes, I am.
Q And what is that opinion, sir?
A. It's my opinion with reasonable medical certainty that at the present time Mr. Salvi is not competent to stand trial.
Q Would you tell us, sir, the basis of your opinion.
A. Yes.
First I should indicate that there are a number of things which Mr. Salvi is capable of doing. At times he is capable of holding rational conversations. In many areas he does understand the proceedings against him and the specific charges against him. So I'm not suggesting that he's so ill that he is totally without this ability. However, in my opinion the number of serious deficits are so great that he cannot receive a fair trial in the sense of his ability to cooperate with counsel and his lack of rational understanding of the proceedings against him because of the failure to appreciate his jeopardy.
Q And do you have an opinion on why he cannot do so, sir?
A. Yes.
Specifically, there are four areas which I consider significant in Mr. Salvi's inability to cooperate with his counsel. The first is that Mr. Salvi is so preoccupied with getting out his schizophrenic delusional message, this is the major purpose for his living. That supersedes his own desire to avoid conviction and if necessary receive the death penalty. I understand that the death penalty does not exist in Massachusetts, but he nonetheless has sought it if he were convicted.
Specifically, I found when I observed Mr. Salvi and Miss Basil for a 25 minute period in my second interview, where she was going over with him some very important aspects of legal issues, he was distracted, he kept coming back to have you released my statement, have you released my statement, when are you going to release my statement, and was so preoccupied with that he was unable to attend to the critical issues where his attorney was trying to gain information from him and get him to understand certain legal issues.
Other examples of how important getting the psychiatric message is that he made the statement to me, quote, "My main concern is that if they do away with the case," and that referred to being found not competent to stand trial, "no one will be able to buy, sell, trade," closed quotes. So this is an example of his persecution delusions, the credit card, mark of the beast, the need to get out that message which he sees as so important. That is more important than whether or not he goes to trial or the outcome of the trial.
Another example of how important that message is is that he wrote a letter to the FBI unbeknownst to his attorneys seeking to plea bargain for the death penalty under Federal charges where the death penalty is possible and the FBI then turned over the letter to his attorneys, and when Miss Basil confronted him with why were you writing to the FBI about plea bargaining, why weren't you working with me to accomplish that, his response was not to give a good answer and refocus on release of the statement. So here's an example, again, where the importance of the statement supersedes whether he gets good representation or not.
When I ask him "If you could have different attorneys who were willing to release the statement," and I'm referring to those as containing psychotic material, because that is my view, "If you could have attorneys who would be less qualified but would be willing to release the statement, would that, would you be willing to accept less good attorneys who would release the statement," and his answer was "Yes." Another example of how getting out the psychiatric material is more important than protecting his own jeopardy in court.
Furthermore, the Christmas Eve outburst which I have already described is an example of how important it was to get the message out. He was willing to dismiss his attorneys if necessary to accomplish his goal.
And it's also my understanding that in May he had like a minor scene in a courtroom where he was trying to release the statements, and even though he was admonished to be quiet by the judge, he was focused on releasing his statements.
The second area of why he is not able to cooperate with counsel has to do with the fact that Mr. Salvi has not revealed his account of events during the crime, where he was for those two or three days, what his state of mind was, any potential witnesses to call, and he also declines to answer any questions about earlier psychiatric symptoms. So when both his attorney and I have approached Mr. Salvi and said, Cindy Lockshire says you talked about an angel and demon on your shoulder, is that true or not, his answer is that is a private matter, or no comment, or I won't discuss that, or that is not relevant. So in terms of building a mental illness defense, which is a critical issue potentially in this trial, his unwillingness to discuss any past psychiatric symptoms is, along with his unwillingness to give an account of the crime, is a critical issue because effectively that causes him to waive the benefits of counsel. If he is unwilling to tell counsel what happened, his counsel cannot rationally decide what affirmative defense might be offered, what plea bargain should or should not be entered into if the counsel does not know what happened and what his state of mind was.
Mr. Salvi also told me, and has told his attorneys, and told Dr. Haycock numerous times that he plans a defense of silence and when he's questioned about that, first of all when his attorneys say, there is no such thing as defense of silence, you know there are certain affirmative defenses, a defense of silence is not valid defense, he nonetheless persists, as he does in other delusional beliefs. And when I pressed him on this he said, quote, "I would rather not acknowledge the prosecution," closed quoted. That rigid kind of thinking, rather than acknowledge the prosecution, again, suggests he does not fully appreciate the jeopardy he is in because he is also fixed in his ideas.

I also found out supporting the idea that he doesn't fully appreciate his legal jeopardy the fact that he is unrealistically optimistic in spite of what I have been told is overwhelming evidence that he did the crime with regard to fingerprints, ballistic evidence , eyewitnesses, he still is unrealistically optimistic that he will not be convicted simply using a defense of silence.

Dr. Haycock in his examination of him made the statement he does not show any anxiety regarding his legal issues. Most people facing life in prison do show some anxiety regarding their legal situation. And when his attorneys press him for information and say, Mr. Salvi I can't defend you, you know, I can't provide a good defense if you don't provide this information. Mr. Salvi's repeated response is, quote, "What will be, will be," closed quote. So in other words, there is a kind of acceptance of whatever will happen to him because his principal goal is getting out the message. And again if you can understand this from his psychotic vantage point, if he believes as he said on the video tape that if Catholics will read his message and rise up and stop being persecuted and start printing money, he would have a chance to create a saving the homes and the lives and the better health and financial well being of millions of people, compared to that psychotic goal which he unrealistically believes may occur by simply releasing his statement, his own jeopardy, or going to prison, or being executed is small potatoes in his mind next to his psychotic goal.

Q Dr. Resnick, during the time period in which his attorneys have sought, and are still seeking his account of his whereabouts from approximately December 29 to January Second of 1995, 94-95, did you become aware that the attorneys had asked him to write out if he wouldn't tell them a statement relative to his whereabouts during that period of time and his activities? Are you aware of that?

A Yes. They did ask him to write out a statement and he delayed and deferred for quite a while and then finally turned over to them a statement which refers to a Mr. Booshaudde.

Q And is it your understanding that this statement was given to his attorneys as that account?

A It's my understanding that he represented to them at least by their account that this was a statement that they had been requesting of him.

Q From reading Dr. Haycock's reports are you also familiar with the fact that he later denied to Dr. Haycock this had anything to do with his whereabouts?

A I am aware when Dr. Haycock questioned him about that he gave a different version of events than his attorneys did.

Q Let me show you this document and ask you if you recognize it, sir.

A Yes. This is the document which his attorneys have represented Mr. Salvi turned over to them after they had strongly requested information about his whereabouts at the time of the crime.

Mr. LACHANCE: I'd ask that be marked and introduced as an exhibit.

MR. KIVLAN: We have no objection.

THE COURT: Exhibit Six.
[Exhibit No. 6, Statement, was marked and received in evidence]

What is the date of that from other materials approximately.
MR. LACHANCE: The end of March.
THE CLERK: There is no date on it.
MR. LACHANCE: It's undated. But I can. The first line is "Mister Booshaudde was invaded and turning red in a dark corner of his cobwebbed basement." That is the first line of the document to identify it.
THE COURT: Yes.
MR. LACHANCE: I'm sorry. I have been told by counsel for Mr. Salvi that it was March 24, 1995.

THE COURT: Yes.
Q Have you read that document, sir?
A Yes, I have.
Q Does that document, by the way, tell us anything about Mr. Salvi's mental illness?
A Yes, it does.
Q What does it tell us?
A Mr. Salvi's writings show his disturbed mental process, the same way as his speech does, since when someone has disturbed thoughts, you would expect that to express itself both in written and oral form. And this document, rather than giving an account of his whereabouts, goes back to his themes of Catholic persecution, only it is, some aspects of it are even more bizarre than other statements that he's made.
Q Would you read the first page and a half to us that involves what happened to Mr. Booshaudde on that morning.
A All right.
MR. KIVLAN: Objection, Your Honor. It's an exhibit.
THE COURT: I will allow it.
THE WITNESS: I would just warn the Court Reporter that some of this does not make sense so you will have to be attentive to it, but I will try to read it.
THE COURT: Just read it slowly so the Court Reporter will take it down.
THE WITNESS: Thank you.
A. "Mr. Booshaudde was invaded and turning red in a dark corner of his cobwebbed basement. It was !:30 in the morning. Things that morning were not going well in the attic of Mister Booshaudde's mind. By about 11:47 Mister began to shake with violent convulsions due to the 39 bobby pins which he had stuck through his penis due to a mortgage which annoyed the Mister. Mister had all he could do not think about his redheaded step child which was about to send him the bill from St. John's Prep. Three weeks ago Mister Booshaudde was asked to take one night a week and go to a prayer conference organized by lamb chop. Mister recently found out that his genetic son which receives assistance from Uncle Sam due to the fact that if they did not let Mister's genetic son collect, receive assistance that members of congress would take a vacation. Does God Yeahwah, "Y-E- A-H-W-A-H" love Mister Booshaudde."
Q. You consider that as evidence of the way Mr. Salvi thinks, the way he organizes his thought?
A. At times. At times Mr. Salvi is able to have a rational interchange. At times he is irrational.
Q. With respect to Mr. Salvi's competence, did you consider whether or not Mr. Salvi would be able to evaluate and cooperate with his counsel in selecting relevant defenses, for example, a defense of not guilty by reason of insanity?
A. Yes, I did consider that.
Q. And would he be able to do something like that, is he able to?
A. It's my opinion that this is another area in which Mr. Salvi is not able to cooperate with counsel in a rational manner. Mr. Salvi has no insight into the fact that he is mentally ill. He believes he has no mental illness whatsoever and since a possible insanity defense may be critical in a trial in which a man has a serious disturbance in his thinking, and in which there is strong evidence that he committed a crime, his ability to consider an insanity defense would be important, and Mr. Salvi has been counseled about this by Dr. Haycock, seems to have some trouble understanding the distinction between competent to stand trial and sanity at the time of the act in spite of repeated explanations and separate from confusion about it categorically rejects an insanity defense not for rational reasons, such as I would rather be in a prison than a psychiatric hospital, or I don't want the stigma of being in a psychiatric hospital, but simply because he has no insight in the fact that he is seriously mentally ill so he's rejecting it for irrational reasons and that could seriously interfere with his attorney's ability to gather relevant information about insanity defense and work with him towards his presentation without so antagonizing him that he would become even less cooperative.
Q. Did you consider whether or not Mr. Salvi would be able to testify relevantly in his own behalf?
A. Yes. I did consider that issue carefully and I considered that part of what would be necessary to cooperate with counsel.
Q. And in your opinion is he able to do so?
A. It's my opinion that Mr. Salvi would not be able to take the stand and testify relevantly. This is in part due to his idiosyncratic, rigid, over elaborative disorganized speech. It's also because of the preeminent importance of getting out his psychotic message that rather than answer questions relevantly on direct or cross he would use such a forum to convey to Catholics the importance of his psychotic message about Catholics being persecuted. And I believe he would refuse to answer some questions, as he has repeatedly for me, Dr. Haycock, and his attorneys and that he would use this defense of silence, which again is not rationally made, and the second video clip illustrates briefly from my first interview an example of how I am trying to gather data from him and he is not answering my questions.
MR. LACHANCE: If Your Honor please at this point we would like to play the second portion.
THE COURT: How long is this.
MR. LACHANCE: Probably five to ten minutes.
THE COURT: Yes. Let's proceed.
MR. CARNEY: Your Honor may we move again, please.
THE COURT: Yes. Mr. LaChance, is this a part of Exhibit 4A.
MR. LACHANCE: Pardon me.
THE COURT: This is a part of--
MR. LACHANCE: Yes. This is still the second exhibit.
[The tape was played in open court]
THE COURT: Now Mr. LaChance do you have specific questions relating to this excerpt, questions for the witness.
MR. LACHANCE: Yes.
THE COURT: How long will that take.
MR. LACHANCE: Just a couple of minutes.
Q. Dr. Resnick, what does that illustrate with respect to his ability to cooperate with counsel?
A. Yes. There are a number of areas in the interview where I had difficulty. I just selected this one short excerpt to show the extent to which he wanted to focus on his own Catholic persecution themes and how he actually threatened to leave the interview, terminate the interview when I tried to press him on information that I considered relevant that I needed to gather during the interview. So I just wanted to illustrate that he is prepared to break off the interview or go into long silences rather than answer questions that he doesn't want to answer.
MR. LACHANCE: You Honor that is all I have on the interview.
THE COURT: We will stop here for our morning recess.
MR. KIVLAN: Before we take the recess, Your Honor, just to save time after the recess, counsel, the first thing I would like to do is ask you to consider a motion to strike this witness' testimony. I didn't hear a word, it was all conclusory opinions, and not a word as to what the issue in this case is, which is whether or not Salvi has the ability to communicate these things to his attorneys. The second thing I would ask Your Honor is that there were several item mentioned here, statements that had been made by Salvi allegedly that we don't have copies of, and specifically, just to save time, at the recess--
THE COURT: You might go through that with Mr. LaChance.
MR. KIVLAN: I did. Mr. LaChance told me he couldn't give it to me because apparently counsel objects to us getting these statements.
THE COURT: Yes.
MR. KIVLAN: I want to make you aware of this to save time.
THE COURT: Yes.
MR. KIVLAN: I don't know when you want to deal with that. After the recess, obviously. You are not finished with this witness.
MR. LACHANCE: I am not finished with the witness.
THE COURT: I won't entertain your motion relating to the testimony at this time.
MR. KIVLAN: Okay.
THE COURT: We will stop here. We will resume in about half an hour.
RECESS

