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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: GRADY NELSON, vs. STATE OF FLORIDA,

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO. F05-00846

Plaintiff, REDACTED TESTIMONY HEATHER HOLMES, PhD MORNING SESSION

Defendant. ------------------------------------/ Gerstein Justice Building Miami, Florida November 10, 2010

The above-entitled case came on for hearing before the Honorable JACQUELINE HOGAN-SCOLA, as Judge of the Circuit Court, in court pursuant to notice.

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OFFICE OF THE STATE ATTORNEY KATHERINE FERNANDEZ-RUNDLE BY: ABBE RIFKIN, ASA -AND- HILLAH MENDEZ, ASA -AND- JOEL ROSENBLATT, ASA FOR THE DEFENDANT: TERENCE LENAMON, ESQUIRE -AND -DAVID MARKUS, ESQUIRE

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WEDNESDAY, NOVEMBER 10, 2010, 11:11 A.M. (The following proceedings are a redacted version of the testimony of Heather Holmes, PhD, omitting objections, rulings and sidebars at the request of the ordering party). MR. LENAMON: We call Dr. Heather Holmes. THE COURT: Good morning. If you would, step on up here to the witness stand, please. And before ta ing your seat, if you would, raise your right hand and be sworn or affirmed. HEATHER HOLMES, PhD., called as a witness on behalf of the Defense having been duly sworn by the Cler , was examined and testified as follows: THE WITNESS: I do. THE COURT: Ma e yourself as comfortable as possible on the witness stand. And address all your

voice up, and before you begin, state and spell your full name, please. THE WITNESS: Sure. First name, Heather, H-E-A-T-H-E-R, last name Holmes, li e Sherloc , H-O-L-M-E-S. DIRECT EXAMINATION BY MR. LENAMON: Q Good morning, Doctor, how are you?

comments to the ladies and gentlemen of the jury,

eep your

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Q A

Would you introduce yourself to the jury? Sure. My name is Dr. Heather Holmes. I'm a

forensic psychologist here in Miami.

psychologist? A Q On my own for approximately four and a half years. Before you became a forensic psychologist, did you

attend school? A Q Yes. Can you explain to the jury, what your bac ground

and education is? A Certainly. I attended Marshall University in

Huntington, West Virginia, and obtained an undergraduate degree in English writing and general psychology. I then attended Loyola College of Maryland in Baltimore, Maryland, where I obtained a Master's degree in psychology and then obtained a Doctor of Psychology degree from the George Washington University in Washington D.C. Q Do you have any specific training in forensic

psychology? A Q A Yes, I do. Can you explain to the jury what that is? Certainly. I began during my Master's wor ing at

Maryland Correction Adjustment Center, which is a

And how long have you been wor ing as a forensic

Good morning. Fine, than you.

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super maximum security prison for the State of Maryland, and continued volunteering and doing internship there while undergoing my graduate training in D.C. From there, I did a one-year internship, predoctoral internship for the State of Florida, Department of Corrections in Orlando where I wor ed at a psychiatric

youth offender prison. Afterwards, I did a postdoctoral residency for pre-adjudication for individuals who had not yet gone to court here in Miami-Dade County under Dr. Leonard Haber and Dr. Gustavo Font.

A-23 for identification. MR. LENAMON: May I approach the witness, Judge? THE COURT: You may. BY MR. LENAMON: Q Do you recognize that document, ma'am?

(Omission).

A-23. Do you recognize that document? A Q A Q Yes. What is that? That's my CV. Can you explain to the jury what a CV is?

I'm showing you what's been previously mar ed as

I'm showing you what's been mar ed as Defendant's

hospital within the prison system. I also would wor

at a

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It's a resume that is a little bit longer than a

traditional resume. It fleshes out your training and experience, seminars you've attended, your educational bac ground, your wor history. (Omission).

May of 1998 through December of 1998, what were you doing? And do you need this to refresh your recollection? A Possibly. MR. LENAMON: May I approach the witness, Judge? THE COURT: You may. MR. LENAMON: I only have one copy. Is there any way Luis can get a copy of this, Judge? THE COURT: When he comes bac , yeah. BY MR. LENAMON: Q Tell us about your research experience at Johns

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We were running -- it was the third trial of a drug that was trying to obtain FDA approval for the treatment of alcohol addiction. The drug was called The Camper Set, so it was a double blind study, which we were administering the medication, some people got placebos, some people got the medication that would treat alcoholism for people that had alcohol

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Hop ins while we're waiting for Louis? A I wor ed as a research Assistant at Johns Hop ins.

O ay. Doctor, let's start from the beginning and

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addiction problems. Q A Q That was between June, 1997 and April, 1998? Yes. In May of 1998, you began wor ing at the Maryland

Corrections Adjustment Center? A Q A Yes. Can you describe what you did there? These were -- it was a male correctional facility.

It was a maximum security prison for the State of Maryland, so the only individuals that are directly sent to a maximum security for Maryland are those sentenced to death. The other individuals that ma e it to that facility are those who have acted out in a regular maximum security prison who have different charges other than a death sentence. So it was considered super maxi for the security purposes. And while I was there we would evaluate inmates to ma e sure that they were doing o ay because the amount of segregation and the amount of, I guess, alone time that they had can sometimes be difficult mentally. So, we would do things called segregation reviews where you would interview everybody that was under segregation to ma e sure that they were not decomposing mentally.

Between February, 1999 and October of 2002, you

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wor ed at the Community School for Autistic Adults and

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Children. Can you describe what you did briefly for the jury? A Yes. I would go into homes, there were townhomes

that were purchased that were owned by the State where individuals, adolescents and adults, not children, that had had autism or that had a severe developmental disability along the autism spectrum, such as severe Asperger's, they resided. And they had home healthcare that lived in for two shifts, two 12-hour shifts. So I -- each individual that was there had a behavior plan that had to be run. They had to be given medication at a particular time. They had to adhere to certain ways of restraining the individuals if they became aggressive, and I was ma ing home visits to ma e sure that these behavior plans that the doctors had set out were being run effectively by the staff. Q Between August of 2000 and May of 2001, at

Catholic University you were a psychology extern. Can you explain what you did there?

saw for therapy only, not for evaluation. We would do treatment, psychological treatment for students at Catholic University in Washington, D.C., and we also underwent training by local area doctors, both medical and psychological, such as psychopharmacology, medication for

Yes. I was wor ing at the student clinic, so we

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mental illness. Q Was that in conjunction with grants that -- or you

received your training doing rounds at Howard University Hospital? A Q Yes. It was all underneath the same training. In September of 2001 to August, 2002, you wor ed

at the Florida Department of Corrections. Can you explain what you did there? A Yes. That was a predoctoral internship which is

required for someone to obtain a doctorate degree for my university. I wor ed at three different facilities in the prison system here in Florida. The first one being Central Florida Reception center, which is a reception center where somebody who is found guilty and adjudicated guilty, that's the first stop. They go to a reception center where they are screened psychologically, medically and they're given certain grades so that they can be determined as to the best placement for them within the corrections department; they have certain mental health needs such as medication, therapy, that would be -- they go through there and that would be determined and then they are also screened for IQ at that point, so I wor ed there. The second rotation was at Brevard Correctional, which

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is in Cocoa-Beach. It is a youthful offender camp. It's also an all male facility. It's for individuals under the age of 21 who have either been sentenced as a YO, youthful offender or for individuals that have been sentenced as an adult for a lengthy sentence but they're too young according to the Department of Corrections to be housed in a regular adult facility. So we had individuals as young as 14 and 15 and while I was there, I did both assessment and therapy. And the third rotation, which was the lengthiest, was at La e Correctional Institution, which is about ten minutes north of Orlando. It's a regular adult male facility, but it houses on its grounds a psychiatric hospital. And so I wor ed within the hospital and these are for individuals that are on what we call TCU, transitional care unit and in CSU, the crisis stabilization unit. These are people who have attempted suicide in prison or people who are severely mentally ill who are put then into the hospital and are seen daily by staff as well as by medical physicians.

in Fran lin City Public Schools in Fran lin, Virginia. Can you describe what you did there? A Yes. I evaluated anybody from age 6 through

age 18 for learning disabilities, attention deficit disorder, gifted placement.

