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Petitioner v. Chappell

United States District Court, E.D. California

March 24, 2014

KEVIN CHAPPELL, Warden of California State Prison at San Quentin, [*] Respondent.


ANTHONY W. ISHII, District Judge.

This matter is before the Court on the request of Petitioner Ward Francis Weaver ("Weaver") for further evidentiary hearing as to Claims 1 and 2 of his federal petition. The request is accompanied by full merits briefing of Claims 1 and 2 as well as 13 offers of proof in the form of exhibits (for which he requests record expansion). Weaver's efforts are opposed by Respondent Kevin Chappell, Warden of California State Prison at San Quentin (the "Warden"). The Court finds that Claims 1 and 2 are without merit and denies those claims on that basis. In addition, having thoroughly reviewed portions of the police reports appended to the August 10, 1982 declaration in support of Weaver's arrest for the present case, some guilt phase proceedings (including Weaver's testimony), the entirety of the sanity and penalty proceedings, a number of declarations attached to both state habeas petitions, the Court directs the parties to file further, discrete briefs on the issue of ineffective assistance of counsel and Claim 18 of the petition as described in this Memorandum Order.

I. Summary of the Case

Thirty-seven year old Weaver, [1] an allegedly schizophrenic, traumatized Vietnam veteran, [2] amphetamine-addicted truck driver, was driving his fully loaded truck westbound on the Tehachapi pass (Highway 58), in Kern County, late on February 5, 1981, when he noticed a disabled automobile on the eastbound side of the highway.[3] He turned his truck around at the next overpass and stopped to offer the stranded young couple a ride to Mojave. They accepted. At this point, according to the defense, Weaver was hearing conflicting voices about what to do with the young woman, Barbara Levoy. After only about five miles of eastbound travel, Weaver pulled to the side of the road and asked the young man, Robert Radford, to help him shift the load on the flatbed trailer. Ms. Levoy remained in the truck cabin. Responding to the "male voice" and ignoring the "female voice, " Weaver struck Mr. Radford on the back of the head with a metal "cheater" bar causing him to fall off the back of the flatbed, screaming.[4] Weaver testified during guilt phase proceedings that he jumped off the flatbed and hit Mr. Radford a few more times to quiet his yelling. Weaver told mental health examiners he kept hitting Mr. Radford to silence the screams, which apparently were very agitating and disturbing to him. When Mr. Radford was found later by a passing motorist, he was still alive, but died on the way to the hospital.

After striking Mr. Radford down, Weaver returned to the truck cabin, was unsure what to do next, but in response from questions from Ms. Levoy told her that Mr. Radford would be returning shortly. According to Weaver, at the suggestion of the male voice, he displayed a knife to Ms. Levoy, and directed her to sit with her head between her knees, hands behind her head, prisoner-style, a stance Weaver learned from his Vietnam service. Weaver proceeded eastbound on Highway 58 and within a mile and a half, reversed the direction of the truck and headed west toward Bakersfield on his way to San Francisco (his original direction of travel and destination). After that initial displaying of the knife, Weaver testified that he did not threaten Ms. Levoy with physical force again.

Some hours later, again, allegedly responding to the dominant male voice, he raped Ms. Levoy on the way to San Francisco just past Kettleman City on Interstate 5.[5] After depositing his load in San Francisco, Weaver, with Ms. Levoy aboard, made another pickup and delivery (from Oakland to Vallejo) and then took a circuitous route to his home in Oroville. Weaver referred to it as "the long way."[6] Before meeting his wife in at the restaurant where she worked, he stopped in a secluded location north of Oroville and directed Ms. Levoy out of the truck. He bound her hands and feet with tape, but when he told her he intended to leave her overnight at this location and attempted to gag her, she bit him severely on the thumb. The defense was that he blacked out upon being bitten and accidentally strangled her while trying to get her to release his thumb from her teeth. Realizing she was dead, he again didn't know what to do until the male voice told him to dig a grave and bury her. He did so and met his wife as planned at the restaurant. He then used his wife's car to return to Ms. Levoy's grave, exhumed her body, placed it in the trunk of his wife's car, and drove home.