(After Recess)

MR. KIVLAN: If I may, Your Honor, I want to report to you Mr. LaChance did give us a transcript of another interview by a doctor in this case and we appreciate that. We do understand though that there is another videotaped interview of Mr. Salvi and at the appropriate time we would like to address you about getting that just to save time here.
THE COURT: Yes. You may proceed, Mr. LaChance.
MR. LACHANCE: Yes, Your Honor.

DIRECT EXAMINATION (Continued)
Q. [By Mr. LaChance] Dr. Resnick before the break you had been telling us about Mr. Salvi not being able to testify relevant. I now ask you whether you formed an opinion whether Mr. Salvi rationally understands the proceedings against him?
A. Yes. It's my opinion that Mr. Salvi, although does understand some areas, has some serious defects in his rational understanding of the proceedings against him.
Q. Would you tell us what those serious defects are and your perception about them?
A. I don't think that Mr. Salvi fully appreciates the adversarial nature of the proceedings. Let me give an example if this. In talking about selection of juries, at one point he said "I think that juries can be quick to jump on a Christian," suggesting he was concerned about a fair trial.
Then we talked about what kind of jurors he might want, he said he would like one juror from each different denomination and a juror who is a KKK, a juror who is a free mason, one juror represents one denomination within Christianity. And when I tried to clarify this because he gave quite a rambling response, I tried to clarify this, he said that that would be a fair trial and it wouldn't be fair if he was able to get twelve Christians.
The point here is that rather than understanding the adversarial nature of the fact that the prosecution may seek jurors who are not favorable to the defense, and vice versa, he felt a need to create fairness in the jury to the extent that he could control it failing to appreciate the adversarial nature of the proceedings.
Q. Are there additional factors that you took into consideration.
A. Yes.
As I mentioned earlier, he is unrealistically optimistic and I think therefore does not appreciate the full jeopardy he's in, and when weighing the death penalty decision, he said to Dr. Haycock that he made the decision, quote, based on, quote "finances, time and Catholic tax dollars." And I think that is an example of where he's allowing his psychotic belief system, more concerned about Catholics, and Catholic tax dollars than he is about protecting his own interests about whether he views the death penalty as a good decision for himself. It ties in with his psychotic thinking about persecution of Catholics. So that globally I think his decision making ability is influenced by the psychotic belief systems so that even though he might intellectually be able to say here's what a judge does, here's what I am charged with, and he can do that for the most part, except in some very small areas. But globally I think that his psychotic, delusional, peculiar idiosyncratic over-elaborative concrete thinking does not allow him to fully and rationally appreciate his own danger in the current situation.
Q. Specifically, with respect to what you termed unrealistic optimism about the outcome of this case, is there any indication that that optimism comes from some either hope or belief that there will be divine intervention in his case?
A. Not explicitly. I did ask about that. He doesn't believe that God will protect him from conviction. But nonetheless he does relate it to fate that, that he thinks he's less likely rather than more likely to be convicted.
Q. Now doctor you have gone through at some length your perception of Mr. Salvi's inability to perform within the legal system in the role in which he is cast. Are there possible explanations for why, for example, he won't cooperate specifically with his lawyers, why he won't divulge to them the information they need to proceed in their defense, why he won't talk to them about, for example, any indicia of mental illness?
A. Yes. Unfortunately, Your Honor, this is an area that his lawyers, Dr. Haycock, myself, everyone who has pressed Mr. Salvi to try and get an explanation, even if you say Mr. Salvi, we understand you won't discuss it, just tell us why you won't discuss it, to run up against a brick wall. So I cannot say categorically the reason.
However, my opinion with reasonable medical certainty is that it is more likely than not that his psychotic thinking and his psychotic message so dominate his thinking that it does not allow him to make a rational decision to reveal information or not reveal information.
There are some areas where he clearly can. For example, when he had some, got into some scuffles at Bridgewater, he was able to logically and clearly explain to Dr. Haycock what happened in those.
So he has the verbal skills to relate an event that he wishes to relate. On the other hand, when it comes to this particular crime, which has special meaning, which he won't make clear under the veil of defense of silence, he, in my opinion, it's more probable that he has some psychotic explanation underlying it which he is unwilling to share.
THE COURT: Some psychotic explanation for why he won't speak; is that what you are saying?
THE WITNESS: Yes.
Q. Doctor, if Mr. Salvi is presently incompetent to stand trial are there measures that could be taken to restore him to competency, or to have some likelihood of enabling him to participate in the process as it's intended?
A. Yes.
It's my opinion that if Mr. Salvi is given a trial of four months of antipsychotic medication, that it is more likely than not that this schizophrenic illness will respond, that he'll become less psychotic. It is not something will go away totally, but he will come sufficiently with it that he can participate in his trial. So I think that he is restorable and therefore it's my opinion that he should be given that trial of medication because he is much more likely at that point to be able to rationally participate in his trial compared to now.
Q Do all schizophrenics respond to antipsychotic medication?
A. 70 to 80 percent of schizophrenics respond to antipsychotic medication. There is a minority that are treatment resistant. And there are some newer medications, like cloxspen. So some of them can also respond to traditional antipsychotic.
70 to 80 percent can be expected to significantly improve.
Q You indicated as to Dr. Haycock, in his reports, has diagnosed Mr. Salvi as having schizotypal personality disorder. Assume for the moment that is true, do individuals who have schizotypal personality disorder respond to antipsychotic medication?
A. Yes.
The older name for schizotypal personality was simple schizophrenia. The line between schizotypal and schizophrenia is a murky line, and although it is more resistant than undifferentiated schizophrenia, some schizotypal personalities respond to medication. So even if that were the diagnosis, which is not my own view, there is still a chance he would respond and be able to participate more rationally in his defense.
MR. LACHANCE: Thank you, Doctor.
I have no further questions.
MR. KIVLAN: Once again I want to renew our request for the video tape that Dr. Resnick relied on in part for his testimony and subject to getting those at whatever time you see fit, I would hope by the lunch break, if you would consider that we get that in the meantime, we could save some time.