And after that you wor ed as a school psychologist

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We also sat in on individual educational placements for individuals that have medical problems such as spina bifida, we had a child who had spina bifida and just to review and ma e sure that there were any needs that they had -- excuse me -- needed to have met within the school system. Q And after you left there in August of 2003,

between November, 2003 and March of 2005, you wor ed as a -at the Psychological Associates of Miami? A Q Yes. Can you explain to the jury, what you did there

and what that was?

prison system, my postdoctoral residence was with Dr. Leonard Haber and Dr. Gustavo Font, and that was a -after you become a doctor to be licensed in the State of Florida, you need to undergo one year of direct supervision underneath a doctor and everything I did there was pre-adjudication. I would evaluate individuals for competency, for sanity, for mitigation, for ris assessment, for battered women's syndrome. And, again, these are all people who have not yet been adjudicated guilty or not guilty by the Court, so it was before they would go to trial.

And after that, you wor ed at the Mine Spectrum

As opposed to post adjudication wor ing in the

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Institute from March, 2005 to November, 2006. Can you describe what you did there? A That was a -- or still is a clinic that serves

children, adolescents and adults. It is a clinic that also specializes in neurofeedbac , which is an alternative treatment for things such as traumatic brain injury, attention deficit, hyperactivity disorder, learning disabilities, so I would evaluate patients. I did a lot of evaluations for school-aged children, again, for gifted, learning disability. I had a full caseload of private therapy clients. We also occasionally would do quantitative EEG,

protocol that you would run to neurofeedbac as treatment. Q Is that the first time in March of 2005 through

November, 2006 that you became familiar with the quantitative EEG? A Q is? A Sure. A QEEG is more commonly referred to as Yes, it is. Can you give me a general overview of what that

brain mapping. Basically an individual who is having difficulties, again, it can run the gamut. Anything from traumatic brain injury through attention deficit hyperactivity disorder, sometimes anxiety disorders.

otherwise

nown as brain mapping, and that would give you a

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electrodes -- or the machine that we used has 19 electrodes on it. Those electrodes, then, are hoo ed up to a machine that records a raw EEG. So nothing is going in, they're just measuring what comes out, and then it's compared -- different lobes of the brain are compared to -- if you are testing a 35-year-old Caucasian male, you would compare those norms to other 35-year-old Caucasian males and compare the brainwaves, Alpha, Delta, Beta and Theta. So you would loo at -- if you're supposed to be doing a lot of thin ing and focusing, which is the front part of your brain, it occurs in the frontal lobe, you should have a higher ratio of Beta in the frontal lobe. If you have a child with ADHD, a lot of times you'll see that they have interruption in their thin ing, which is Beta. So, as opposed to just treating children with -- or adults with psychopharmacology or chemically, you can also treat them electrically, which is with the use of neurofeedbac . So QEEG is the diagnostic tool that would then allow others to use neurofeedbac for treatment. Q Just to jump ahead a little bit, did you

subsequently, based on your forensic interview and evaluation of Mr. Nelson, ultimately recommend to me that a

You would have -- it loo s li e a bathing cap, and it has 19

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QEEG to be done on Mr. Nelson? A Q Yes, I did. Now, after you left Mind Spectrum or

simultaneously with leaving Mind Spectrum, you also wor ed your own business, Psychology Consultants. Can you describe what your activity has been from that from 2005 to the present?

forensic psychology, which is dealing with the court system. I started doing primarily competency evaluations that were court ordered by judges. And then from there I was getting referrals from

assessment, mitigation for things such as death penalties. I also did battered women's syndrome evaluations. I had a few evaluations for wrongful death cases in civil litigation. And I also had done some sanity evaluations.

Office on cases? A Q A few times, yes. While you were doing this consultation is when I

reached out to you and as ed you to get involved in the Grady Nelson case? A I'm sorry, can you repeat that?

Have you ever wor ed the with the State Attorney's

attorneys to do other

inds of evaluations, such as ris

Certainly. I began on my own going bac to

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consultant in your own business doing evaluations, I reached out to you and as ed you to get involved in Mr. Nelson's case? A Q Yes. Have you ever been qualified as an expert in a

court of law before the courts here in Miami-Dade, Florida, Broward County, Palm Beach County and the Southern District and Middle District of Florida, which are federal courts? A Q Yes. Now, you also have some experience dealing with

mental retardation? A Q Correct. Before we get to Mr. Nelson specifically, I want

to as you some questions about mental retardation. Can you explain to the jury how mental retardation is diagnosed? (Omission). Q Doctor, before we go any further on the mental

retardation issue, you have wor ed on a number of death penalty cases? A Q A Q Yes. Some with me and some with other lawyers? Correct. And you are familiar with many of the doctors in

this building?

While you were doing this wor as an independent

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A Q

Yes. Can you identify that gentleman sitting in the

front row here? A Q Yes. It's Dr. Enrique Suarez. Is Dr. Enrique Suarez employed by the State of

Florida in this case? (Omission).

was employed by the State of Florida on a death penalty case? (Omission).

(Omission).

that Dr. Suarez was wor ed on where he has wor ed for the State of Florida on death penalty cases? A Q Yes. Now, have you -- in the course of your training,

did you receive training also in the area of mental retardation? A Q Yes, I did. And have you actually taught training on mental

retardation? A Q Yes, I have. Can you explain to the jury, or tell the jury when

Based on your re-as ing, are you aware of cases

Let's get bac to the issue of mental retardation.

Have you wor ed in cases where Dr. Enrique Suarez

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and who you have taught and trained on the issue of mental retardation? A I forget the exact date, it's in my curriculum

vitae, but I held a training seminar here in the building for the judges in the Eleventh Judicial Circuit on competency and mental retardation. Q Is one of the things you did was explain to them

what -- how mental retardation is diagnosed and the standards regarding mental retardation? A Q Yes. Are you familiar with the requirements under the

State of Florida for someone to be considered mentally retarded? A Q Yes. Is there a criteria that's actually set out in a

particular statute that requires certain things to be met? A Yes. And diagnostically as far as psychology is

concerned, there are certain criteria that have to be met in order for the diagnosis to be rendered by a clinician as well. Q So we are clear with the jury and there's no

confusion, and I hope not to be simplifying or insulting the jury, but we are not tal ing about Mr. Nelson at all when we are dealing with mental retardation; is that correct? A Correct.

