Part 015 · CHAPTER 6: Disease and Capacity | 2 of 2

When the jurors returned, Leah Brogan had moved a yellow legal pad to the center of the prosecution table and left everything else stacked beside it.

Her cross-examination began with money.

"Dr. Kass, you were retained by the defense."

"Yes."

"You are being compensated for your time."

"Yes."

"Your hourly rate is four hundred fifty dollars."

"Yes."

"That includes record review and testimony."

"It includes the work I performed in the case."

Brogan nodded. "Payment does not determine whether your opinion is correct."

Kass looked slightly surprised. "Correct."

"But the jury is entitled to know the relationship."

"Of course."

Brogan moved on so quickly that Darius understood the point had been disclosure, not accusation.

She asked Kass whether severe psychiatric illness automatically meant lack of criminal responsibility.

"No."

"Whether psychosis automatically meant lack of criminal responsibility."

"No."

"Whether a person can be psychotic and still legally responsible."

"Yes."

Darius wrote that one too.

Brogan rested both hands on the lectern.

"Let's separate what a person can say from what a person can appreciate. In your review, did Nora Whitcomb know that the law prohibited killing her children?"

Kass paused.

"There is evidence that she had intellectual knowledge that killing was against the law."

The words changed the pressure in the courtroom.

Brogan said, "So she knew it was illegal."

"In an intellectual sense, yes. That is not the end of the forensic question."

"We'll get there. Did she know Evan would try to stop her?"

"The evidence supports that she anticipated interference from him."

"Did she know clinicians might intervene if she disclosed more specific thoughts about harming the children?"

"She feared that they might."

"Did she know the children could be separated from her?"

"She feared that possibility."

"Did she understand that other people viewed harming the children as something that should be prevented?"

Hale stood. "Objection. Compound and vague as to understand."

Judge Bell nodded. "Sustained. Break it apart."

Brogan glanced at her pad.

"Did Nora understand that Evan would oppose her harming the children?"

Kass's expression tightened. "The evidence supports that she expected Evan would intervene."

"Did she understand that doctors would intervene if they believed the children were in danger?"

"She understood that disclosure of risk could lead to intervention."

"Did she arrange circumstances that reduced the chance of either kind of intervention?"

Hale stood. "Objection to arrange."

Judge Bell said, "The jury will decide what the conduct proves. Doctor may answer whether she considered the evidence."

Kass said, "I considered the timing evidence, the errand, the progress check, and the locked door."

Brogan took one step away from the lectern.

"Those are not random acts, are they?"

"No."

"They are organized."

"Yes."

"Purposeful."

Kass hesitated. "They can be described as purposeful in the sense that the acts served immediate objectives. That does not tell you whether the larger objective was grounded in reality."

Brogan nodded. "If the objective was to avoid being stopped, the acts succeeded in that objective for a period of time."

"Yes."

"If the objective was to keep doctors from learning the full extent of the thoughts, withholding information also served that objective."

Hale objected that the question assumed a motive for nondisclosure.

Judge Bell sustained it.

Brogan tried again. "Did incomplete disclosure have the effect of leaving clinicians without information the family messages later showed?"

"Yes."

"And that affected what risk they could assess."

"Potentially, yes."

Brogan stopped and drank water.

Darius looked down at his notes. The prosecution's facts were not disappearing inside Kass's explanation. She kept admitting them. That made her harder to dismiss.

Brogan said, "Doctor, you used the phrase intellectual knowledge. If a person knows killing is illegal, knows a husband will stop the act, knows doctors will intervene, and takes steps that reduce interruption, what is missing from appreciation?"

Kass folded her hands.

"The word appreciate is doing work there. It is not identical to being able to recite a rule. A person can state that an act is prohibited while severe mental disease distorts what the act means, why it is wrong, or whether the prohibition applies in the way other people understand it."

"So knowing the law is not enough for you."

"Not by itself."

"Knowing others think the act is wrong is not enough."

"Not by itself."

"Knowing people will stop you is not enough."

"Not by itself."

Brogan's voice stayed level. "What would be enough?"

Hale stood. "Objection. The question asks the witness to set the legal threshold for the jury."

Judge Bell looked at Brogan. "Rephrase."

For a moment Brogan said nothing.

Darius's pen hovered above the page.

Then Brogan asked, "What evidence would you consider probative of meaningful appreciation of wrongfulness?"

Kass answered more slowly than before.

"Evidence that the person understood the act as morally and legally wrong in a way that was not overridden or fundamentally transformed by the mental disease. Contemporaneous statements can matter. Conduct can matter. Efforts to avoid accountability can matter. The whole pattern matters."

"Including planning."

"Yes."

"Including concealment."

"Yes."