CROSS EXAMINATION
Q [By Mr. Kivlan} Dr. Resnick, you are from Cleveland; is that right, sir?
A. That is correct.
Q And when were you first contacted by the defense in this case?
A. It was within a few days before my January 15th visit because I know I flew out the first weekend chance I had.
Q Were you contacted in Cleveland because you have some particular or unique theory or psychiatry, or application of psychiatry as it applies to psychiatric application?
A. I am afraid you would have to ask the attorney why they contacted me.
Q Well doctor, are you aware that there are many psychiatrists and psychologists, forensic psychiatrists and psychologists in the Boston area?
A. Yes, I am.
Q Do you know there is an organization, just the organization alone has a hundred seventy?
A. No, I didn't know that number.
Q Did counsel indicate to you that they were having difficulty getting more than one or two that were willing to testify with respect to the defendant's incompetency?
MR. LACHANCE: Objection. Relevance.
THE COURT: Sustained.
Q Dr. Haycock you would agree there are many theories, or schooling, if you will, of psychiatry; is that right, sir?
A. I'm sorry, I am Dr. Resnick.
MR. KIVLAN: I'm sorry. Did I say Haycock? Strike that.
Q You would agree that there are many schoolings of psychiatry, or theories of psychiatry, right sir?
A. There are certainly many theories of psychiatric treatment. The diagnostic manual with regard to diagnosis is pretty well accepted by psychiatrists.
Q You have written extensively on this subject, yourself, haven't you?
A. On what subject?
Q On the subject of psychiatry, and the schools of thought, or schools or theories of psychiatric theories; is that right?
A. I have not written extensively on that.
Q Well you have written to some extent; is that fair to say?
A. As I mentioned it in the article, yes.
Q Did you write an article entitled "Perceptions of Psychiatric Testimony Historical Perspective on The Hysterical Invective"; did you write that article?
A. Yes, I did.
Q Was that summary of the conflicts and criticisms within it and without the psychiatric community relating to psychiatry in general and in particular forensic psychiatry?
A. No.
Q Is that a summary?
A. No. That is not how I characterize it.
Q Does it contain a summary of what people within the psychiatric community and researchers have related with respect to psychiatric theory?
A. If you show me a part, I would be glad to answer. I don't recall.
Q Let's get specific, Doctor, all right?
A. Yes.
Q Did you write that there are over four hundred theories of psychiatric treatment in this article?
A. Show me the Psychiatric.
Q I am directing your attention to Page 210. Different schools of psychiatry. Psychiatric inferences about clinical data vary with different schools of psychiatry. There are at least 416 theories of psychiatric treatment in this country. Did you make that statement?
A. Yes.
Q And with respect to the psychiatric treatment, and theories of psychiatric treatment, the defense bar is well aware of what theories exist and what psychiatrists apply more broadly or more narrowly, are they not?
MR. LACHANCE: Objection.
THE COURT: Sustained.
Q Research has also shown doctor that psychiatry is viewed within and without the community by many credible sources to be an art rather than a science or a discipline of medicine. Is that right?
MR. LACHANCE: Objection.
THE COURT: Overruled.
You may answer.
A. I view psychiatry --
Q I didn't ask what you viewed.
THE COURT: Respond directly to the question.
MR. KIVLAN: Right.
A. I am sorry. Would you repeat the question?
Q Are there those within the psychiatric community and researchers you have made references to in this article who believe that psychiatry, or forensic psychiatry in particular is not a precise discipline of medicine, or an exact science, but an art?
A. I would agree that it's not a precise discipline.
Q And with respect to forensic psychiatric testimony, there are those who think that its reliability is no greater than that of astrology, for example; is that right, sir?
A. Some authors have written about that.
MR. LACHANCE: Objection.
THE COURT: Overruled.
Q And with respect to your particular theories with respect to psychiatry, Doctor, you have also written extensively with respect to your theories as they apply to competency; is that correct?
A. I would not say that I have put forth any theory of competency.
Q Well you have written numerous articles about malingering as it pertains to competency; is that right?
A. Yes. I wouldn't call that a theory of competence.
Q With respect to malingering, in lay-man's terms, does that mean faking essentially?
A. Yes.
Q And with respect to faking, there are known cases of people who have faked psychiatrists; is that right?
A. Absolutely.
Q And obviously when people fake a psychiatrist, the psychiatrist doesn't know if they are successfully faking; is that correct?
A.. That is correct.
Q Now with respect to psychiatry, once again, and your articles pertaining to it, psychiatrists are called upon forensically to make predictions or form opinions relating to a person's state of mind, just as you attempted to do here today; is that right?
A. Yes.
Q And oftentimes forensic psychiatrists are called upon to make predictions with respect to dangerousness, is that right, among other things?
A. Yes.
Q And with respect to psychiatric predictions, Doctor, and you made some today, have you made statements that psychiatrists cannot predict the future any more than a third grade teacher? Have you made statements of that kind?
A. No. First of all I didn't make --
Q No, no. I am asking you whether or not you made that specific statement. Did you?
A. I am sorry, if your request --
Q No. I am asking you.
THE COURT: Sir, sir. If you cannot answer it yes or no, please say so.
A. I can't answer yes or no.
MR. CARNEY: I object.
THE COURT: No, sir. Mr. Lachance is handling this matter.
MR. CARNEY: He is acting amicus. I am still acting as my client's attorney.
THE COURT: I will give you a chance in this hearing.
MR. LACHANCE: I object to not hearing from defendant's counsel.
THE COURT: Thank you.
So do you understand, sir?
THE WITNESS: If I can't answer it yes or no, I will --
THE COURT: Yes. If you cannot, then say so.
THE WITNESS: Okay.
Q I will ask you again, Doctor, have you ever made a statement that psychiatrists can no more predict the future than a third grade teacher?
A. I do not recall making that statement.
Q So it's possible you did make that statement?
A. Anything is possible.
MR. KIVLAN: Just a moment, Your honor.
THE COURT: Yes.
Q With respect to predicting dangerousness, Doctor, or making predictions relating to the future, psychiatrists in some studies have been known to be wrong as many as two out of three times, or nineteen out of twenty times; is that right?
A. Yes.
MR. LACHANCE: Your Honor I object. Ask to be heard.
THE COURT: Overruled.
You can come to side bar if you want to be heard.
MR. LACHANCE: Just for a moment.
MR. KIVLAN: I will move on, Your Honor.
Q You answered the question, right, the answer was yes.
A. Yes.
Q And with respect to theories of psychiatry, and the examination of criminal defendants, you have already told us that psychiatrists have been fooled; is that right?
A. With regard to faking, yes.
Q And there are numerous cases where that has been proven beyond any doubt; isn't that right?
A. I don't know about being proven, but I certainly believe it's true, yes.
Q You are familiar with the Bianchi hillside strangler case; is that right?
A. Yes.
Q And it was proven beyond any doubt that Mr. Bianchi was faking and fooled several psychiatrists into thinking he had multiple personality disorder when he didn't is that right?
A. Yes.
Q There have been numerous other defendants who have also succeeded in doing that; is that right, sir?
A. In my opinion there have.
Q And as a matter of fact, Doctor, the conflict within the community, itself, the psychiatric community is such that some researchers have called for a ban on all forensic psychiatric testimony; isn't that true?
A. Yes.
Q And you have participated in such discussions yourself, haven't you?
A. Yes.
Q And wasn't there an article by a science publication in which you were quoted extensively with respect to your views concerning this?
A. I'm sure there was. I don't recall the details now.
Q Well do you remember a story in the Washington Post relating to a story in a science fiction magazine that was entitled "Researchers False Psychiatric Testimony"?
A. I don't recall the details but I do recall the interview, yes.
Q And do you recall making this quote in that article.
Dr. Phillip Resnick, a psychiatrist at the University Hospital in Cleveland, an expert on the use of psychiatric testimony, said all of these arguments have been made before and the courts have chosen not to respond. The supreme court has said something like although we acknowledge that psychiatrists are more often wrong then right, they are not always wrong so we should not exclude them.
Is that your statement?
A. That is a quote of the U.S. Supreme Court.
Q That is a quote that you gave in response to this research into forensic psychiatric testimony; is that right?
A. That is correct.
Q Now doctor with respect to the opinion that you offered the court today, with respect to Mr. Salvi's competency, you used the term "reasonable medical certainty"; is that right?
A. Yes.
Q And is that basically 50-50, or 51 percent, is that your definition?
A. It varies from one jurisdiction to another.
Q But your view of the definitions, let me ask you, more probable than not, legal meaning of probability 51 percent, is that your definition of reasonable medical certainty?
A. No. It's a legally defined term that varies by jurisdiction. In some jurisdictions it's more probable than not.
Q You speak frequently with respect to this subject, don't you?
A. Which subject.
Q The subject of forensic psychiatry?
A. Yes.
Q Excuse me.
And did you give a presentation to the American Psychiatric Association, in May of 1984, "The Psychiatric as an Expert Witness"?
A. Yes.
Q And do you recall what you said during that course?
A. May 1984. It's not fresh in my mind.
Q Let's see if I can help you.
Directing your attention to Page 4.
"Statement of Opinion with Reasonable Medical Certainty. Definition more probable than not. Legal meaning of probability 51 percent."
Is that what you stated in this course outline?
A. Yes. But that is an outline. That is not what I stated.
Q I didn't state it. It's written.
Q Well, all right. It's written. It's a written statement that you made; is that right?
A. Well, that is an outline actually. When I spoke about it, I elaborated.
Q Did you write this?
A. I wrote it as an outline, yes.
Q And there is an outline of approximately, let's get exactly how many, well there are numbered differently. There is an appendix here. But did you discuss other matters that you thought were important with respect to offering opinions with respect to forensic psychiatry in this course outline?
A. Yes.
Q And did you attach an appendix to that materials that you thought were important in connection with offering opinions on forensic psychiatry?
A. There are a number of appendices.
Q And these were attached because you thought they were important with respect to offering testimony on forensic psychiatry; is that right?
A. Yes. I thought they were educational.
Q Did you include several pages of how you should dress? Did you?
A. I think two or three.
Q And what kind of suit you should wear; is that right?
A. Yes. That's right.
Q And what sort of things you should carry with you when you take the stand, did you?
A. I don't recall that.
Q Well do you recall giving advice on never bring an umbrella with you, or words to that effect?
A. That was directed to short male expert witnesses, yes.
Q And suggestions you made about not having facial hair. Did you recommend that one not have facial hair if they were offering a psychiatric opinion?
A. That's correct.
Q And did you also discuss what you should wear in the context of who the judge was, or who the jurors may be? Did you?
A. Jurors respond to different types of clothing. Yes.
Q And did you make suggestions as to what you should wear with respect to different ethnic groups or people of economic class?
A. Yes.
Q You though this was important in offering opinions on forensic psychiatry in court; is that right?
A. That's right, in educating novices.
Q. And so having in mind your definition of the weight your opinion should carry with this Court, you were contacted sometime in January to conduct an evaluation of this defendant; is that right?
MR. LACHANCE: Objection, Your Honor. I don't understand the first part.
THE COURT: I will allow the question.
Q. January of 1995?
A. I don't understand the weight had to do with the date I was contacted.
Q. Well doctor let's just ask you simply when were you first contacted? Do you have a date?
A. I told you it was a few days before January 15, 1995.
Q. And at that time you told us on direct that defense counsel told you that they were exploring a mental illness defense and they wanted you to come and interview their client; is that right?
A. Yes.
Q. And did they tell you that time that their client, Mr. Salvi, had refused to give them an account of his activity on or around December 30 of 1994?
A. I don't recall if that was discussed in the initial conversation or not.
Q. And you have already related to us, Doctor, what materials were given to you. Were these materials given to you before your interview with Salvi on January 15?
A. Some were before. Others came piecemeal after that interview.
Q. What materials did you have when you interviewed Salvi on January 15?
A. I had an early prepared life chronology but then it was elaborated in more detail thereafter.
Q. And this is a life chronology you got from whom?
A. The defense attorneys.
Q. And who actually authored, or made this life chronology?
A. It was sent to me by Janice Basil. I am not positive if she had an assistant or she did it herself.
Q. Did you have anything else when you went into this first interview?
A. My recollection is I had very little. All the materials I had were faxed to me because I went within a few days of the phone call.
Q. And well let me ask you first, before we go on to what else you obtained. When did you form your opinion in this case that Mr. Salvi was not competent to stand trial? What was the date that you formed that opinion?
A. It was after my second interview.
Q. And when was your second interview?
A. It was in May. I can give you the exact date if you like. I'm sorry, the second interview was June 18.
Q. So how many interviews in total did you have with Mr. Salvi?
A. Two.
Q. So there was the one on January 15 and another one on June 18?
A. Yes.
Q. And it's your testimony that you did not form your opinion until June 18?
A. Correct.
Q. And what materials did you have in your possession on June 18 when you formed your opinion?
A. Substantially more information. I had all but a few documents I was subsequently given.
Q. What information? Be specific. What?
A. I had the life--
Q. By what? I am asking you what reports, specifically, you had, what written materials, specifically, you had?
A. Right. I understand your question.
Q. All right?
A. I have the life chronology prepared by the attorneys. I had the March 30th court order ordering competency assessment. I had a letter from Miss Basil outlining the difficulties she was experiencing in gathering information.
I had the interview transcript of Mr. Salvi done by Dr. Shouten and Dr. Kinscheff. I have the psychological testing reports of April 15th by Dr. Kinscheff. I had the two reports of Dr. Haycock dates May 8 and May 26. I had interview summaries of Cindy Lockshire, Mark Roberts, Arlen Anderson, Peter McKinnon, Kevin Lonegan, Lieutenant Colin Forbes, Maureen Essigmann, and as well as transcript of testimony from Cindy Lockshire, Arlen Anderson, Peter McKinnon, Lieutenant Forbes and Janet Callahan. I had statements released by Mr. Salvi. I had the interview of John and Marie Salvi by Miss Basil.
Q. All right. So you had all of these materials because they would aid you in forming your opinion; is that right?
A. That was the background. Yes.
Q. Does it contain background information? It contained an account of the events that occurred over the last few weeks or months or even years of Mister Salvi's life; is that right?
A. Yes.
Q. And you used those materials in forming your opinion; is that right?
A. Along with my interviews, yes.
Q. Did they submit to you any testimony or police reports giving an account of the events that occurred on December 30, 1994?
A. Yes.
Q. What police reports did they give you, or grand jury minutes pertaining to that?
A. Actually I don't have these listed here but I did review those.
Q. Did you read them?
A. Yes.
Q. You did read them?
A. Yes.
Q. You didn't think they were important to list there?
A. I think I put them in a different pile and forgot to list it, yes.
Q. Now when you first were hired to come in and evaluate Mr. Salvi, you first contact with him was on the 15th, as you have told us, of January; is that right?
A. Yes.
Q. And that is in the form of momentary payment; is that right?
A. Being paid for my time, yes.
Q. And also in connection with cases of this type, sir, you mention that you teach; is that right?
A. Yes.
Q. And you write; is that correct?
A. Yes.
Q. And you have published 23 chapters of a book; is that correct?
A. 23 book chapters.
Q. Now with respect to the interview that took place on January 15, are you telling this judge that after the two-and-a-half hours of taped interview on January 15 you could not form an opinion as to Mr. Salvi's competency or incompetency; is that your testimony?
A. Yes.
Q. So it was not--
A. I did not, anyway--
Q You did not.
And you first said you could not; is that right?
A. Right. I wasn't asked.
Q Now correct me if I'm wrong, Doctor. Is it fair to state that by the time you attended this interview on January 15, that the focus of this issue relating to Mr. Salvi's alleged incompetency was his refusal, or as you would put it. inability to give an account or a narrative of his doings at the time of the alleged offense. Is that what the main focus was?
A. No.
Q. Well did you understand at some point that, whether it was at that interview, or later, that there would be an issue relating to competency?
A. Before my June interview I did.
Q And when you went into this January interview, you went into that interview, and in fact asked numerous questions relating to competency, did you not?
A. I did.
Q And you testified, correct me if I'm wrong, on direct, that you, it occurred to you that you should inquire about competency; is that right?
A. Yes.
Q. And it occurred to you, you said, correct me if I'm wrong, as early as January 15th; is that right?
A. Yes.
Q. And did we understand your testimony on direct that by and large, in substance, you formed an opinion based on what you alleged were delusions that Mr. Salvi had, that these delusions interfered with his ability to communicate with counsel and give a narrative; is that right?
A. That is one aspect of it, yes.
Q. And well.
At some point prior to coming here today have you reviewed all of the filings in this case? You said you saw one court order. Have you reviewed all the filings?
A. No.
Q. You have talked extensively with counsel, have you not?
A. Depends on what you call extensively.