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Can you explain to the jury what the three

requirements are under Florida statute for someone to be found mentally retarded? (Omission). Q The diagnosis, is there a requirement that someone

be diagnosed prior to the age of 18? A Q statute? (Omission). Q Is that a criteria set forth within the actual Yes. Is that a criteria set forth in the Florida

literature on mental retardation that is generated within your community as an expert? (Omission). THE WITNESS: Yes. In the DSM IV-TR you have to be -- or show some evidence of having mental retardation prior to the age of 18 in order to be diagnosed with it. BY MR. LENAMON: Q Can you describe to the jury -- or explain to the

jury what the DSM IV-TR is? A It's the diagnostic and statistical manual that's

used. It's primarily developed so that we can have numerical codes for billing purposes for insurance companies. But it also delineates the specific symptoms that an

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individual has to have in order to be diagnosed with a myriad of different diagnoses such as clinical depression, schizophrenia, mental retardation, personality disorders. Q Is there actually a three-step criteria that has

to be followed? A Q A For mental retardation, yes. The first one is the onset prior to age 18? Yes.

(Omission). BY MR. LENAMON: Q Doctor, do you have experience diagnosing

individuals with mental retardation? A Q Yes, I do. Can you explain to the jury what your experience

is and how you have been involved in that, particularly to your field?

psychologist, because children that are having any sort of mental disability need to undergo evaluations so that they are getting appropriate care and the appropriate placement while they are in school. So I went through extra training during that time so that I would be well versed in particular areas such as diagnosing certain things li e learning disabilities and also mental retardation.

Well, it began when I was wor ing as a school

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there were a lot of private schools and those who could not afford private schools in the lower socioeconomic status were in the public school system, so there was a lot of challenges with some of the students that were there and mental retardation was one of them. So that's really how my exposure began and throughout my forensic training as well as recently on some death penalty cases, I have been hired to assess somebody's functioning in terms of their intellectual capacities for mental retardation. Q What is mental retardation and how do you

diagnosis it? A Well, there's three requirements in the DSM IV-TR

that are clearly delineated in order to meet this diagnose. The first thing that there needs to be some evidence that this was present prior to the age of 18. In other words, this isn't due to a head injury or drugs after the age of 18 that has then caused diminished capacity in terms of your intelligence. That's the first criteria. The second one is that you have to have an IQ below 70, so that's usually what's determined by an IQ test. And the third requirement, there has to be some deficits in what we call adaptive functioning. In other

In the area that I wor ed in Fran lin City, Virginia,

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words, if your IQ is below 70 but you're able to do certain everyday activities to lead a more meaningful life, such as hold down a job, have meaningful social relationships, drive a car, have a driver's license, get from Point A to Point B, either via, bus, you now, if it shows the ability to adapt to your environment, then that would argue against mental retardation. The flip side being if you have deficits, severe deficits in some of those areas, as well as evidence prior to the age of 18 and an IQ below 70, then you would meet the diagnostic criteria for this diagnosis. Q And dealing with just the third prong of that,

the adaptive behavior, putting the other two aside, which would be the onset prior to age 18 and the IQ below 70, what is the process that you use to evaluate that? A Adaptive functioning usually requires a structured

interview; that is, very specific questions are as ed. Typically if this is a child that you're evaluating, you would as the caregiver, be it the mother, father, the aunt, the grandmother. If this is an adult you're assessing, you would hope to find someone that they live with, either family member,

see what the individual's abilities are. Can they coo food in the microwave or are they able to

spouse, and you would as

these questions of that person to

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obviously, one is a little bit easier than the other. So, you try and tease apart by as ing ancillary fol s

abilities are, what their limitations are. Q the third? A Usually it -- that's the way that I do the Do you have to get through the first two to get to

assessment. The first thing that's loo ed at is the intelligence. So the first thing I would do is an IQ test. Obviously if the IQ is well above what the cutoff is, then there's no need to put the spouse or loved one or a roommate or anybody through the adaptive measures. So that's usually the last prong in my assessment that's done. Q Do that you have test instruments that are used to

conduct the third pong that you discussed? A Yes. And they are normed and there is statistical

data that are used in terms of comparatively. The one that I use a lot is the Vineland Adaptive Scale. Q A Can you explain to the jury what normed is? I'm sorry, yes. Normed is when you ta e a

particular group, such as an age group, and you compare it to another age group that does not suffer from what you're testing for.

and people that

now the individual well what their

follow a recipe and ma e something on the stove. Because,

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In this case, if you are testing for mental retardation on a 35-year-old, you would then norm the test by administering it to people who are 35 years old who do not suffer from mental retardation to see how they do and you would loo at various IQs and how they fare.

criteria based on that testing, but the most accurate way to

them and go through this Vine's test and actually fill it through? A Q Correct. Let me as you, these are some of the things you

the grocery store by themselves and shop? A Yes. The ability to go to certain places, to get

things on a list. The ability to ma e change and wor with monetary things is important. That would be a contributing factor as to somebody's functioning in the everyday world. Q So when you say change you mean actually go and

pay for it? A Q Correct. Would the ability to ta e a bus from Point A to

Point B be something you consider? A It can be, yes, depending upon how complex things

may loo at. Would you loo

at someone's ability to go to

do it would be a complete interview of someone who

So you would ta e a number of things into the

nows

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are.

well the children are cared for. You would loo at whether their needs are being met and

they have had, yes. Q If someone is in school, and attending school, is

it expected normally that they would have records that would indicate one way or another whether the person has learning disability or something that is considered similar to mental retardation? A We would always hope to find those records.

There are times when there aren't records and someone has been pushed through the system. Although, I thin , we are better at it nowadays. If you went to school in the 1950s or '60s there was less nowledge about mental retardation, learning disabilities, ADHD, so there was less school records for that. So if somebody is, I guess I'm going to qualify it, if now somebody is a little bit younger as opposed to being 50

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starting to see it more and more nowadays that it would be

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or 60 and you are loo ing for school records you are

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how well they're being met, see the

ind of parenting that

would be ta en into consideration and you would loo

Again, you would loo

What about ta ing care of children by yourself? at -- that's something that at how

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present in the records in some way. Q We're going to leave that subject and we're going

to go bac to your evaluation of Mr. Nelson. You indicated you were contacted by my office to evaluate Mr. Nelson? A Q A Q Yes. Were you given any documents to review? Yes, I was. Can you tell the jury what documents you were

given to review? A Yes. I was given school record. I was given

records from a drug treatment center called The Village. I

there were also records relating to medical problems that Mr. Nelson has.

those records were? A Q A Q approximately 2800. 2800 pages? Yes. And out of those 2800 pages --

(Omission). BY MR. LENAMON:

for identification purposes. It's 487 pages. Is this part of the 2800 pages of documents that you were provided?

Doctor, I'm showing you what's been mar ed as A-24

O ay. Do you now approximately how many pages

was given military records. I was given wor

records and

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A Q records? A Q

I believe so, yes. And was your primary focus those records or other

Other records. I'm showing you what's been mar ed as A-25 for

identification purposes. Do you recognize those documents? These are Bate stamped pages 1491 through 1499. A Q A Yes, I do. What are those records? These are the school records for Mr. Nelson.

(Omission). BY MR. LENAMON: Q Now, Doctor, can you describe the other records

that you reviewed in this case? A Medical records, school records. Records from The

Village, which is a drug treatment center. There was records -- well, there was a page stating that Mr. Nelson had attended also drug treatment at St. Lu e's but they did not have those records; military records when he was in the military; wor records when he wor ed for Miami-Dade County and also jail records for this incarceration. Q Did you also review documents pertaining to the

actual case itself? A Q I reviewed some transcripts from the first phase. From the trial?