He greeted his three children at home, who noticed his bloody thumb. With the children in bed, Weaver placed Ms. Levoy's body in a trench for a sewer line he and his son had begun to dig earlier in his backyard. The next day, he poured cement over this shallow grave. Later Weaver re-exhumed the body and moved it to a deeper grave, and then built a wooden platform over it, ostensibly for his wife to use to hang out the laundry, but, as admitted on the witness stand, in reality so the ground wouldn't sink. Weaver was not apprehended for these crimes until after he was convicted in Ventura County for another crime that began three months later, on May 4, 1981.

On that occasion, Weaver picked up another young couple, an 18-year-old young man, David Galbraith, and his 15-year-old girlfriend, Michelle DeLong, in Medford, Oregon. Weaver, riding with his 10-year-old son, agreed to drive the young couple to Yreka, California to stay with Ms. DeLong's uncle. Because the uncle was not home, Weaver offered to let them sleep in his truck when he arrived home in Oroville. A day or two later, he took them to Ventura, where he had a delivery, and offered to help Mr. Galbraith find a job. Instead, Weaver introduced Mr. Galbraith to an acquaintance, who drove the young man into the forest, shot him three times in the head, and left him for dead. Despite his severe injuries, Mr. Galbraith survived. In the meantime, Weaver purportedly took Ms. DeLong to make a short delivery run. Instead, he raped her at gunpoint, later forced her to orally copulate him, and returned to Oroville. The next day he dropped her off in Marysville, where she eventually went to the police. While serving time for these crimes, Weaver confessed the Radford/Levoy crimes to a co-inmate, Ricky Gibson. During cross examination of one of Weaver's witnesses, [7] the prosecutor, Ronald Shumaker, elicited that the Ventura charges included rape, unlawful intercourse with a minor, forced oral copulation, kidnapping, and conspiracy to commit murder.[8]

The jurors also learned that four years prior to the Radford/Levoy crimes Weaver was convicted of assault with a deadly weapon against a woman, Bonnie Brown, in Humboldt County.[9] The incident occurred very late on the night of September 22, 1976 or very early on September 23, 1976. From Ms. Brown's place of employment, at a Eureka bowling alley, she and Weaver drove separately for coffee and soft drinks at a local Denny's Restaurant. They then drove (separately) to a truck stop where Weaver had a truck. The reason for the assault is unclear, but what is clear is that Weaver pleaded guilty on May 2, 1977 and was paroled in February 1979.

II. Procedural History

After his arrest (at San Quentin State Prison where he was serving a 42 year to life sentence for the Ventura crimes) Weaver appeared in the Kern County Municipal Court on August 18, 1982 to be arraigned. CT-1: 135. The arraignment was held over to the following day, August 19, 1982, at which time David Huffman was appointed to represent him. Id.: 136. After the preliminary examination hearing, the sexual assault charges involving Ms. Levoy (rape, sodomy by force, and oral copulation by force) were dismissed for lack of evidence. Id.: 137. Following Weaver's first appearance in the Kern County Superior Court on September 19, 1982, competence proceedings under California Penal Code § 1368 were commenced. Donnalee Mendez was appointed as co-counsel on June 8, 1983.[10] Ms. Mendez and Mr. Huffman married on September 15, 1983. (Ms. Mendez hereafter is referred to as "Mrs. Huffman.")

Trial proceedings resumed before the Honorable William A. Stone in April 1984, with jury selection commencing on October 9, 1984. Guilt phase proceedings concluded with the jury verdict of guilty on two counts of murder (as to both victims) and one count of kidnapping, as to Ms. Levoy, on December 19, 1984. The death eligibility special circumstances were kidnap as to both victims and multiple murder.

The sanity phase was delayed until January 14, 1985 due to illness of Mr. Huffman, purportedly for throat problems. The sanity phase proceedings largely were conducted by Mrs. Huffman. Nonetheless Mr. Huffman remained present on and off through February 8, 1985, even conducting some examination and making arguments to the court. He was not present at all on the last 10 days of the proceedings (over the period of February 11 through February 28). After a lengthy sanity phase, the jury returned a verdict that Weaver was not insane after fewer than 42 minutes. The penalty phase trial, conducted entirely by Mrs. Huffman, began on March 5, 1985, with a verdict for the death penalty on March 7, 1985.