Q. When you boil it all down, Doctor, has counsel indicated to you over, and over again that Salvi won't give them an account of his doings on or about December 30th, the date of the offenses. Is that right?
A. That was one major issue.
Q. And that major issue, according to them, affected what they wanted to do with respect to advising Mr. Salvi on issues pertaining to the trail of his case. Is that right?
A. You'd have to ask them.
Q. Well Dr. Resnick you are not suggesting to this Court that you--would you agree with me, sir that the main focus of your examination of Salvi, and of this hearing is over Salvi's refusal to give an account of his doings on December 30th?
A. One focus. I would not say--
Q. Would you agree, sir, that it's the main focus of what this issue?
A. No. I would not agree with that.
Q All right. Would you--you have already told us doctor that you believe that his failure to give this narrative, or his refusal to give this narrative has, according to counsel, caused them problems in giving him advice. Is that right?
A. In mustering a possible defense, yes.
Q. That is with respect to choosing any defense if any Mr. Salvi might wish to assert in this case; is that right?
A. Yes.
Q. Now in forming your opinion that Mr. Salvi doesn't have the ability to provide this information to counsel, you, correct me if I'm wrong, have opined that because he's delusional, he has delusions, this makes him unable to give an account of himself to his attorneys. Is that your testimony?
A. Well, unable, or the delusions cause him to be unwilling to.
Q. And by and large you are, in your opinion the alleged delusions, correct me if I'm wrong, are all of these statements that Mr. Salvi made with respect to his beliefs about the Catholic Church, persecutions of Catholics, Catholics and all of those statements he made in those two excerpts that were played in court this morning; is that right?
A. That is a major thing to his delusions, yes.
Q. That is the major thrust of what you claim to be Mr. Salvi's delusions; is that right?
A. Yes. But it's not total, but that is a major thrust, yes.
Q. And with respect to these delusions, you stated that, or you asked Mr. Salvi over, and over, and over again whether or not he heard voices from anyone, whether or not God was speaking to him, whether or not he believed he was the leader of the Catholic Church, or words to that effect, did you not?
A. I certainly made inquiry in those areas, yes.
Q And just so I understand you clearly, if he had responded that he was hearing voices, or that he thought he was God, or the leader of the church, or that he was hearing the voice of God, you were asking those questions because you would believe that the answers to those would be that he clearly indicate that he was delusional; is that right?
Let me withdraw the question. It was poorly worded.
If Salvi--you asked Salvi numerous times whether or not he heard voices; is that right?
A. Yes.
Q. And whether or not God was speaking to him in these voices; is that right, sir?
A. Whether it was a direct communication or indirect, yes.
Q. And one of reasons that you were asking those questions is that if he had told you yes, that he was hearing those voices, that would certainly explicitly be a delusion?
A. No, it would not. That would be--
Q. It would not be a delusion?
A. No.
It would be hallucination.
Q It would be hallucination. All right.
Are they sometimes referred to by some in psychiatric circles as delusions, as well as?
A. Absolutely not.
Q. Are you familiar with all of the writings pertaining to psychiatric theory?
A. I happen to have studies the phenomenon of hallucinations and delusions and they are referred--
Q. You have testified previously, haven't you?
A. A number of times.
Q. Among those times you have been hired to testify on behalf of other psychiatrists who have been civilly charged with malpractice and the like; isn't that right?
A. That is correct.
Q. You have testified numerous times and hired to testify in criminal cases; is that right?
A. That's correct.
Q. And you Dr. Haycock--I keep saying Dr. Haycock--Dr. Resnick have made, have been inquired of numerous times in the past about what authorities you have read with respect to psychiatry; is that right?
A. I didn't get the question.
Q. What authorities, what psychiatric authorities that you have read. Haven't you been asked about that before?
A. Yeah. It's usually phrased what I would consider an authority in the area.
Q. You have responded in the past, haven't you, that you don't consider any forensic psychiatric publication to be authoritative other that you own; right?
A. No. I wouldn't say. I would not phrase it like that.
Q. Well you didn't phrase it like that.
Have you ever testified substantially that you don't read other psychiatric authorities?
A. No.
Q. You have testified that?
A. Absolutely not.
Q. We will get back to that.
Now to get back to the point that we are at here, Doctor. You refer to these as being hallucinations if Salvi had responded that he heard the voices of God; is that right?
A. Those would be hallucinations.
Q. And the reason you were asking those questions, and you asked them over, and over, again, is that if he had, to use your words, hallucinations, that would clearly indicate that he had an ability--inability to tell counsel a narrative of the events that occurred in this case; is that correct?
A. That is incorrect.
Q. Is the reason you are saying that doctor--are you familiar with the case State of Ohio v. Malcolm?
A. No.
Q. No. Never heard of the case.
State of Ohio v. Kent Malcolm.
A. Oh, yes. I testified in that case.
Q. Sure. And that was a case, correct me if I'm wrong, where a defendant who had gone into a library and randomly shot three women in a library was charged with first degree murder and ultimately convicted of first degree murder; is that right?
A. Yes.
Q. And that was a defendant who had organic brain damage, is that right, sir?
A. Yes.
Q. And it was a defendant who thought that God was speaking to him through various voices, through birds, through rocks and the like; is that right?
A. It was a number of years ago. I don't recall the details. I believe that is.
Q. Do you remember your first interview with Mr. Malcolm? Did you interview him through the walls of the jail cell because he was so violent?
A. I don't recall.
Q. In any case, do you recall that you told the court in that case that in your opinion these hallucinations did not interfere with Mr. Malcolm's competency abilities? Did you tell the court that?
A. Certainly there is nothing inconsistent about hallucinations and competence to stand trial.
Q. You will agree with me, sir, that Mr. Salvi at no time told you that God was speaking to him, or that he was hearing voices; is that right?
A. That's right.
Q. The only thing Mr. Salvi told you was his views about Catholic theory; is that right?
A. No. It is not the only thing.
Q. I'm sorry. I used the wrong term.
His views about Catholics and how Catholics were being persecuted, and the statements that are already marked as an exhibit in this video tape?
A. Is that all he told me? No, that is not all he told me.
Q. I recognize that, sir. I am asking you at any time in any conversation you ever had with Salvi did he ever tell you that he was hearing voices, or God was speaking to him through rocks and birds? Did he ever tell you that?
A. No, he did not.
Q. As a matter of fact what he did tell you, he believed Catholics were being persecuted; is that right?
A. He told me that.
Q. There are other people who share those beliefs; isn't that true?
A. Not in the way he does.
Q. Doctor are there other people who share the belief that Catholics are being persecuted?
A. Yes.
Q. As a matter of fact, are you familiar with any of the writings or pamphlets or materials Salvi had in his possession when he was arrested?
A. I have glance at them.
Q. And throughout those materials are writings from various sources expressing the same kind of beliefs that Salvi offered during your interviews with him; isn't that right.
MR. LACHANCE: Objection.
A. No.
THE COURT: Overruled.
You may answer, sir.
Your answer was no?
THE WITNESS: Yes.
Q. Well, Doctor.
MR. KIVLAN: Excuse me, Your Honor. I have another folder I don't have with me. I will just move on. I will have it after lunch though.
Q. You did read some of those materials; is that right?
A. Yes.
Q. And some of the materials were pamphlets called, for example, "The Fatima Crusader," and like things from Catholic organizations, or organizations purporting to be Catholic; is that right?
A. Yes.
Q. And there were also materials from Human Life International, a non-sectarian organization that is described as antiabortion; is that right?
A. Yes.
Q. And there were other writings in Mr. Salvi's possession, including the bible; is that right?
A. Yes.
Q. And there are many biblical references, and reference to bibles that discuss the anti-Christ, the mark of the beast, and the like; isn't that right, sir?
A. Yes.
Q. So these are views shared by others, including the authors of the bible; is that right, sir?
A. I certainly would not agree that Mr. Salvi's views about Catholic persecution, the mark of the beast, printing money are shared by the authors of the bible.
Q. Well, Dr. Resnick, there are, what the question was is there are materials from individuals and publications and organizations that are out there that make reference and interpretation from the bible that use those very same terms, mark of the beast, the anti-Christ, persecution of Catholics. Is that correct?
A. That's correct.
Q. You understood my question.
Now Doctor, so it's your testimony that these are all delusions; is that right?
A. What are all delusions.
Q. All of the statements that Mr. Salvi made to you pertaining to the persecution of Catholics, having a Catholic government within a government, and those kinds of statements that you have already referred to on your direct. Is that right?
A. Yes. It's my view that his--
Q. No. I just asked you do you view those statements that Salvi made as delusions?
A. When you say "those statements," you are not specific, so I can't answer you.
Q. Doctor didn't I specifically direct your attention to the statements that you referred to where Salvi considered Catholics were being persecuted, there should be a government within a government, and statement mark of the beast, the anti-Christ? You made reference to those statements, did you not, sir?
A. No. I never talked about a government within a government.
Q. All right. Is that in substance what he said in part of his interview?
A. That is not how I would describe the substance.
Q. Well doctor look. Those excerpts of those interviews are what you rely on in part to form an opinion that those are delusional thoughts?
A. Yes. That is correct.
Q. And they are marked as exhibits. This is the clerk, that is an exhibit.
THE CLERK: 4A.
MR. KIVLAN: 4A.
Q. Now you have defined for the court that a delusion is a false belied that cannot be changed by logic; is that right?
A. Yes.
Q. Now doctor you will agree that there are many different faiths and religions in this world, aren't there?
A. Yes.
Q. And there are many different beliefs that cannot be explained in the views of some as being rational. Is that fair to say?
A. Yes.
Q. And as a matter of fact Salvi at one point asked you if you believed in faith healing; is that right?
A. Yes.
Q. And you stated that you did believe in faith healing; is that right?
A. Yes.
Q. Now in connection once again with all of your interviews of Salvi, at no time like Mr. Malcolm did he tell you that God was talking to him, or he was hearing voices of God, or anyone else for that matter, through rocks and birds; is that right?
A. That is correct.
Q. Or in any form; is that right?
A. Just through the bible.
Q. And don't most people believe that God speaks through the bible, or at least those who believe in the bible?
A. Yes.
Q. Now in connection with forming your opinion, you selectively indicated to us this morning what things that you did consider and you have made general reference to police reports and grand jury testimony, is that right, that you have also read?
A. Yes.
Q. And you asked Mr. Salvi repeatedly whether or not he had any psychiatric history; is that right?
A. Yes.
Q. And he had no psychiatric history; is that right? He had no history of treatment by psychiatrists or psychologists; is that right?
A. Correct.
Q. He grew up in various places and graduated from high school in Naples, Florida; is that right?
A. Yes.
Q. And he went to Community College in Naples, Florida; is that right?
A. Yes.
Q. And he graduated and passed an exam to be a fire fighter there; is that right?
A. Yes.
Q. And while he grew up and while he was in high school no treatment by any psychiatrists or psychologists, is that right, much less institutionalization or medication; is that right?
A. Yes.
Q. He was engaged though in deliberate criminal conduct, though, wasn't he?
A. There are no alleged.
Q. Sure.
Well you relied, in part, on Mr. Roberts' statements pertaining to Mr. Salvi; is that right?
A. Yes.
Q. And you know that while Salvi was in high school he stole at least one automobile. You know that?
A. Yes.
Q. And he switched the VIN numbers on the automobile to conceal what he had done?
A. Mr. Roberts reported that. He was never convicted of this I understand.
Q. Have you read the testimony of Salvi, Sr., Salvi's father. Did you read his testimony?
A. I don't recall. No. I don't think I did.
Q. You never read his testimony.
Do you know that Salvi, Sr. testified before the grand jury his son stole this car?
A. No.
Q. Do you know that Salvi owned a .22 Ruger rifle when he was in Florida?
A. Yes.
Q. Do you know he had unlawfully converted that by putting a silencer, an extended barrel on it?
A. Yes.
Q. That was just willful criminal conduct. Is that right, sir?
A. Sounds like it.
Q. And do you know that Mr. Salvi was the subject of an investigation pertaining to a fire at his father's business?
A. Yes.
Q. And that he had made statements prior to the fire that he intended to set the place on fire. Do you know that?
A: Yes, I did.
Q. And you know when Salvi was up here in Massachusetts and then later in New Hampshire, he had jobs; right?
A. Yes, he had jobs.
Q. And at the time of these offenses he was working at a beauty shop in Hampton, New Hampshire; is that right?
A. Yes.
Q. And he was also attending a beauty academy, a beauty school; is that right?
A. I don't know he completed or not. I know he attended.
Q. He was living on his own in Hampton, New Hampshire, he had an apartment, is that right, sir?
A. Yes.
Q. He also had an automobile and driver's license; is that correct?
A. Yes.
Q. And incidentally, that automobile that he stole in Naples, Florida, do you know whether or not his parents let him keep that vehicle?
A. They did.
Q. And they paid the car dealership so he wouldn't be prosecuted. Do you know that?
A. Yes, I did.
Q. Do you know that he used that car to eventually trade in and buy the truck that was used to carry him around to complete these offenses? Do you know that?
A. I didn't know that in particular, no.
Q. And did you familiarize yourself with the police reports and the grand jury minutes pertaining to the facts of this case?
A. Yes.
Q. And are you aware, just in a summary fashion, that Mr. Salvi had been associated with some alleged anti- abortion groups some months prior to these offenses?
A. Yes.
Q, And were you aware that he made statements as early as July of 1994 that they weren't doing enough, or words to that effect?
A. Yes.
Q. And is that when he moved to New Hampshire, to your knowledge?
A. I don't recall specifically.
Q. And when he got to New Hampshire, weeks, months before these murders, did you know that Mr. Salvi had gone and purchased a .22 handgun and the .22 caliber Ruger rifle that was used to commit these murders and shootings? Do you know that?
A. Yes.
Q. And do you know that he had purchased hundreds of rounds of hollow point bullets during that period of time?
A. Yes.
Q. And do you know that he had caused to be converted this .22 Ruger rifle into an assault weapon by having a collapsible stock; do you know that?
A. Yes.
Q. And he attached magazines together to make them carry more rounds. Do you know that?
A. Yes.
Q. Do you know he acquired maps of the access and egress from these clinics in Brookline that he eventually committed these murders? Do you know that?
A. Yes.
Q. And do you know that on December 3O, 1994 that he traveled in that truck to Brookline with those weapons concealed in a gym bag or a duffle bag. Do you know that?
A. Yes.
Q. And do you know that he successfully entered both of those clinics and executed employees from those clinics and shot and seriously wounded other persons present?
A. Yes.
Q. Do you know that?
A. Uhum.
Q. And did you know he successfully escaped from those locations?
A. Yes.
Q. And do you know that after he escaped that he had changed his appearance and used a different name in effectuating his escape?
A. Yes.
THE COURT: Mr. Kivlan we will have to stop soon. Do you want to get to a certain point.
MR. KIVLAN: All right. Well.
Q. And Doctor, by the way, the first time he refused to talk to anyone about these events was not with you, or any other doctors, or his attorneys, is that right; are you familiar with the police reports?
A. I recall that he certainly did not discuss the crimes with the police.
Q. And well. Just one more question before the recess.
Are you suggesting to this Court that this man who was competent enough to execute that plan, and carry out that plan to murder those people in Brookline, and get away with it, is not competent to face responsibility for it in this courtroom in a trial? Is that what your testimony is?
A. Yes.
MR. LACHANCE: Objection, Your Honor. Argumentative and also confuses the two, competency with criminal responsibility.
THE COURT: Sustained.
Is that all for now.
MR. KIVLAN: Just one other question.
Q. Dr. Resnick, is it your testimony that the man that was competent enough to carry out those acts is not competent enough to stand trial?
A. Yes.
MR. KIVLAN: All right. I would like to resume after lunch.
THE COURT: Yes, sir.
Let me ask you one thing, sir, before we break.
Q. [By the Court] Does the absence of hallucination by the defendant mean anything to you in terms of your diagnosis?
A. There is some history that he had hallucinations as reported by his parents and another person.
Q. I am asking you--one minute, sir.
I am asking you with regard to your interviews. I haven't seen the tapes. I don't know what it says. I am assuming he gives you no evidence of hallucinations at those times; is that correct?
A. Yes.
Q. Did that mean something to you?
A. Yes. It meant that either he had hallucinations and wasn't admitting them was one possibility, or he was genuinely free of hallucinations at this time.
Q. Now if he were free of hallucinations at that time, does that lead you any place in terms of your diagnosis?
A. No. Because schizophrenia requires delusions or hallucinations. It doesn't require both. So even if we discounted all reports of hallucinations, it would change neither the diagnosis nor the opinion regarding competency.
THE COURT: We will stop here and resume at two o'clock.
MR. LACHANCE: May we approach.
THE COURT: Approach side bar with regard to your matter.
MR. CARNEY: May I approach, also.
THE COURT: To listen, sir, not to interject.