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A Q statement? A

From the trial, yes. Did you review the defendant's transcribed

I apologize. Yes, I reviewed his statement as

well as a videotape. Q A Q The videotape statement? Of his statement to the police, yes. I'm showing --

(Omission). BY MR. LENAMON:

A-26 for identification purposes. Do you recognize that document? A Q A Yes. What is that document? From Catholic Charity from the arch diocese in

Miami. From St. Lu e's Addiction Recovery Center saying that Mr. Nelson was in treatment during a period of time in 1997 from April to December funded by the Homeless Trust but that the records are no longer available. (Omission). BY MR. LENAMON: Q Now, can you tell me what the purpose of that

particular document is? Could you tell the jury what the purpose of that document is?

I'm showing you what's been mar ed as Defendant's

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records, because it becomes obviously quite a burden to bear. So, that piece of paper basically indicates that Mr. Nelson did receive drug treatment at this facility during the particular time, however they don't have the detailed records. So it goes to show that he was receiving treatment or that he did receive treatment at this facility, they just don't have the detailed records about that treatment in storage anymore.

that. Let me ta e a step bac . How important is it for you to review records? A Q A It's very important. What's the purpose of reviewing records? Particularly in cases li e this, it can either

lend credibility to the individual you are evaluating or ta e away credibility.

Now, have you been involved in cases where it was

very difficult to obtain records or no records were obtained because of things li e a person being from a foreign country or from older records? (Omission).

Is it unusual for you in your field -- stri e

After a certain period of time places don't

eep

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BY MR. LENAMON: Q jury? A A lot of times there's -- it's difficult to get Can you describe a little bit about that to the

school records if you come from a different country. South America, the Caribbean, which because of where we are located that's where some of our defendants are from. So, a lot of places such as schools or hospitals don't have the same stringent requirements that we have in the United States to maintain records for a period of time. The defendant's age, as well, can play into it. Such as the older somebody is, the less records there are sometimes. Particularly school records, those are harder to find. If somebody was at a hospital, let's say, and it's been a while since that injury, sometimes it's difficult locating records where they don't have them anymore, they've been destroyed because of the length of time since that person was admitted. Sometimes, depending upon what part of the country the person is from and their age, record eeping differed a long time ago. Q What are the different types of information that

you use when you evaluate someone, besides records? A We -- in death cases it's common to have an

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investigator or a mitigation specialist or both. These individuals will sometimes go to the hometown or the home country of where the defendant is from. They will interview other witnesses. At times I'll interview other witnesses that have nown the defendant, just to obtain, again, more ancillary information. Q Could you tell the jury what a mitigation

specialist is? A A mitigation specialist is somebody who has

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they are able to find out information by interviewing witnesses.

they now certain red flags to loo for, for mental illness, drug addiction, medical problems. And these people will often go into the homes of witnesses, get them comfortable, go through several interviews and try to obtain as much, information, li e I said, good, bad and ugly about the defendant. Q Can you describe the importance of forming a

relationship with a client in order to obtain accurate information?

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nowledge about what mitigation might be. In other words, positive, negative, good, bad and ugly,

They

now what's important in terms of social history,

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nowledge about very difficult cases and has some wor ing

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(Omission). BY MR. LENAMON: Q Are you aware that at some point Grady Nelson --

let me jump ahead, and then we'll get bac to this question so I can lay the predicate. Did there come an occasion when you interviewed Mr. Nelson? A Q A Q A Q Yes. And obtained information about him? Yes.

Yes, I did. And initially did he disclose to you whether he

was sexually abused? A Q Initially he denied that he was. Did there come an occasion when you subsequently

received information from the mitigation specialist in this case that he was sexually abused? A Q Yes. Did you go bac , based on that information, and

reinterview Mr. Nelson? A Q Yes, I did. Now, let's go bac to the mitigation specialist,

and the importance of forming a relationship and gaining the trust of the defendant. Can you explain to the jury why

And did you as

him questions about sexual abuse?

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that's important? (Omission). BY MR. LENAMON:

specialist in this case? A Q A Q A Q Cynthia O'Shea. Do you see her in this courtroom? Yes, I do. Can you point her out for the jury. She's in the second row against the wall. Did you have conversations with her from the

beginning of this case about the ongoing investigation? A Q Yes, I did. And did you actually conduct interviews yourself

in addition to reviewing the records that you discussed and interviewing Mr. Nelson? A Q with? Yes, I did. Can you tell the members of the jury who you spo e

Mr. Nelson Davis, who I believe testified already, and the other is Ms. Mary Colson. Q Did that, in conjunction with the interview of

Mr. Nelson and the records you received, factor into your opinion in this case?

Yes. I spo e with two witnesses, one is

Do you now how much time -- who is the mitigation

32

1 2 3 4 5 6 7 8

A Q

Yes, it did. Let me as you, why -- is it unusual for someone

not to disclose or to hide the fact that they were sexually abused? A Q A Q No, that's not uncommon at all. Have you wor ed with victims of sexual abuse? Yes. Can you describe your bac ground and experience in

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

University. There were a few clients that had disclosed sexual abuse. Most of the time, actually, my wor in the prison system has been with sexual offenders. But prior to that, when I wor ed at Catholic University, there was, unfortunately, what I was told to be an upswing of people reporting sexual abuse. So that was the first time that I had had therapy clients who were discussing sexual abuse and being victimized. Q Did you participate in a lot of interviews

involving individuals with sexual abuse? A Q Yes. And can you describe to the jury what is

particular about that when it comes to the reporting issue?

10

wor ing with victims of sexual abuse? A It came -- and again, when I wor ed at Catholic

33

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It's usually shameful. It's embarrassing,

particularly if the victim is male. It can be something that is considered tabu. There can be self-blame. So a lot of times there is minimization or outright denial that it occurred. Q Was it surprising to you that Mr. Nelson had not

disclosed this issue? (Omission). THE WITNESS: It's not surprising when anybody doesn't disclose this upon my first interviewing or meeting them. BY MR. LENAMON: Q What -- you were saying it was shameful. Could

you go into a little bit more detail into the difference between the way a male versus a female may view this victimization? (Omission). BY MR. LENAMON:

the area of sexual abuse? A Q More so in sexual offending. And many times sex offenders have been sexually

abused themselves? A Q Sometimes, yes. Have you testified to that in court?

You indicated that you had wor ed as an expert in

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A Q

Not as of yet, I don't believe so. Now, you had mentioned that you had spo en with

Mr. Nelson about this and then you found out something different from Ms. O'Shea? A Q Correct. Chronologically, how did you first come to

evaluate Mr. Nelson? A Well, the first time I met with him was

February 13th in 2009. I went to the facility where he was housed to conduct a clinical interview. Q A What information were you provided before that? Basically very little. The information -- most of

the information that I got was what he was charged with, what the alleged crime was and that there was some possibility of substance abuse. And that yourself, defense counsel, wanted an evaluation to determine what he needed, if anything else. Q Were you the first doctor actually by myself

retained in this case? A Q I believe so. And can you describe what your role was when I

brought you into this case? A Just to evaluate Mr. Nelson to come up with some

opinions as to what his present mental status is, what's going on with him, what his bac ground history is, and if

35

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there was a need for referral to other experts that are more specialized. Q Between that February of 2009 and today, November

of 2010, you have accumulated the records and information that we have discussed over that period of time; is that right? A Q Yes. So during that 18 months or so, has been the

accumulation of records? A Q Correct. Now, can you tell me what was -- how many times

did you meet him? A Q A I met with Mr. Nelson four times. What were the dates of those? Li e I said, the first one was February 13th,

2009. The second time was May 12th, 2009, and then there was November 9th, 2009, and more recently September 1st, 2010. Q And can you describe the first interaction that

you had with Mr. Nelson, February 1st, 2009?

information on him at all. So my goal was during this time was to introduce myself and explain that I was hired by his defense attorney, and to do what we call a clinical interview, which is basically to gather bac ground

Yes. I had very little, if any, bac ground

36

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relationship history, medical, mental health and substance abuse history. Q Can you describe whether Mr. Nelson

appeared guarded about providing information to you? A Q A Q A Yes, he did. Is that unusual for someone to be appear guarded? No, not at all. What about the second time when you met with him? He was a little bit less guarded as we moved

throughout the interview process. He became a little bit more comfortable as we went. Q Approximately how much time in total, did you

spend with him? A Approximately six to seven hours, I would say.