Weaver's automatic motion to set aside the death penalty was denied on April 4, 1985 and he was sentenced to death the same day. On his automatic appeal, the California Supreme Court affirmed his conviction and sentence on August 20, 2001. People v. Weaver, 26 Cal.4th 876 (2001). His first state habeas petition, filed September 28, 1998 (hereafter "First State Petition") was denied on November 14, 2001 (Case No. S073709). The state counterparts to Claims 1 and 2, herein, were raised in this initial state petition in Claim 1 (parts B. and C.) and denied summarily on the merits with no procedural bars.

Certiorari regarding his direct appeal was denied by the United States Supreme Court on May 13, 2002. A few days later, on May 17, 2002, Weaver commenced the present federal action with a request for appointment of counsel and a stay of execution of his sentence (doc. 1). The original May 31, 2002 appointment of counsel (doc. 4) was adjusted on January 6, 2003 with the appointment of current counsel, the Habeas Corpus Resource Center and CJA attorney Karen Schryver (doc. 21). Assisted by counsel, Weaver filed his federal petition for habeas corpus in federal court on May 5, 2003 (doc. 32). The petition was represented to be fully exhausted, but Weaver also developed new claims he needed to present to the California Supreme Court. He did so, on May 6, 2003 (Case No. S115683) in his second state petition (hereafter "Second State Petition"). The Warden disputed Weaver's assertion that the May 5, 2003 federal petition was fully exhausted, arguing that the legal bases for seven sub-claims and the factual bases of 29 sub-claims had not been presented to the California Supreme Court. On January 7, 2004, the Court entered an order finding that the legal bases for two sub-claims were unexhausted, but the remainder of the claims and sub-claims either had been fairly presented or did not change the character of the underlying claim (doc. 48).[11] The Court ordered federal proceedings to be held in abeyance pending state exhaustion proceedings on March 16, 2004 (doc. 56). The California Supreme Court summarily denied the Second State Petition on August 26, 2009.

Weaver filed his amended federal petition on September 1, 2009 (doc. 107). This pleading is the operative petition. The Warden answered the petition on March 30, 2010 (doc. 116) and thereafter in a joint statement filed on May 24, 2010 (doc. 120) confirmed that exhaustion and the statute of limitations were fully satisfied.[12] On June 2, 2010, the Court ordered briefing on the petition limited to Claims 1 and 2. In these claims Weaver alleges deprivation of counsel at critical stages of his state trial, failure of his trial attorneys to subject the prosecution to meaningful adversarial testing under Cronic v. United States, 466 U.S. 648, 659 (1984), and a conflict of interest. These claims stem from alleged mental and physical illnesses of Mr. Huffman caused by his alcoholism and Korean War combat induced post-traumatic stress disorder, as well as personal financial difficulties involving both Mr. Huffman and Mrs. Huffman. Weaver was directed to combine his brief of these claims with a request for further evidentiary development pursuant to Rules 6 (discovery), 7 (record expansion), and 8 (evidentiary hearing) of the Rules Governing § 2254 Cases (doc. 121). Weaver's opening brief was filed on August 8, 2011 (doc. 149), followed by the Warden's opposition on March 7, 2012 (doc. 156), and Weaver's reply on July 10, 2012 (doc. 160).

III. Relevant Record Proceedings

Claim 1 focuses solely on the constructive absence of counsel altogether as to sanity and penalty phases. Although Claim 2 extends to Weaver's guilt phase proceedings as well the sanity and penalty phases, the Court finds it unnecessary to summarize the guilt phase proceedings to resolve that claim, as explained in Part VI.D., infra. Accordingly, only the sanity and penalty phase proceedings will be reviewed here.[13] Because the presentation of the sanity phase was somewhat disorganized and repetitive, references to the reporter's transcript are not provided in this summary. Commencement of the sanity proceedings also was delayed. After the jurors had reached their guilt phase verdict on December 19, 1984, Judge Stone instructed them to return on January 7, 1985. He instructed counsel to return on January 2, 1985 to discuss evidentiary matters and scheduling. Explanations on these topics on behalf of the defense were given largely by Mr. Huffman. When the jurors returned on January 7, 1985, Judge Stone directed them to return on January 14, 1985 due to what he described as Mr. Huffman's lingering laryngitis.