AT THE BENCH:
THE COURT: Gentlemen, Mr. Kivlan.
MR. KIVLAN: Yes, Your Honor.
Among other things, there is so many things we don't have here, but I understand your view on this case.
THE COURT: Yes, sir.
MR. KIVLAN: One thing we don't have, but it seems we should, is apparently Mr. Lachance has been kind enough to tell me there is a videotaped interview, another one by Dr. Shouten, so obviously we would like an opportunity to have that.
THE COURT: Is Dr. Shouten going to be called.
MR. LACHANCE: I am not positive at this time. It is my present intention of calling him. I may not. Depends on.
THE COURT: Well if you are going to call him, I am going to make that available to the Commonwealth. This is the day of the hearing, so I assume he is on call to come in if he is not here in the courtroom now.
MR. LACHANCE: Yes, he is, Your Honor.
What I can tell you, I don't have physical possession of the tape, the videotape. I provided them what I had. But I don't have physical possession of it.
THE COURT: Now let me hear from--
MR. LACHANCE: I do not intend to play portions of the tape.
THE COURT: He's going to testify concerning his interviews that are recorded.
MR. LACHANCE: That is correct.
THE COURT: On that tape.
Now you made the tape, the two tapes that we have here in evidence available to the Commonwealth, Dr. Resnick's examination.
MR. LACHANCE: Right. The reason I did that specifically was because it was my position that since we were intending to play a portion of the tape, they were entitled to see the entire tape so they could cross-examine on the entire tape.
THE COURT: So you don't intend to make, to put in evidence any of the videotape of whatever the tape is of Dr. Shouten.
MR. LACHANCE: No, I don't. So that is--
THE COURT: So that is the reason you withheld this.
MR. LACHANCE: I have taken the position since Your Honor appointed me as amicus counsel, that these exhibits and so forth are basically the product and work product of defense counsel.
THE COURT: I know I haven't ordered it, sir. I am not suggesting I did.
MR. LACHANCE: I want Your Honor to understand. I have taken the position that unless I have their permission to do it, I can't turn over anything because it's essentially work product. If Your Honor tells me to do it, or they release it, then I feel I can do it. But because it is work product, and some of it maybe covered by the attorney/client privilege, I have taken the position that I cannot on my own disclose or turn over that information.
THE COURT: Yes, sir. I understand.
Now, Mr. Kivlan, you had asked for the interviews, the tapes and the like relative to both of these.
MR. KIVLAN: Right.
THE COURT: I had refused your request.
MR. KIVLAN: Right.
THE COURT: Has something changed with regard to Dr. Shouten's testimony, understanding the distinction between that testimony and the testimony of the doctor presently on the stand, that the defense having offered, that interview having been played in court.
MR. KIVLAN: Right.
I recognize Your Honor's view of this, and I respect that, but I hope you would understand that it's very difficult for us to cross-examine people when we don't have a clue as to what it is they are going to say and then eventually we have people taking the stand who are apparently going to have used some of these materials to form opinions and we don't have access to them. And if Dr. Shouten, or as this witness, for example--
THE COURT: Did he use, did Dr. Resnick use Dr. Shouten's material?
MR. KIVLAN: Yes. He said he did.
THE WITNESS: No, I didn't.
THE COURT: Sir, please.
You can step down, Doctor, if you would.
MR. KIVLAN: He listed it as one of the things he considered.
MR. LACHANCE: He turned over the transcript.
MR. KIVLAN: And he did turn over the transcript.
THE COURT: Yes.
MR. KIVLAN: So we do have that.
There were several other things he listed he relied on we don't have.
MS. HINKLE: Three other things Dr. Resnick indicated he relied on, one apparent life chronology appears to be the version, and second more complete version sent to him by Miss Basil. That is one item we don't have the doctor appears to have relied on.
Another item we don't have, Dr. Resnick testified he relied on May 31, 1995 letter from Miss Basil to Dr. Resnick apparently, or sent to him at some point indicating difficulty she had getting information from the defendant.
And then a record of an interview apparently by counsel, I don't know Miss Basil, or Mr. Carney, or both, but interview by defense counsel of Mr. and Mrs. Salvi.
There also is reference to Maureen Essigmann.
MS. BASIL: That is your witness.
THE COURT: I can't hear you.
MS. BASIL: That was a police report provided by the Commonwealth.
MR. KIVLAN: It is the first of three items Dr. Resnick specifically indicated he relied on we still don't have.
THE COURT: Tell me what was made available to you as of today in preparation for this hearing.
MR. KIVLAN: The only thing that has been made available to us, other than the materials that went to Bridgewater, and the jail records, to the best of my knowledge is the video tape that they sought to introduce today, transcript of Dr. Shouten's testimony.
MS. HINKLE: Interview we got.
THE COURT: A transcript.
MR. KIVLAN: It's not testimony; just an interview.
THE COURT: An interview by--
MR. KIVLAN: Shouten and the defendant.
THE COURT: You have that.
MR. KIVLAN: And Dr. Kinscheff's report.
THE COURT: Who's Dr. Kinscheff?
MR. LACHANCE: He was the psychologist that administered the psychological testing and also sat in on the two or three interviews, clinic interviews with the defendant.
THE COURT: You have some idea of what Dr. Shouten will say if he is called.
MR. KIVLAN: Yes, we do. We are just getting it now, but we do.
But what we don't have, Your Honor, and there seems, well, I don't want to characterize it, but you are being asked by amicus counsel, or defense counsel to find a defendant incompetent and you are learning that video tapes--
THE COURT: I am being asked to assess his competency and make a decision.
MR. KIVLAN: Right. They take the position he is not competent. That is clear.
THE COURT: Yes.
MR. KIVLAN: And you are being asked to do that with selective information. They only want to give you what they want to give you and then they want to hold back. I would think it would be kind of important to Your Honor to have a video tape of another interview of this defendant, maybe it would not be, in terms of you making a finding, or at least draw an inference from the fact they won't give it to you perhaps it's not helpful to their cause. But.
MR. LACHANCE: It's boring. I fell asleep during it the first time I watched it.
MR. KIVLAN: All I can do is ask.
THE COURT: No. I won't vary any previous rulings on this issue.
If there is something new.
MR. KIVLAN: The three items we didn't know today, the three items I just related, life chronology, a letter indicating the difficulty defense is having getting information from the defendant, and a parents interview with Mr. Salvi's parents by defense counsel. Dr. Resnick, they were all sent to him and part of the things he formed the basis, the things he just testified about regarding the defendant's competence, none of them are items we even knew about until today.
THE COURT: You have those in your custody.
MR. LACHANCE: Yes, I do. I believe I do.
THE COURT: I am going to allow that. This is historical information, is it not?
MR. LACHANCE: Yes. Essentially.
THE COURT: Factual, not opinions, relating, as I understand it, it's some biographical information, is it not, life story or whatever.
MR. LACHANCE: Life chronology. My understanding is basically sentences of a number of interviews with other people, some of these documents including grand jury minutes, and so forth, in an attempt to--
THE COURT: I don't want to have to inspect it. I thought it was a chronology of events in his life.
MR. LACHANCE: That is correct.
THE COURT: Simply factual data, is that -- you have seen it, sir. Is that your understanding or does it contain additional opinions and the like.
MR. LACHANCE: I don't think it contains, my memory is it doesn't contain specific opinions. That it contains factual information which is summarized and chronologized from other sources.
THE COURT: What is the other data you are seeking?
MS. HINKLE: The one that might be most difficult, the last. The third item is recorded interview with Mr. and Mrs. Salvi. I believe the doctor said by Miss Basil. I am not sure I have that right. I think he said defense counsel.
THE COURT: Is that so?
MR. LACHANCE: Yeah. There is an interview. I don't think it's by Miss Basil.
It is by a social worker, or somebody we had gotten who was sent out to take the interview on their behalf.
THE COURT: You are speaking of a licensed social worker who's doing work on behalf of the defense.
MR. LACHANCE: Yes.
THE COURT: And what else are you seeking?
MS. HINKLE: The third in sequence, Your Honor, is what Dr. Resnick referred to as May 31, 1995 letter from Miss Basil. I don't know id it's to him or someone else.
THE COURT: Relating to the difficulties.
No. I would permit the biography or whatever it is called, the life chronology, and not the other items.
Is there anything else?
MR. LACHANCE: I just have a question for scheduling.
Dr. Kinscheff is here. I don't know how much longer Dr. Kivlan has with this witness.
Frankly, I was a little bit surprised how they decided to proceed. I thought we were going to have Dr. Haycock this morning. I put in a call to have Dr. Kinscheff come over here to be available.
THE COURT: How much further do you have with Dr. Resnick?
MR. KIVLAN: Maybe an hour, half an hour.
THE COURT: An hour.
MR. KIVLAN: Outside.
THE COURT: Do you have any redirect?
MR. LACHANCE: Maybe ten or fifteen minutes of redirect.
THE COURT: Are we talking from 2:00 to 2:45 or 3:00? Give me some idea.
MR. KIVLAN: Just knowing the realities, that is why I said an hour.
THE COURT: Say two to three.
And would you call after that the doctor you just mentioned?
MR. LACHANCE: Right. I didn't know if Mr. Kivlan had a couple hours more of cross.
THE COURT: No. He said one hour.
MR. LACHANCE: Did--he didn't?
THE COURT: Less than an hour and this witness will be completed.
MR. LACHANCE: Then I have Dr. Kinscheff available.
THE COURT: You intent to go through him today? Is it brief or something that is going to take is into tomorrow, assuming we stop as four or four-thirty.
MR. LACHANCE: Probably get through the direct today.
THE COURT: Do you expect another witness, Dr. Shouten at this time?
MR. LACHANCE: Yes.
THE COURT: Will that go through the morning tomorrow?
MR. LACHANCE: I think probably it will.
THE COURT: Are we talking about two days worth of hearings here?
MR. LACHANCE: I think so.
THE COURT: Full day tomorrow,
MS. HINKLE: I would expect so.
THE COURT: You going into Wednesday?
MR. KIVLAN: I wouldn't think so.
THE COURT: Let's operate on that schedule. Anything else?
MR. CARNEY: May I make a statement for the record.
THE COURT: No, sir. Not in this matter.
END OF BENCH