That's an estimate. Q And that was done through the process of clinical

interviewing? A Q A Q testing? A There were things that I noticed about Mr. Nelson, Correct. Did you do any testing? No, I did not. Can you explain to the jury, why you didn't do any

the first one being that he has what we call labile mood.

information, social history, educational, wor history,

37

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One moment he's in a good mood, he's warm and pleasant and the next moment very angry about something, and his mood vacillated, and he would go bac and forth frequently.

lability of mood. The second thing that I noticed about him was that -that he relayed to me was that he had had several head injuries. And he had scars that he had pointed out, one on top of his head towards the front and the other one along his jaw lines where he said he was in fights. He also relayed that he had been badly beaten prior to the age of four when he was under the care of his mother. Those two things led me to believe that he would benefit from a neuropsychological evaluation, someone who specializes in loo ing at the brain and loo ing at how somebody was able to perform certain tas s under a testing situation. I felt it best that the testing be done by somebody li e that because I really believe that some of the things going on with Mr. Nelson were neurological in origin. Q Is that beyond the scope of what you do, the

21 22 23 24 25

neurological testing? A Q Yes, it is. Did you ma e a referral to me based on your

20

And so the clinical term for that is

ind of a

38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

evaluation of Mr. Nelson? A Q Yes, I did. Did I subsequently as Dr. Ouaou, a

neuropsychologist, to evaluate Mr. Nelson? A Q Yes. Now, during the four interviews of Mr. Nelson, did

Mr. Nelson ever outright appear to communicate with you that he had any mental illness or that there was anything wrong with him? A No. He has denied any sort of mental problems all

the times that I've seen him.

A Q A

Yes, I do. Could you explain to the jury what malingering is? Malingering is a fancy word for fa ing. Basically

when you are evaluating somebody in a forensic capacity, be it for death penalty case or for custody of your child and you are going through a divorce, malingering is something that you eep in mind, it means that somebody is presenting themselves in a false light or they're minimizing things or they're exaggerating symptoms to get out of something. Q Have you been trained both in the evaluative

process and the testing process how to identify malingering? A Q Yes, I have. Can you explain to the jury how do you do that in

Now, do you

now what malingering is?

39

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the evaluative process? A When you are doing testing, psychological for certain patterns in the testing itself

depending upon what you are administering. Some tests come with validity scales built into them. So when you loo at the test scale, somebody will have a high point on a validity scale that indicates that they are fa ing. So you ta e that into consideration. When you are not doing testing and you're just doing interviewing, as I did, you loo at consistency which is crucial in my opinion to determine whether somebody is malingering. They have to have the same story that needs to have some legitimacy. In terms of loo ing at records, loo ing at other information, things need to add up. There has to be some

Now, when you are doing this, this six to seven

hours of interview over the four occasions, most of that is communication with him where you are verbalizing question and answer and he is actually spea ing with you and then you are observing his behavior as you testified earlier? A Yes. And it started more in the Socratic method

where I would as questions and he would give answers, and as it moved it throughout the interview processes, he began to tal more and I would as less questions.

consistency. So those are the things that I loo

testing, you loo

for.

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Is it unusual when you are interviewing an

individual that is 50-plus years of age that they would have some issues regarding the accuracy of time and place, or the data that they are providing you? A That might be better answered by a now, obviously, as somebody gets

older, we all notice that we do things differently and have things that go on that we forget little bits here and there. But terms of specific ages and where that cutoff is, that's probably more of a neurological question.

malingering in the testing process, does malingering mean exaggeration?

Is it something that you come cross in your

experience as a forensic psychologist that someone would exaggerate facts? A Q Yes. Is it unusual that an individual would forget to

tell you or not disclose to tell you about a sexual abuse and then you have to confront him later to get that information? A Q That's not unusual. And would that be something consistent in you

deciding the reliability of that factor considering the

It means fa ing. It can go in either direction.

When you were tal ing about the specifics of

neuropsychologist. I

41

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person is disclosing one specific incident? A I'm not sure I understand your question. Can you

rephrase it? Q Did Mr. Nelson ultimately disclose to you that he

had been sexually abused? A Q A Yes, he did. Can you explain to the jury what he told you? Yes. He stated that he was about eight or nine

years old. He was living here in Miami and his family's preacher had performed oral sex on him and a friend of his. Q A Q A Did he give you the name of that friend? Yes. He said Eddy Miller. And did he tell you where that occurred? It occurred at his home. Evidently his aunt, who

was raising him at the time, was very close to the family preacher. She was very involved in the church and he would sometimes come over to the house. Q And this is information you obtained from him

after you spo e with Ms. O'Shea? A Q A Q Yes. The same information Ms. O'Shea conveyed to you? Yes. So you independently verified?

(Omission). BY MR. LENAMON:

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Did he indicate to you whether it happened more

than one time? A Q He told me it happened once. Is it unusual for a victim of sexual abuse

to withhold information about other sexual trauma? A Q A It can be. Can you explain that to the jury? Again, there's --

(Omission). BY MR. LENAMON: Q Is it unusual for someone who is sexually abused

to underestimate the number of times that they were sexually abused? A No. I --

(Omission). Q Is it unusual for someone to underreport?

(Omission).

sexual abuse would have in and of itself on a nine year old? A He said eight or nine.

(Omission).

you spea with Mr. Nelson about his childhood history and the history of his life?

Now let's go bac

to the evaluation process. Did

Can you describe to the jury what

Did you factor in -- stri e that. ind of trauma a

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A Q

Yes, I did. Can you relate to the jury what Mr. Nelson's life

was, according to him, prior to the age of four? A Until the age of four, Mr. Nelson -- he was born

and raised in Haw insville, Georgia, which I believe is a very small town not too far from Atlanta. He was born in 1957, so he was raised in the south, during, obviously, some difficult racial times. He was residing with his mother. He had an older sister, Grace, who I believe is about eight years older than him, and he had an older brother Willie Nelson, who was a couple of years older than him. He described his mother as a drun . There were times that he can recall prior to the age of four that she was missing for all night, a couple of days on end. There were times that he said that she would misplace

particularly him and his brother and say that they had ta en the things, and she would subsequently beat them. He said she would then find things that she had misplaced, she would sober up, feel terrible, come over and console them, and that this process repeated itself. He described also that she had been arrested a couple of times. So, Sheriff Brag, who was the sheriff of the county at

things when she was drun

and would blame the children,

44

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put them in the jail cell with their mother because they didn't have anywhere else to go. He relayed his fondest memories of his childhood at that time in Georgia as being the days that he got to spend the night in jail because he recalled that they were given brea fast.