A. Sanity Phase

The Huffmans organized 22 witnesses to be called in nine categories in the defense case-in-chief. Mr. Shumaker called eight witnesses in his case, and two more witnesses were called for Weaver in rebuttal. This evidence, argument of counsel, jury instructions, and jury deliberations are summarized below.

1. Defense Case

Mr. Huffman delivered the opening statement, foretelling that the defense witnesses would show Weaver suffered from schizophrenia as well as post-traumatic stress disorder ("PTSD"). He promised the evidence would show Weaver "was predisposed to being a homicidal killer, " that there was a "love-hate relationship" with this mother, and that he had a premorbid personality. In her declaration, Mrs. Huffman avers that this "madman" portrayal, which Weaver now strongly criticized, apparently was augmented by Weaver's appearance at the sanity proceedings at the direction of his attorneys.[14] Two of Weaver's jurors averred in post-conviction declarations that the Huffmans tried to make Weaver look mentally ill by having him appear in court dirty, disheveled, unkempt, and inappropriately disruptive. When the penalty proceedings commenced, Weaver was neat and clean cut. Declaration of Edmund Rice, Exhibit 17 to the First State Petition, ¶¶ 4-5; Declaration of Clara Sue Haney, Exhibit 18 to the First State Petition, ¶¶ 2-3. Weaver's former wife, Patricia Budrow Weaver, also averred that she was surprised by Weaver's appearance when she testified at the guilt phase. Declaration of Patricia Weaver, Exhibit 2 to the First State Petition, ¶ 33. After the opening statement, Mrs. Huffman elicited all evidence during the sanity proceedings, except for brief input from Mr. Huffman, as more fully explained in Part III.A. j., infra.

a. Family History of Schizophrenia

Psychiatrist Albert Raitt, M.D. and Butte County Deputy Sheriff Rover Levey were called to confirm that Weaver's maternal aunt, Kathryn Bernardo, and her daughter, Lucia Bernardo (Weaver's cousin), both were afflicted with schizophrenia.[15]

b. Dysfunctional Sibling Relationship

Weaver's sister, Katie Smith, who was 16 months younger than he, [16] described sadistically horrible acts Weaver perpetrated on her from the time they were young children until they were young teenagers. When Ms. Smith was five and Weaver was six, he chopped off her index finger with an axe. Although she thought it was accidental at first, she later came to believe it was intentional. The defense team adopted the intentional explanation. Next, when Ms. Smith was six and Weaver was seven, he tied her to a tree and told her he was going to hang her. He actually made a noose and started putting it around her neck but stopped when she cried and screamed. He then took the noose off, but left her tied to the tree for some time and threatened her if she tattled to their parents. When she was between six and nine years old, Weaver and she were in a field where there were 15 to 20 head of cattle. Weaver intentionally "stampeded" the cattle toward Ms. Smith. During this same three-year time period, Ms. Smith and Weaver were playing near an old tool shed. She went in and then Weaver locked the door from the outside. He set fire to the shed with her trapped inside, laughing the whole time before finally releasing her. The two of them were unable to extinguish the flames which then spread into a forest fire. When she was seven, eight, or nine years old, Weaver and his friend named Jerry Daniels, [17] tied her up and inserted sticks into her vagina to the point of hurting her. When she was 12 and Weaver was 13, he raped her. Ms. Smith told no one. Finally, when she was 12 to 13, she saw Weaver and another boy torture a cat.