RECESS
(After Recess)
DEFENDANT SALVI: Your Honor, I would like to--
THE COURT: Sir, please be seated.
DEFENDANT SALVI: I wish to address you with the following statement.
COURT: No.
DEFENDANT SALVI: I would like to--
THE COURT: Take a seat.
DEFENDANT SALVI: I have a right to speak if I am brought to this court. I'd like to say something.
THE COURT: Sir, you cannot speak.
THE DEFENDANT: Why?
THE COURT: You cannot.
DEFENDANT SALVI: I am being brought here. May I address you.
THE COURT: If you want to stay in the courtroom--
DEFENDANT SALVI: No. I don't want to stay in the courtroom. This is ridiculous. I have the right to speak.
THE COURT: Sir, you will have to leave.
DEFENDANT SALVI: I am asking for your--
THE COURT: Speak to Mr. Lachance.
DEFENDANT SALVI: Mr. Lachance may I have the right to speak and address the judge.
THE COURT: No, sir.
MR. LACHANCE: I can't give you the right to speak. If you would like to say something to me in private.
THE COURT: You can use the room behind.
Please do that.

RECESS
IN THE LOBBY
THE CLERK: This is Commonwealth v. John Salvi, Docket No. 99518 through 99523 and we are in the judge's lobby. Just for the purpose of the record, Your Honor, Mr. Salvi is not present. I don't know whether his presence is being waived.
THE COURT: Mr. Lachance I wanted to know what the problem was, whether it had been resolved.
MR. CARNEY: May I object for the record for having this conference without my client's presence.
THE COURT: Yes.
MR. CARNEY: And with my not being able to participate.
THE COURT: Yes, sir. Is there some issue that needs to be brought to my attention in the courtroom or.
MR. LACHANCE: As follow, Your Honor.
Mr. Salvi wished to inform the court, frankly, the people in the courtroom about, I think it was a reaction to some of Kivlan's questions of the psychiatrist, about him not having any criminal record in Florida, not having a criminal record in Massachusetts, and then he wanted to ask Your Honor a series of questions and to read a statement substantially in accordance.
THE COURT: I am not asking you necessarily what he said to you, sir. I am asking you whether there is something that needs to be addressed at this hearing concerning this and whether you feel he is able to conduct himself properly. I am not interested in your individual conversations.
MR. LACHANCE: I'm sorry.
THE COURT: I need to know what steps need to be taken in the hearing, whether he is able to conduct himself properly in your opinion now.
MR. LACHANCE: I think if Your Honor would allow me to make an offer of proof as to what he would have said on the record, and to introduce the written statement that he would have, would have read, that would substantially quiet things down.
THE COURT: Would you suggest that we do that in the courtroom where he can see what you are doing.
MR. LACHANCE: Absolutely.
THE COURT: Not hearing it but he can see and probably inform him that is what you are doing.
MR. LACHANCE: Absolutely, Your Honor.
THE COURT: Let's do that.
MR. KIVLAN: Do that side bar.
THE COURT: Yes, at the side bar.
MR. LACHANCE: Could we hold on for just a second.
THE COURT: Yes.
MR. LACHANCE: The first question Your Honor asked me. I think he is very emotional and pent up right now with respect to his inability to get his point, if you will, or his ability to in a sense participate in these proceedings, and I think if we were to do it at side bar, even with him present, that, you know, that would not be enough. I think he wants to put, would like this information public given the fact that, of Mr. Kivlan's questions having to go public.
THE COURT: I believe that is something that is within, I am not suggesting you can do it, within your authority to redirect if this is something you feel should be brought out, some inaccuracy, whatever, should be brought to the Court's attention, this is within your judgment to bring to the Court in any way you see fit in this type of hearing. Statements that he wants to release to the press, I am not interested in hearing.
MR. LACHANCE: This is not to be released to the press.
What I would ask permission to do is make an offer to proof and to state that Mr. Salvi would have said that he has no Florida criminal record, nor Massachusetts criminal record, and no demerits on his driver's license, and then to have this paper marked for identification as the information which he wished to convey to the Court and not have it read.
THE COURT: Do you have any objection to that, sir?
MR. KIVLAN: The first thing I would say, Your Honor, I never stated he had a record. I simply--
THE COURT: Well.
MR. KIVLAN: I don't have any objection to that.
THE COURT: Let's proceed in that fashion.
MR. KIVLAN: Could I just be heard briefly.
THE COURT: Yes.
MR. KIVLAN: I think one of the problems we are having with this defendant, frankly, Your Honor, is he does feel he has not been able to participate in the proceedings and he's made it clear over and over again to everyone he has ever talked to that he is competent and he wants an opportunity.--
THE COURT: I understand. I think you should do this in the courtroom if you want to interject something, some point.
MR. KIVLAN: I am wondering at some point if the court might consider advising him that he will have an opportunity to be heard. It may not be now, it may not be tomorrow, but it may be at some point.
THE COURT: I don't want to do that. I want to leave it to Mr. Lachance if he wants to make any kind of presentation on his behalf. I will leave it to him.
MS. HINKLE: Can we get a copy of whatever is going to be marked for identification?
THE COURT: Yes. You can certainly see it at a later point in a recess. If you need a copy, sure.
END OF LOBBY

IN OPEN COURT
THE COURT: Yes, Mr. Lachance.
MR. LACHANCE: May it please the Court, I would request permission to make a statement and an offer of proof to the Court at this time.
THE COURT: Yes.
MR. LACHANCE: I would like the record to reflect, although we do have cameras in the courtroom, there is a contemporaneous record, but I would like the record to reflect the outburst of Mr. Salvi and the fact that it needed three court officers to handle him and remove him from the courtroom.
I would make the offer of proof that what Mr. Salvi wished to convey to the Court was that he has no Florida criminal record, he has no Massachusetts criminal record, he has no demerits on his Massachusetts license, he has no demerits on his Florida license.
He also wished to convey some information to the court which has been written out and I would like to ask it be marked as an exhibit in this case, specifically--
THE COURT: Has the Commonwealth seen this?
MR. LACHANCE: --specifically as to what the cause and nature of the outburst were.

[Shown to the Commonwealth]

MS. HINKLE: No, Your Honor, we hadn't seen it.
MR. KIVLAN: We hadn't seen it. May we just take a moment.
THE COURT: Yes.

[Pause]

THE COURT: Is there any objection?
MR. KIVLAN: To this, Your Honor, we do object. Yes. I don't know that you.

[Shown to the Court]

THE COURT: Now there was a proposal by Mr. Lachance while we spoke in the lobby that this be offered as, for identification only. You did not voice any objection at that time. Is there something--
MR. KIVLAN: We hadn't seen that Your Honor. All we had heard about was the other thing.
I mean it's obvious this has been provoked by Mr. Salvi believing he hasn't had an opportunity to be heard, and at some point in time, if he sees fit, he obviously will be heard, but in the meantime, submitting pieces of paper to the Court, I don't think is appropriate.
THE COURT: Sir, I won't admit this in evidence but we will mark it for identification. If there is any further statement you would like to make, you can.
MR. LACHANCE: I asked it be marked for identification in the lobby, I recognize that.
THE COURT: Yes.
MR. LACHANCE: I thought better of it because I think it directly relates, that some of the information on it, especially the second paragraph.
THE COURT: You are offering it in evidence as evidence relative to this hearing.
MR. LACHANCE: Yes, I am, Your Honor.
THE COURT: What is the relevance of it?
MR. LACHANCE: The relevance is, one of the things seems to me Your Honor has to look at in accordance with the court order is Mr. Salvi's ability to be in a courtroom and to behave himself while he is in the courtroom during the trial.
The fact of the outburst precipitated--
THE COURT: I will hear you further. Let me read through it, sir. I haven't had a chance to.