Were you surprised that he was describing an

incident where he is actually in a jail cell in a rural town in Georgia early in the 1960s as something pleasurable to him? (Omission). Q What was your interpretation of the information

that he provided you?

fondest memory might be that they were in a jail cell because they remember getting brea fast, and that that would be a positive thing for them.

indicated that you were a school psychologist for a period of at least a year? A Q Yes. Have you also, during the period of time that you

were doing externships and once you became licensed and did evaluations, have you conducted interviews on children

Let's tal about generally children. You

It's obviously eye opening to thin

the time, would ta e Mr. Nelson and his older brother and

that someone's

45

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throughout the period of time that you have been a psychologist? A Q A Q I'll evaluate them, I don't treat them. But you evaluated them? Yes. And the evaluation process is with children

between what age and what age have you done? A Q A I don't evaluate anybody under the age of six. And why is that? It's more of a specialty developmental, and that's

beyond my forte, my focus and my training. Q A What about six through 18? Usually the evaluations are for, li e I said

before, attention deficit disorder. The referral might be that a child is coming in not doing well in school and you have to figure out what's going on. If it's possibly ADHD, a learning disability or is there something else that's causing him to have difficulty, such as a traumatic event, divorce. Q And as part of that evaluation process, you do

historical information on them? A Q Yes. And is it unusual for a child who is over the age

six through the age of 18, to have memories as a child when they were three, four, five years of age?

46

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 well?

(Omission). Q Doctor, you indicated that you evaluated children

over the age of six up to the age of 18. Have you discussed the memories that they have had when they were three or four or five years of age? A Q A Q Yes. And have you given validity to that information? Usually if it can be corroborated, yes. Now, in this particular case, I'm showing you

what's been previously mar ed as Exhibit No. E, which is purported to -- is the birth certificate of Grady Nelson. And you indicated his date of birth was? A Q He related it 2-18-57. So he was born in Haw insville, according to this

report and according to what he told you; is that right? A Q A Q Yes. Did he tell you the name of his mother? Yes, Val. Val. Is that listed on the birth certificate as

A Q A Q A

Yes. Val T. Frazier is listed as his mother. Did he tell you whether he had a sister? Yes. And what was the sister's name that you remember? Grace.

47

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Q A

What did he tell you about Grace? Grace was about eight years older than Grady.

Grady was the youngest. His brother was also a couple of years older. And he had told me a story of being at the county fair, which came about once a year, and he and his brother and sister were there, and his sister was raped by three white boys, subsequently beaten with a bric while he and his brother hid behind what he called, the cement thing, and watched. They then ran home, said that they were scared, they hid under the bed and were waiting for the mother to come home but she didn't come home that night.

according to Mr. Nelson, Grace died in the hospital of pneumonia. Q Now, it was his statement to you that he actually

witnessed it himself? A Q Yes. And did you corroborate some of this information

in spea ing to Mr. Nelson Davis? A

Yes, I did.

(Omission).

Mr. Davis?

Did you have an opportunity to spea

Eventually, I believe a wee

or two wee s later,

with

48

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you.

A Q phone? A Q A Q A Q

Yes, I did.

On the phone. And when did you do that? I spo e to him October 30th, 2010. Of this year? Yes. And do you have notes of that, that you need to

review in case you need to refresh your recollection? A Q I'll bring them out. Go ahead. Do you have a good memory? Tell us what he told

Nelson. So he said Lilly is his mother. Val, Grady's mother, had siblings. I believe she was one of eight. So, Mr. Davis said that Lilly is his mom, and Mr. Davis said he's about four or five years older than Grady Nelson, and that he lived in Haw insville, Georgia, until he was about five or six years old, then he moved to a neighboring town that he said was a lot larger.

Grace, and he said that she got raped about this time of year. The fair came out this time of year. It was cold, she

I as ed him if he

new anything that had happened to

Well, I wanted to

And did you spea

with him in person or on the

now how he was related to Grady

49

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was laying on the ground for a few days, she got pneumonia. He said that Grady's mom was a heavy drin er and, quote,

I as ed him, was he at the fair and he said, you now, that they, meaning Grady and his brother and sister were hanging around after the fair had closed up on a Sunday. He left at 5:00 or 6:00 o'cloc in the evening with his parents and they, meaning Grady and his brother and sister stayed. Q So Mr. Davis -- did he indicate to you whether he

witnessed it himself or heard about it from somebody else? A mother. Q Did Mr. Davis tell you why -- did he remain in No. He indicated that he heard about it from his

17 18 19 20 21 22 23 24 25

Do you recognize this? A I haven't seen it before, but it's a death

certificate for Grace Dennis. Q A Q A Q You have never been presented with this before? No. On the very bottom is there a date that she died? November 28th, 1961. And based on that date, could you tell me

approximately or how old Nelson was -- Grady was at the time

16

what's been mar ed as Exhibit No. A.

15

Haw insville -- let me ta e a step bac . I'm showing you

"She didn't pay no attention to be any of her

ids."

50

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of her death? A He would have been about four and a half. A

little over four and a half. Q father? A Q I'm sorry, Mr. Davis? Grady Nelson. We are going to go bac to Grady Now, did he tell you about -- anything about a

Nelson. We are done with the interview with Mr. Davis. Did he tell you anything about his father? A He said that his father, he has met a few times.

He stated that his father -- he didn't now his dad that much. His dad came to see him periodically. He reported that his dad brought him money a few times.

after the event? A Q A After the rape? Yes. He said that shortly after the rape, Sergeant

Brag, again, or I'm sorry the man in charge of the county, Sergeant Brag had contacted his aunt here in Miami and told

Willie Nelson.

and the children it up at that time? A Yes.

This is the individual that loc ed his mother up

her to come get the

ids, meaning Grady and his brother

Did he tell you that he remained in Haw insville

51

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and moved to Miami? A Q Yes. I want to tal and focus just a little bit about

between the ages of one and the time that he would have left Haw insville and let's say -- did he tell you exactly when it was?

Q A Q six -A Q

Yes. He said he was about four years old. So let's say between the ages of one and five or

Yes. -- we'll leave it at that. Did he have -- based

on the interview that you had with him, did he have any traumatic events that would have affected him up to this moment today?

that's the only careta er in the house, certainly that's going to have an effect on you. And when she's drin ing and there's physical abuse, you now, coupled with apologies and then more physical abuse

23 24 25

and apologies, certainly that's going to have an effect on somebody. But to me the most salient and traumatic thing is

22

Well, I thin when your mom is not around and

When he left Haw insville?

And did he subsequently get pic ed up by the aunt

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witnessing your sister's rape and consequently what -- the

three people rape her when she is only 12 years old and you are four years old and helpless and unable to do anything about it, and you're scared. And you have that memory very vividly etched and a lot of details about it, certainly that could have a tremendous, certainly detrimental effect on what you thin and how you feel and how you form your schemas. Research indicates that early childhood traumatic has effects on the structure of the brain. It can be affect neurobiology, and certainly this ind of trauma and then,

they're small African-American children in a very small town in rural Georgia is another element that probably made it that much more traumatic. Q A Q So he had told you that they were white? Yes. Did he indicate to you that in loo ing bac in his

memory as a four or five-year-old child, whether the death of his sister at that time in his mind was a direct cause of the incident that he had observed? A that? I'm sorry, I didn't follow you. Can you repeat

you

now, layered with the racial tensions. And the fact that the perpetrators were white and

event that led to her death. You

now, watching her have

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Sure. When he was communicating this to you about

the events that had occurred in the early 1960s, that he had witnessed, his sister being raped, then subsequently dying, did he say to you whether he believed that she had died as a result of the trauma from the rape? A Q He said he believed that she had. You mentioned that he said that she had died of

pneumonia. How did that come up and how do you correlate the two when you are tal ing about an individual that's reporting this to you some 48 years later and combining factors of his memory in the past as a four year old and information he may have gleaned over the years? (Omission). Q You indicated that you interview witnesses from

the ages of six on? A Q adults? A Q Yes. Is it unusual to, when you interview a witness, Yes. Is it unusual -- and you have interviewed many

who is an adult, who is trying to communicate to you memories of things that occurred as a child to mix in factors regarding things that may have happened where he learned about subsequent to the event? (Omission).