"Including waiting until the person most likely to intervene has left."

"Yes."

"Including checking how long that person will remain away."

"Yes."

Brogan let four seconds pass.

"And you still reached the defense opinion."

"I reached my opinion after considering those facts, yes."

"Because you interpret those facts as compatible with psychosis."

"Because I considered them in the context of the entire psychiatric and behavioral record."

"But they are compatible with retained responsibility too, aren't they?"

Kass looked directly at her.

"Yes."

Darius looked up.

Brogan did not move.

Kass continued. "That is why this is a forensic judgment rather than a laboratory test. The same behavior can have more than one plausible explanation. My opinion is based on which explanation best fits the entire record, not on a claim that the Commonwealth's interpretation is impossible."

Something in Darius loosened and tightened at the same time.

The answer made Kass more credible. It also returned every disputed fact to the room.

Brogan asked about conformity next.

"A person who delays an act can exercise behavioral control at least for the duration of the delay. Correct?"

"A delay shows the person did not act at every available moment. It does not, by itself, tell you why the person delayed or whether the legal capacity to conform was substantially impaired when the act occurred."

"A person who stops one task, sends a message, resumes another task, moves from one child to another and locks a door is controlling behavior in some sense."

Hale stood. "Objection to the characterization and cumulative phrasing."

Judge Bell said, "Sustained. Counsel, one fact at a time."

Brogan's jaw tightened, but she nodded.

"Did you consider the fact that the acts were sequential?"

"Yes."

"Did you consider evidence of delay and interruption avoidance?"

"Yes."

"Do those facts show some ability to organize conduct?"

"Yes."

"Do they show no ability to control conduct?"

Kass adjusted her glasses.

"That question treats control as all or nothing. The legal question is substantial capacity. My opinion is that severe disease substantially impaired that capacity. I am not saying she had no motor control, no ability to pause, or no ability to perform a sequence."

Brogan said, "Then the ability to pause is still evidence."

"Yes."

"The ability to wait is evidence."

"Yes."

"The ability to change conduct when circumstances change is evidence."

"Yes."

"But none of it changes your opinion."

Hale stood. "Objection. Misstates the testimony."

Judge Bell looked at Brogan. "Ask the doctor what effect the evidence had rather than characterizing it."

Brogan nodded. "Did those facts affect your analysis?"

"Yes. They are among the reasons I considered the question difficult. They did not ultimately change my opinion when I considered the record as a whole."

Darius looked at the sentence he had just written. Difficult. He had expected the defense expert to make her answer sound inevitable. Kass had not done that.

Brogan nodded once.

That answer bothered Darius more than the others.

He wrote: substantial capacity not zero control.

That was obvious once written. It was also exactly where the argument got harder.

Brogan returned to the window of time.

"You agree that Mrs. Whitcomb did not kill the children when Evan was home."

"Yes."

"She did not begin while he was standing in the room."

"No."

"She acted during the period when he was away."

"Yes."

"That choice can be evidence of retained capacity."

"It can be."

"And it can be evidence of retained appreciation."

"It can be."

"But in your opinion it was not enough."

"Not in the context of the whole record."

Brogan looked at the clock on the wall.

Darius expected her to ask the same question again with different nouns. She did not.

"No further questions at this time."

Judge Bell looked toward Hale.

Hale stood. "I will have redirect, Your Honor."

"We'll take a brief recess first."

The court officer rose.

Darius closed his notebook halfway, then stopped.

Around him, the jurors were gathering pens and shifting in their seats. Peter rubbed both hands over his face. Helen Cross kept looking at the witness stand even after Kass reached for her water. Amanda Pierce stacked her notebook square with the edge of the rail.

Darius looked across the courtroom at Nora.

She was watching Hale speak to co-counsel. Her face gave him nothing he was entitled to use about January twenty-sixth.

He looked away.

The testimony had answered one question he had carried since the first day of evidence.

Psychosis did not have to erase planning.

Kass had shown him how organized acts could still occur inside a distorted reality. He no longer needed planning itself to prove the disease was absent. He no longer thought a person had to choose between psychosis and sequence, psychosis and concealment, psychosis and waiting.

That was not the question anymore.

He turned back two pages in his notebook.

Fear of disclosure.

Repeated checks on Evan's return.

He put a small mark beside each phrase.

The defense could explain both facts within severe illness. That did not make the explanation wrong. It also did not tell Darius what evidence, if any, would count against it.

He wrote one sentence at the bottom of the page.

What evidence would change your opinion?

The court officer told them it was time to stand.

Darius capped his pen.

Kass had convinced him that a person could plan inside a delusion.

She had not convinced him that Nora Whitcomb lacked meaningful appreciation that killing her children was wrong.