(Pause)

THE COURT: All right. Go in briefly, sir, if you would.
MR. LACHANCE: What I had indicated, Your Honor, I think it's, I think it's directly relevant, because that paper, plus what I said was the precipitating cause of the outburst, I think it's relevant in this proceeding as to whether or not he's competent, and specifically relevant to the issue of whether or not he's able to maintain his ability to listen and be provoked by the proceedings, if you will, to these outbursts. And that I believe explains why he made the outburst.
THE COURT: Sir, I will receive it for that purpose. But this isn't the way the Court would normally receive evidence on this issue, the defendant making outbursts. That isn't the way we normally proceed.
MR. KIVLAN: May I ask you not make a decision to admit it as an exhibit until the close of the hearing and maybe by that time you will know more about whether it should be admitted or not it seems to me.
THE COURT: Sir you can move to strike at the close of the hearing if you like.
MR. KIVLAN: All right.
THE COURT: Let's move on. And mark it.
THE CLERK: As exhibit.
THE COURT: As exhibit.

[Exhibit No. 7, Statement, was marked
and received in evidence]
THE COURT: Mr. Lachance, is there anything of substance you would like to put on the record that we discussed. I believe that is the extent of the lobby in the absence of the defendant.
MR. LACHANCE: Yes, it is, Your Honor.
MR. KIVLAN: If I may, Your Honor, at the lunch break, at side bar, you asked us about time considerations.
THE COURT: Yes.
MR. KIVLAN: And I did forget when you asked me, that the actual interview by Dr. Resnick of Salvi, the first one on January 15, is a two-and-a-half hour interview and we only heard about twenty minutes of it.
THE COURT: Yes. And you intend to offer a portion of it.
MR. KIVLAN: Yes. And whatever time you see fit to listen to that. But I had forgotten about that and you should see the whole thing, whenever you.
THE COURT: You are asking me to view it in the course of these proceedings rather than at a later time.
MR. KIVLAN: Well, it would probably be better, since it was played in part this morning, that you hear it all today.
THE COURT: There is some specific portion you'd like me to hear rather than the entire remainder of the transcript and to expedite matters.
MR. KIVLAN: I don't know we are able to do that mechanically nor, Your Honor. And it would give us an opportunity as well to, so you would know what we were talking about when we ask these questions of Dr. Resnick if you have actually seen what we are talking about.
THE COURT: Are you asking me to hear the entire transcript now before you complete your examinations?
MR. KIVLAN: I am, Your Honor. Yes.
THE COURT: It's another hour at least.
MR. KIVLAN: It would be, yes.
THE COURT: Let's proceed.
MR. LACHANCE: Your Honor.
THE COURT: Yes, sir.
MR. LACHANCE: Could we approach side bar for one second, please.
THE COURT: Yes.

AT THE BENCH:
MR. LACHANCE: If that is the case, I would ask that Dr. Resnick could be excused, because it's obvious, if we are going to see an hour or so of video tape, and the rest of Mr. Kivlan's examination, there doesn't seem to be a reason to keep him around if he's got other business to attend to.
THE COURT: If your estimate as to what it would take, the amount of time it would take to cross-examine is correct, then Mr. Kivlan I suspect--
MS. HINKLE: It would be about an hour-and-a-half.
MR. KIVLAN: That is true.
MR. LACHANCE: So that is 4:00 o'clock.
THE COURT: We could go to four-thirty.
MR. LACHANCE: It's up to you.
THE COURT: Yes. I think I would like to be able to do that, if you move in that direction.
MR. KIVLAN: I will try.
END OF BENCH.
MR. LACHANCE: Judge there is a transcript available.
THE COURT: I wouldn't mind looking at it as we go along.
MR. LACHANCE: Here's a copy of the transcript.
THE COURT: Thank you.
MR. KIVLAN: May we stipulate that that is a transcript of this interview.
MR. LACHANCE: Yes, it is.
MR. KIVLAN: May it be marked as an exhibit, then.
MR. LACHANCE: No objection.

[Exhibit No. 8, Transcript,
was marked and received in evidence]
[The tape was played in open court]

THE COURT: Sir, you might release your witness.
Are you ready.

CROSS-EXAMINATION (Continued)
Q [By Mr. Kivlan] Dr. Resnick, just to tie up a couple of loose ends from this morning, before we moved to what you described as the central issue here, do you recall that I asked you this morning about whether or not you had ever made the statement psychiatrists have no better ability to guess what someone will do in the future than does a third grade teacher; do you remember my asking you that question?
A. Yes.
Q Do you remember stating "I don't recall," then, do you remember stating?
A. Right.
Q I show you this article from the Washington Post.
MR. LACHANCE: This has absolutely nothing to do, he's talking about predicting something in the future. We are talking competency in the present.
THE COURT: Sir you can move to strike. I would like to hear this question. If it's not relevant, bring it to my attention.
MR. LACHANCE: All right.
Q I show you this Washington Post article and ask you whether or not you are the underlined portion, you are the same Dr. Resnick who was quoted in that article?
A. Yes. I was incorrectly quoted.
Q You do agree that you were quoted and those are the exact words, "Psychiatrists have no better ability to guess what someone will do in the future than does a third grade teacher," that was the quote in the Washington Post?
A. Right.
Q You say that was incorrect?
A. Yes.
It was a high school teacher.
Q High school teacher?
A. Yes.
Q Now I also asked you this morning about whether or not you considered any other psychiatric authorities as being authoritative, and whether or not you read other psychiatric books, and you stated that you did; is that right?
A. I stated that I--
Q Correct me if I'm wrong. Did you state that you do read other psychiatric textbooks and authorities?
A. Of course I read them.
Q And how long -- do you consider them authorities?
A. Not necessarily.
Q How long -- when did you begin reading other psychiatric texts and authorities?
A. First day of medical school.
Q Well, do you remember testifying in a malpractice case in Missouri with respect to a Tizler?
A. Yes.
Q And Dr. Tizler was the defendant in a civil suit involving a mistake made by him; right?
A. That was the allegation.
Q Well there was no question that Dr. Tizler had released a patient from a state mental hospital stating that he was not homicidal or suicidal and ten days later he stabbed his girlfriend, killed his neighbor and tried to kill himself; right?
MR. LACHANCE: I object. This has no relevance to the issue of competency, nor does Dr. Resnick's--
THE COURT: Overruled.
Q Is that what the case was about?
A. Yes.
Q And during that trial do you recall being asked this question:
"Now you don't recognize any psychiatric books as authorities; is that right?"
And your answer: "That's right."
Do you remember that question and that answer?
A. May I see that in context.
Q Certainly.
MR. LACHANCE: What page, please.
MR. KIVLAN: Page 5-55.
Q Was that question put to you and did you give that answer?
A. It refers to something earlier.
Q But doctor you were asked that question and did you give that answer, that's the question?
A. I did give that answer but the context is, I'd have to go through and see what--
Q Once again, do you agree with me, and there was a Court Reporter, like this Court Reporter sitting right here; right?
A. Yes.
Q At the time of this trial?
A. Yes.
Q The question was:
"Now you don't recognize any psychiatric books as authorities; is that right?" And your answer was: "That's right."
Is that correct?
A. Yes.
Q Is that accurately stated here?
A. That's correct.
Q One other loose and from this morning.
You--have you actually reviewed the materials that Salvi had in his truck and in his apartment up in Hampton, New Hampshire?
A. I saw some. I don't know if I had a complete batch of that.
MR. KIVLAN: Counsel.
MR. LACHANCE: I don't recall specifically seeing that article. I am sure I didn't give it to the doctor. We were given Friday afternoon about 5 o'clock--
THE COURT: The doctor can respond he has not seen it if he has not.
Q All right, Doctor, I am going to show you a pamphlet entitled--or it's from the Fatima Center, and it was sent to Mr. Salvi when he was living in Everett, in the early part of 1994. Now do you recall seeing this pamphlet before?
A. No, I don't.
Q Do you recall any of the pamphlets or materials that were found in Salvi's apartment or his truck?
A. I did get a chance to glance at some last night but I understand that they were only provided on Friday. I didn't get a chance to see any until last night so I saw very little.
Q Well they were only provided to Mr. Lachance. Do you know how long counsel for the defendant have had them?
A. No, I don't.
Q Well, in any case, have you looked at inventories of materials that were seized from Mr. Salvi's truck and from his house?
A. I don't recall. If I did, it was some time ago.
Q Are you aware that he had publications such as the Fatima Crusader, and other materials that discuss some of these theories he discussed with you; correct?
A. I don't--if I didn't see them, I can't know if they discuss the theories or not.
Q All right.
Well doctor do you know that he had a bible; is that right?
A. Yes.
Q Now doctor did you state on this tape that was played this afternoon that indeed you do understand, and have understood for some time that the central issue, and I will use your words, "The central issue in this competency hearing, the critical issue is Mr. Salvi's refusal to discuss the events of December 30th with his counsel." Is that right?
A. That's what I said at that time.
Q Okay. And--
A. It's not how I see it today.
Q Well you spend two-and-a-half hours trying to get him to tell you about it; right?
A. Not two-and-a-half hours--
Q Well, how long?
A. --I did focus on that.
Q How long was the interview?
A. Two hours and twenty minutes.
Q Is it fair to say the tape speaks for itself, it's Exhibit 4, but over, and over, and over again you tried to get him to discuss with you, or tell you what occurred on December 30, 1994; is that right?
A. No.
Q Okay. Well the tape speaks for itself, sir.
Did you tell him that the central issue here was his failure to cooperate, to use your words, and disclose to his attorneys a narrative?
A. As I understood it on January 15th, I did say that.
Q By the way, whatever other conversations you had with him, there is no video tapes of those?
A. That is correct.
Q And there is no transcript of those; right?
A. That is correct.
Q So the only thing that is available to the judge as far as a transcript, or a video tape of an interview is this Exhibit 4; is that right?
A. Yes, with regard to my interview.
Q And during the course of this interview, or by the way, you gave him some tests during this interview; right? You asked him some questions. What he would do if there was a fire in a theater?
A. Yes.
Q Where he was? Where the jail was?
A. Yes.
Q Is this the science part of your examination?
A. That is called the "mental status examination."
MR. LACHANCE: Objection.
THE COURT: Overruled.
Q Are those tests that you gave him?
A. Those are the formal questions as part of my status exam. Yes.
Q You describe them as tests when you were asking the questions; right?
A. They are.
Q Now with respect to the question that you put to him with respect to his cooperation, you misled him in this interview, didn't you?
A. Not in my own--
MR. LACHANCE: Objection.
THE COURT: Overruled.
Q Well did you state in this interview, and I am going to read from the transcript which is marked--
THE CLERK: 8.
Q --8, Exhibit 8, starting at the bottom of Page 55. Did you state to Mr. Salvi: Failure to cooperate with one's attorney would mean that you are incompetent to stand trial? Did you say that to him?
A. He interrupted me there.
Q Well, is that what, is that what the transcript reflects? There is a period at the end of that.
A. Actually that is, Mr. Salvi said that.
Q That's right. He repeated what you said.
A. Wait a minute.
Q Is that right?
A. Why don't you read what I said.
Q Okay. Here's what you say, Dr. Resnick. Well, then. You explain to him what competency means.
Then if I could, just a moment.
All right, here it is.
Dr. Resnick: If a person is not competent to stand trial, that means that their trial is deferred and ordinarily that person is sent to a psychiatric hospital until they are restored to competence.
Now this is you: Now failing to cooperate with one's attorney can be a basis for being found not competent to stand trial. Period.
A. No. It's not a period.
Q Is there a period there, sir?
A. I go on and say "And."
Q Is there a period there?
A. Yes.
THE COURT: Doctor I need to hear you both. Don't interrupt the questioner.
Q There is a period there, and then you say "and" there, and you were interrupted.
A. Yes.
Q And Mr. Salvi interrupted you and he told you that he wanted to tell you something. Right?
A. No.
Q Well. Did Mr. Salvi tell you that what you had just said was false? Did he say that?
A. No.
Q Did you just watch this video tape?
A. I don't know what you are referring to.
Q Did you watch the video tape?
THE COURT: Please show the witness what you are referring to.
MR. KIVLAN: Okay.
Q I am going to show you Page 56 of this same Exhibit 8.
Salvi says to you: Let me explain something to you. That is absolutely false. I could bring forth my own defense. And then he goes on and you go on.
Now did he say that?
A. Yes, he said that.
But you didn't read what came before it.
Q I just did read what came before it.
All right, Doctor, the judge has seen the tape. All right.
Will you agree, sir, that the central issue in this, just as you stated to Mr. Salvi with respect to his failure to give a narrative, is whether he's willfully doing it or there is some psychotic reason that interferes with that. Is that the central issue as you described it on the tape?
A. As I described it on the tape, yes.
Q And Mr. Salvi told you that he could remain silent and he did have a right not to discuss with anyone the events of December 30, 1994, did he not?
A. He did.
Q And that is absolutely true, isn't it. Dr. Resnick?
A. Yes.
Q And with respect to the issue of whether or not he discloses a narrative to his attorneys, or anyone else as to what happened on December 30, 1994, it is for this judge to determine whether that is willful and intentional, or it isn't, or it's due to some other psychiatric reason; is that right?
A. Absolutely.
Q And Mr. Salvi correctly stated to you his understanding of competency as it related to his refusal to disclose these things. Is that right?
A. No. I don't think he stated it correctly.
Q Well we will let the record show what it shows.
Now during this interview he stated to you over and over again that he knew what you wanted to hear about the events of December 30, 1994 but he did not want to discuss these things. Is that right?
A. I wouldn't say it was over and over again, but he did make that clear.
Q He made it clear?
A. Yes.
Q Now it's not unusual in the area of criminal law, criminal defendants, the criminal process for defendants to refuse to give narratives, or to tell anyone about the events that they are charged with. It's not uncommon, is it?
A. I think it's uncommon. It happens.
Q Well, of course it happens.
You mentioned yourself mafia defendants, often times they won't tell anybody, including their own attorneys, anything about what has occurred at or about the time that they are charged with something, or anything pertaining to the charges; isn't that correct?
A. They certainly may.
Q And people who are generally described as anarchists, or terrorists, or other organized groups often times refuse to cooperate with anyone, including their own attorneys; isn't that true, sir?
A. I don't have enough experience examining terrorists to know.
Q Well you have a lot of experience as a, in testifying in criminal cases, do you not, sir?
A. Yes.
Q And you knew there are some defendants who for no offered reason at all refuse to give an account of themselves at the time that they are charged; isn't that right?
A. No offered reason, yes, that occurs.
Q Are you familiar with any Massachusetts case law pertaining to cases like that?
A. No.
Q Have you heard of the case Williams, or Martin, or any cases that related factual scenarios that included defendants who refused to give an account for themselves?
A: No.
Q Now as a matter of fact, Doctor, it's a characteristic of certain defendants to refuse to cooperate or give statements to their attorneys or anyone else, isn't it?
A. I don't know what that means, certain defendants.
Q Well, there are some defendants in criminal cases who are what one would describe as political-type defendants, aren't there?
A: Yes.
Q And is it fair to say that these are people who sometimes are considered crusaders, or somebody with a cause, is that how
they are identified sometimes?
A. Yes. That's correct.
Q And is it fair to say, Dr. Resnick, that a person about whom evidence exists was associated with, or had contacts with anti-abortion movements was very religious and went in and shot and killed employees of an abortion clinic could be described as someone that might have a political reason, or maybe one of the reasons he did something; isn't that fair to say?
MR. LACHANCE: Objection.
THE COURT: Sustained.
Q Is it fair to say, Doctor, that a person who is charged with a crime involving violence in an abortion clinic-- well let me withdraw that question.
Let me start over again.
Is it fair to say, Doctor, that a person who, as I described it, is a very religious person, whose been associated with or had contact with the anti-abortion movement, and has a history of making statements in the past with respect to his anti-abortion position, if there exists evidence that that person went into an abortion clinic and shot people in the abortion clinic, that one might describe that as a political cause type of crime?
MR. LACHANCE: Objection.
THE COURT: Sustained.
MR. KIVLAN: Well I would like to be heard on that, Your Honor.
THE COURT: Side bar.
AT THE BENCH:
MR. KIVLAN: Your Honor I think it's very. I will make an offer of proof that I would be able to demonstrate through this witness who purports to be an expert this political defendant, that this is the kind of a defendant who is a political defendant, that is, who routinely or characteristically refuses to cooperate with attorneys, or their counsel.
I think it's very important and very material to what you have to decide in this case that there be, you know, some evidence on the record relating to this witness' knowledge.
THE COURT: My problem is foundation. I don't know that he is involved with political matters or cross-examined political defendants.
MR. KIVLAN: We can go through this very laboriously but they have acknowledged.
THE COURT: Is that so?
MR. KIVLAN: Is that your objection? I mean it's all in the grand jury testimony, police reports, and everything else are all part of the record.
THE COURT: No. I don't mean with regard to this defendant. You are asking him to make a general statement. I don't know what his background is.
MR. KIVLAN: I will try it another way.
END OF BENCH.