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How does a child report -- in your opinion, how

does a child report an event that occurred a long distance in the past such as the case of Grady Nelson based on his memory? (Omission). Q When Mr. Nelson reported to you this incident that

occurred in the 1960s, he was reporting that as a 50-plus year old man? (Omission). Q Doctor, how can you tell when a child is reporting

a memory that the child is adding or embellishing things from what other people may have told them in the past? (Omission). Q How could you tell in your interview in Grady's

case as he was reporting from his childhood memory that he was not adding or embellishing things from what people may have told him in the past? (Omission). Q What is your opinion about Mr. Nelson reporting

that Grace died during the rape and later finding out that she died of pneumonia? A Well, I mean, this is what he relayed to me, you

24 25

he said. "I was maybe three or four years old, these white boys teenagers came over to us" --

23

now, the details and I can specifically tell the jury what

55

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(Omission). THE WITNESS: "These white boys, teenagers came over to us. I was with my brother Willie. They was trouble, you could tell by loo ing at them. "My brother and I got behind this big cement thing and they grabbed my sister. She was screaming. They ran home and hid under the bed. Sometimes my mom didn't come home for days and she didn't come that night.

remember is her dying in the hospital a few days later. It too them a while to find my mom."

I as ed where she was. He said, "I don't now. She was probably drun somewhere." I as ed what happened to the boys. He said, "I don't thin anything happened to them."

If it seemed that he was relaying from his memory what was going on at the time. "Again, in his 50s recalling what he remembers and what happened when he was four. But, it in terms of interviewing witnesses who also recall that there was a rape and that his sister then died, and that she was listed as dying of pneumonia, obviously that would be something that Mr. Nelson was told as opposed to him experiencing because they relocated.

"Thought they were going to

ill us. Alls I

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BY MR. LENAMON: Q It's not unusual for a child who is reporting to

combine those things? (Omission).

A Q A Q

To Miami. Who was he living with? He was living with his aunt, his mother's sister. Can you describe what Mr. Nelson communicated to

you what his adolescence was li e? A He said it was great. He lived with Elena

Jefferson, his maternal aunt. He said her maiden name was Frazier. His mother's last name. He said, "We go along very well. She was wonderful. Real loving mother. There was unconditional love." He refers to her as mom.

records in this case? A Q Yes, I did. I'm showing you what's been mar ed and entered as

Exhibit No. Q. Do you recognize those records? A Q Yes.

with his mother? A No.

Now, did you ever have an opportunity to spea

Did you have an opportunity to loo

After he lived in Haw insville, where did he move?

at some school

57

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A Q

I believe she's deceased.

anybody who he grew up with? A Q No. So what information are you left with to evaluate

his adolescence and what he's telling you about a great childhood and a loving family? A I am left with school records. The only records

that we have during his adolescence, what Mr. Nelson relays and that's about it. There's nobody here that's alive since his brother is deceased as well. Q Did he ever mention to you about any illnesses

that he suffered as a child? A Q No. Did he ever mention to you about

any hospitalizations he suffered as a child? A Q No. Did he ever mention to you about any traumatic

events other than the incident involving his -- the sexual abuse involving the preacher, the one incident. A Q No. When he was nine years old, did he ever mention to

you -- or I'm sorry, ten years old did he ever mention to you anything that happened when he was ten years old?

Did you ever have an opportunity to spea

Do you now why?

with

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 now.

A Q

No. Now, ten years old he was born in 1967 -THE COURT: '57.

BY MR. LENAMON: Q '57. I'm sorry. So you would agree with me, that

would have been around 1967; is that right? A Yes. MR. LENAMON: If I can have a moment, Judge? THE COURT: Sure. BY MR. LENAMON:

composite. Now, tell me the importance of records, Doctor? A Well, again, they lend credibility to what

somebody is telling you or they can ta e credibility away. They also can provide you with more detailed information than what the person might remember if the records come from when they were younger. Q Was anybody available in 1967 to interview or

report about what was going on in Grady Nelson's life in 1967 when he was ten years old? (Omission). THE WITNESS: Meaning was there anybody around

MR. LENAMON: That you tal ed to. THE WITNESS: That was there in 1967? No, not

O ay. I'm showing you what's been mar ed as

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BY MR. LENAMON: Q Were you provided any records from the Department

of Children and Family Services from Miami, Florida, in 1967 in regards to anything about Grady Nelson? A Q No.

social agency that monitored children and family? A Q Not that I'm aware of. Are you aware historically in 1967 Miami was a

segregated town? A time. Q Were you aware of any hospital records that were That's from what I understand. It's before my

produced in 1967 regarding Grady Nelson, things that may have happened to him when he was ten years old? A Q A No. Any records other than the school records? That's all that I have are school records from

that time period.

we referred to, Q, which is an attendance record including that from 1967? THE COURT: What is the number? MR. LENAMON: Q.

I'm showing you what's been mar ed as the exhibit

that I now of.

I thin

then it may have been HRS or some other

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BY MR. LENAMON: Q From 1967 indicating that Grady Nelson missed 46

of 129 days of school in 1967. Is that unusual, Doctor? (Omission).

whether Grady Nelson missed 46 days of 124 days in 1967, when he was ten years old. A Q Yes. Would you agree with me that that record shows

that he missed 37 percent of his school year in 1967? A I'm not doing the math, but I'll assume that you

did that right. Yeah, it's a significant portion of the school year. Q Now, would that be something important to you in a

forensic setting to understand what that was all about? A Q Yes.

old. Now, is ten years old an important part of a child's development?

child's development.

birth through four when he was in Haw insville. How important is that to his development in your opinion? A Birth through four? It's tremendously important.

You tal ed about the ages of one through four, or

I thin

all of it is an important part of a

I want you to loo

Did you loo at that record and confirm with me

at 1968 when he was 11 years

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That's when you form attachments to other people. That's where your foundation comes from is your relationships with your caregiver, your mom, your grandma, your dad. That's where your initial sense of security or self-esteem begins is during the formative years, which begins before age four.

is on page -- what is the bottom page number? A Q A 238. The Bate stamp number?

stamped twice? Q A Q A Q Yes. The 1400 number. 1497. That was Page 1497 of the records. O ay. And you already testified that the majority of

those are medical records. The first 1400 were medical records? A Q Correct. Going to 1968, do you see where it says that he

missed 35 of 134 days of school? A Q A Yes. And he was 11 years old at that time? Approximately, yes.

There's two numbers. I don't

Moving to 1968 loo ing at those numbers, and this

now if it's been

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That would have been approximately 26 percent of

the school year? A Again, I don't have the math, but I'm assuming

that's correct. A significant portion. Q Would it be unusual if someone missed 37 percent

going bac to 1967, you were a school psychologist. In the school system that you taught in, would it be unusual for that person to be placed in the next grade if they missed that much school, 37 percent? (Omission). Q see those? A Q A Q I have '68, '67, '68 and '69. Right below. 1970? 45 days absent. 45 days out of 130 days. You'd agree with me Going to 1970 when he was 13 years old. Do you

that's approximately 34 percent of the school year? A Q A Q Yes. And in 1969, he missed 25 days of 155 days? Correct. During the period of time from 1967, age 10 to

1970, age 13, can you give this jury a statistical number of the number of days that he missed during that period of time by an average? THE COURT: I'm sorry, what's the question?