Q Dr. Resnick, you consider yourself to be an expert on the so-called "political defendant," am I right, sir?
A. I wrote one article about it.
Q And with respect to this article, this is an article entitled, "The Political Offender Forensic Psychiatric Consideration"?
A. Yes.
Q And let me ask you first. Did you make this statement in that article?
"Political offenders are convinced of the truth of their beliefs and act out of altruistic motivation in accomplishing social or moral change." Did you say that?
A. Where are you reading?
Q The underlined portion.
A. Actually I reference that to someone else said it and I'm referring to it.
Q All right.
Now Doctor, did you state in this article that individuals who commit crimes for political motives are usually competent to stand trial, that is, they are able to understand the charges and rationally participate in the preparation of their defense. It is true that such persons may deliberately choose not to cooperate, or even to disrupt their trial. This may serve their political motives by providing a public forum for the expression of their cause. However, since the non- cooperation is voluntary and rational, it is not relevant to their competence to stand trial.
Did you state that?
A. Yes.
Q Now you have in your possession, and you say you reviewed it, the grand jury exhibit, or some grand jury testimony, the police reports, I suggest. I asked you a number of questions this morning about the facts pertaining to this case, and correct me if I'm wrong, you answered in the affirmative that you did know these things. Do you remember those questions this morning?
A. Yes.
Q And you also know that Mr. Salvi had within his possession materials pertaining to the anti-abortion movement and to the suggestion of some that abortion is a crime and the like. Correct?
A. Yes.
Q And you are aware, obviously, as you indicated this morning, that Mr. Salvi, at least according to numerous witnesses, and physical evidence, which you yourself described as overwhelming, is the man who went into two abortion clinic, or women's clinics that perform services for women, including abortion, went into two clinics on December 3O, 1994 and shot two women dead in those clinics and shot other persons present and other employees. Correct?
A. I have no evidence to dispute that fact.
Q Not only do you have no evidence to dispute it, didn't this morning, didn't you acknowledge that you knew that?
A. Yes. You are saying a fact. My understanding, he's not yet convicted.
Q Well you understand that that is what the evidence is in the case?
A. Yes. Absolutely.
Q And you understand because you have reviewed it yourself, that that is what it shows, and you describe it as overwhelming evidence; is that right?
A. Yes.
Q Now consistent with the article that you wrote on this subject, is it fair to say that one could characterize Mr. Salvi as a political defendant, he may be a political defendant? Am I correct, sir?
A. In the absence of psychosis.
Q Are you looking at somebody here?
A. I am looking at Mr. Salvi.
Q Okay.
A. In the absence of a psychosis, I would certainly describe him as likely to fit the characteristic.
Q Of a political defendant?
A. Yes.
Q By the way, as far as psychosis is concerned, have you-- you have made statements about psychosis at other times, haven't you?
A. I am sure I have.
Q Have you said that most psychotic people are sane? Do you ever remember making that statement?
A. Yes. I believe that's true.
Q Now with respect to Mr. Salvi's refusal to discuss the events of December 3O, 1994, you are aware of the facts relating to those events as you have described them, not the details, but you know essentially what happened?
A. I think I have already said that, yes.
Q Right.
Now and you already said that it's not unusual for a political defendant not to cooperate or to discuss or give a narrative, right, you have said that this morning, just moments ago, in your article you acknowledge that; is that right, sir?
A. No. That is not correct. You are misquoting me, Mr. Kivlan.
Q Let me withdraw the question.
Let me ask you again. Did you state in the articles individuals who commit crimes for political motives are competent, I'm sorry, are usually competent to stand trial, that is, they are able to understand the charges and rationally participate in the preparation of heir defense. It is true that such persons may deliberately choose not to cooperate, or even to disrupt their trial. This may serve their political motives by providing a public forum for the expression of their cause. However, since the non-cooperation is voluntary and rational, it is not relevant to their competence to stand trial.
Once again, you stated that in your article?
A. Yes.
Q Now as far as political defendants are concerned, cases involving this type of a case, shootings, and murders at women's clinics, unfortunately, is not unprecedented, is it? It's happened before, hasn't it? People have been shot at women's clinics?
A. People have been shot at women's clinics.
Q As a matter of fact, you asked Mr. Salvi about Mr. Hill, or you didn't use the name Hill, but you said did he know anything about a doctor in Florida?
A. Yes.
Q Right.
And there have been two cases in Florida, haven't there. Are you aware of two cases in Florida involving murders at women's clinics?
A. I have some vague recollection.
Q And whereabouts in Florida did these shootings occur?
A. I don't know.
Q Well, if I suggested to you it was Pensacola, Florida, would that refresh your memory?
A. I think Dr. Hill was.
Q And do you know where Pensacola, Florida is in relation to Naples, Florida, where the defendant grew up, well, grew up part of his life and went to high school?
A. I don't know how many miles apart they are.
Q Would you say it's about four hundred miles away?
A. I don't know. I take your word for it.
Q Do you know that a defendant by the name of Griffin on or about March 1, 1993 murdered a doctor at a women's clinic in Pensacola?
A. I don't recall the details of that. I have some vague.
Q You have some knowledge?
A. Yes.
Q And do you know that Mr. Griffin was tried and his trial was covered by TV networks, or Court TV, or one of those entities? Do you know that?
A. I don't.
THE COURT: Mr. Kivlan, if you are going to be more than five minutes or so, we need to take a break.
MR. KIVLAN: I will be more than five minutes.
THE COURT: How long will you be.
MR. KIVLAN: Probably be another twenty minutes, Your Honor.
THE COURT: Let's stop for the day
MR. KIVLAN: Okay.
THE COURT: Sir, you can step down.

THE COURT: We can resume this matter tomorrow at 9:OO A.M..
It is your expectation to go all day tomorrow on this matter; is that correct?
MR. KIVLAN: Well, they are putting on the case so. It sounds like we are.
THE COURT: We are talking a full day tomorrow.
MR. LACHANCE: I would guess so if they are going to put on any kind--
THE COURT: Are we still talking about ending the matter? Do you expect the matter will be completed by the end of the day tomorrow?
MR. LACHANCE: I expect my witnesses will be complete before the end of the day tomorrow. I don't know if they plan further, to try to put on further case.
THE COURT: Well I need to ask you whether you will be--
Sir, if you will step down.
[The witness
stepped down]

THE COURT: --through by one so that to give the Commonwealth an opportunity at some point if they have to.
MR. LACHANCE: I can't promise that, Your Honor.
THE COURT: So it's possible the matter would go into Wednesday, is that correct?
MR. KIVLAN: It's possible, Your Honor.
THE COURT: Thank you.
MR. LACHANCE: Judge before you leave the bench. Could I--I gave the court my copy of the transcript. May I take that tonight and make a copy of it and return the exhibit tomorrow.
THE COURT: Yes. You may want to number the pages consistent with Mr. Kivlan's numbering of his copy.
THE CLERK: The Salvi matter is continued to July 25, 1995 at 9:OO A.M.
[Adjourned]

(Next Day's Transcript)

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