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1970 and if she can come up with a average. THE COURT: Average what? MR. LENAMON: Number of days that he missed. THE COURT: Come on. She's not a mathematician. I'm going to sustain the objection. I have a calculator if you want to do it. MR. LENAMON: Can I? THE COURT: Later. BY MR. LENAMON: Q A Q school? A Q A Q A He enlisted in the military. What military service did he serve in? In the Army. Do you now approximately what year that was? Approximately from 1979 to '81, about a year and a Did Mr. Nelson graduate from high school? Yes. What did he do after he graduated from high

half, I believe. Q service? A Q Yes, I was. And first of all were you also provided Now, were you provided records of his military

information that he reported to you?

MR. LENAMON: I'm as ing her to add '67 through

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A Q

Yes. Can you explain to the jury how Mr. Nelson

described his military service? A He was very proud of serving his country. And it

came up each time I met him, he would tal about how proud he was to have done that. He said he earned a special service ribbon special duty for helping civilians at the Scofield Barrac s in Hawaii. He mentioned when he was in the military he married and he very much enjoyed being a part during that time of his life in the American military. He was extremely proud. Q Did he indicate to you -- did you have a chance to

review his military records? A Q Yes. Was his self-reporting consistent with his

military records? A Q No. Describe to the jury what you determined from

reviewing his military records. A He had difficulty in the military and was cited,

even though he was granted an honorable discharge, it came after insubordination and physical altercation with a superior officer. There was a lot of difficulty that he had. He had applied and appealed that and lost. Q So in other words his military records indicated

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that he was discharged from the Army because of an incident involving hitting an officer? A Correct. Even though he was granted an honorable

discharge, it was due to the difficulties that he was having in terms of his adjustment. Q Was there any indications that he was using drugs

in the military? A marijuana. Q Did you determine whether there had been injuries Yes. He had been cited for use of cannabis or

to him in the military? A Yes. There was a record of him having a fractured

mandible or a fractured jaw. Q Can you tell the jury why that's important in your

evaluation process? A He told me that he did have a problem with

fighting when he was in the military. So the fact that there was something medical that indicated that he had been in a fight or that he had suffered a bro en jaw that was not related -- it was not a service-related injury lends a little credibility to what he was claiming. Q What about in your determination -- had you

already -- when you found this information out, had you already recommended him for a neuropsychological test? A After I reviewed -- or before I reviewed the

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jaw or did you find it out from the records?

jaw, but he had -- oh, no, I'm sorry. I found out from him, jaw fractured, yes. From him. So it was before I referred him. Q Did he report to you whether he had ever been

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13 14 15 16 17 18 19 20 21 22 23 24 25

did say he got into a problem with fighting in the military. Q Is that significant to you as a doctor in ind of

traumatic brain injury that the individual, such as Mr. Nelson, may have suffered a loss of unconsciousness? A Anytime there's a loss of consciousness for any

reason, it can be -- it can lead to brain injury. Anytime you have or sustain a blow to the head, it can lead to a traumatic brain injury. So, yes, that was the considered significant.

determining whether there's a possibility of some

12

noc ed unconscious? A Q A He said both times came in a fight. Was one of those times in the military? He didn't say, but later on in the interview he

noc the unconscious? A Q Yes. And what were the circumstances of him being

I found out from the records that he had a bro en

Did you find out from him it that he had a bro en

records or after I spo e to Mr. Nelson?

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Mr. Nelson's face and head to see if there was any evidence of any appearance of trauma or anything that to support the things that he told you about?

hit and he pointed to the top front of his head and also pointed to his jaw. Q A What did you observe? He has some scarring. MR. LENAMON: Judge, may I have Mr. Nelson stand up for a second? THE COURT: Sure. MR. LENAMON: Step down over here in front of me? THE COURT: Sure. MR. LENAMON: Doctor, would you step down. BY MR. LENAMON: Q Can you point out to the Members of the jury what

you observed and where those items are? A He has a scar underneath his right mandible.

That's what he had pointed out when he had bro en his jaw. And there's a scar at the top of his head, and that was what he had pointed out to me when I interviewed him. Q A Do you see anything on this side? Yes. He also pointed he has a small scar there

(indicating).

Well, I had as ed him where on the head did he get

Doctor, did you ma e a visual examination of

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Did you have further conversation and discussions about Mr. Nelson's drug use? A Q Yes. Can you describe to the jury what were those

conversations?

him about substance abuse and he said he doesn't really drin alcohol.

He was strictly into co e and marijuana. He said he began smo ing marijuana in his senior year of high school. So, he would have been about 18 years old. And he started cocaine via lacing his marijuana cigarettes in the military. He said he's also tried quaaludes a few times. He also tal ed about two instances -Q A Go on, Doctor. He also tal ed about two times that he was in

substance abuse treatment and that he was having a lot of difficulty staying clean with cocaine. He blames the cocaine on the demise of his first marriage. Q Did you actually view records that supported his

substance abuse?

sheet that said that they don't have a lot of records that the jury has already viewed and then there was extensive

Yes. There was the St. Lu e's records or the one

Well, the first time I interviewed him, I as ed

O ay. You can sit down, Mr. Nelson.

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records from The Village. Q A Q Approximately how many pages are those records? There were several pages, at least 200. Did you review those in conjunction with your

opinions in this case? A Q A Q Yes, I did. Did you tal to Mr. Nelson about his wor history? Yes. What did you discover in your conversations about

his wor history?

employment is he said what employment? Doing drugs. Didn't get straight, so it's hard to hold down employment. But then he went on to discuss his history with the City of Miami homeless program where he reportedly wor ed '97 to '99. And then he said in the year 2000 he began to wor for the County as a social wor er's aide. He would counsel people for substance abuse problems and help place homeless people in shelters.

City of Miami and Miami-Dade, wor ing as a homeless aide, homeless person aide? A Q Roughly between '97 and the end of 2004. Was he on salary with that?

Do you now how long he wor ed as a -- between the

The first thing he said when I as ed him about

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A Q

Yes. Did you review documents from the City of Miami

and from Metro Dade supporting this information that he was employed during that period of time? A Q employee? A Q wor ? Yes. During that period of time did he have problems at Yes. And that he was actually getting paid as an

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been cited and suspended and I believe that that was in the late '90s. I don't have the exact date. And the second problem that he had, he was also suspended and this was for, again, for insubordination. They suspected drug use. He was drug tested and tested positive for both marijuana and cocaine and he was sent through his EAP, Employee Assistance Program, to drug treatment. (Subsequent proceedings were reported but are herein omitted at the request of the ordering party).

10

A Q A

Yes, he did. Can you describe those problems to the jury? The first problem that I saw that Mr. Nelson had

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CERTIFICATE OF COURT REPORTER

STATE OF FLORIDA COUNTY OF MIAMI-DADE

I, BRYNN DOCKSTADER, Court Reporter for the Circuit Court of the Eleventh Judicial Circuit of the State of Florida, in and for Dade County, DO HEREBY CERTIFY, that I was authorized to, and did, report in shorthand the proceedings and evidence in the above-styled cause, as stated in the caption hereto, and that the foregoing pages constitute a true, accurate and correct computerized transcription of my report of said proceedings and evidence. IN WITNESS WHEREOF, I have hereunto set my hand in the City of Miami, Dade County, Florida, this 19th day of February, 2011.

________________________ Brynn Doc stader, RMR