Besides testifying about the sadistic treatment perpetrated on her by Weaver, Ms. Smith also gave some insight into the family dynamics when she and Weaver were growing up. She mentioned that although during one period of their lives growing up when their father worked nights and they rarely saw him during the week, on weekends he and Weaver spent time together working on cars or building pens for the animals Weaver was raising. As for friends, when the family lived in Eureka, Weaver and Ms. Smith "played" with two siblings from the Lopez family, who lived nearby. Ms. Smith also mentioned Jerry Daniels as a friend Weaver spent time with and his (Weaver's) "only real friend, " Larry Digby, a "loner" like Weaver. She stated that Weaver was happiest when he could spend time with the animals he raised and was a member of the FFA. As far as girls, Ms. Smith mentioned Ladell, Sharon, and Ernestine before Weaver's soon-to-be first wife, Pat Budrow, moved into the Weaver home. Ms. Smith judged the time between Pat's residence at the Weaver home until she and Weaver were married was about a year.

c. Attempt to get help in Texas

Weaver's paternal cousin Russell Mathiasch, from Texas, testified that Weaver and his father came to Texas to try to get Weaver admitted to two separate Veterans Administration ("VA") Hospitals to help him with his medical problems. Neither the Dallas nor the Waco facilities could admit him. Weaver and his father made this trip in 1977 while Weaver was under charges for assaulting Bonnie Brown in Humboldt County.

d. Mental State Evaluations Relative to the 1977 Humboldt County Conviction

Three mental health professionals who evaluated Weaver in connection with his Humboldt County conviction came next: psychiatrist Robert Gardner, M.D., psychiatrist Alfred Owre, M.D., and psychologist Jack Tolchin, Ph.D.

(i) Dr. Gardner

According to his report, Dr. Gardner evaluated Weaver on April 12, 1977, prior to sentencing, to assist the trial court with that process. Exhibit 110 to First State Petition.[18] He found Weaver to be mistrustful and suspicious of people almost to a "paranoid degree." Weaver reported having very few friends because his friends took advantage of him. Weaver did say that during his four-year marriage to his first wife he had assaulted her on a number of occasions, once seriously enough to require medical attention. Dr. Gardner concluded that Weaver's mother was overprotective, domineering, and prone to being physically abusive. Dr. Gardner mentioned in both his testimony and in his report that Weaver's mother often awakened him by slapping him in the face. In his report he mentioned that Weaver perceived his father as being very strict and that Weaver had trouble communicating with him. This was consistent with Dr. Gardner's testimony that Weaver perceived his father as being remote and strict. In his report, he described that Weaver's upbringing "sounded punitive and maladaptive." Dr. Gardner felt that Weaver would be a threat to others unless he underwent psychiatric treatment after he was discharged from prison. He did not have the impression Weaver was malingering, manipulating, or being untruthful during the interview. His diagnosis was that Weaver suffered from a psychotic depressive reaction and reality distortion. In the time allotted, Dr. Gardner could not discover the reason for Weaver's condition. He opined that Weaver's intelligence was in the low-normal range. On cross examination, Dr. Gardner stated he reported that Weaver had denied hallucinations. He also testified that he had no recollection of evaluating Weaver independent of his report. His report, however, does not state that Weaver "denied" hallucinations and delusions. What Dr. Gardner wrote was: "there were no hallucinations or delusions found, although he [Weaver] is mistrustful of people to an almost paranoid degree." Exhibit 110 to First State Petition, p. 2.

(ii) Dr. Owre

Dr. Owre evaluated Weaver upon his arrival at the California Men's Colony in San Luis Obispo. At that time, in November 1977, Dr. Owre reported he found Weaver to be without psychiatric symptomology (including schizophrenia), but did note Weaver's relationships with women were "distorted." Dr. Owre found Weaver's main problem to be his pathological relationship with women. He diagnosed Weaver as having a passive aggressive personality with depressive and sadomasochistic features (because he had disturbed relationships with and derived emotional relief by inflicting pain on women). A person with this type of diagnosis would have very little impulse control. During his incarceration at the Men's Colony, Weaver was a "model inmate, " being discipline-free, getting along with others, and conforming to prison rules. Weaver was not given anti-psychotic medication during his incarceration at the Men's Colony. Based on the history Weaver gave him, Dr. Owre felt Weaver's parents were brutal and well as over protective. The fact that his first wife left him for another man nurtured Weaver's hatred for women. Dr. Owre estimated Weaver's to have "high normal" intelligence.[19]

During redirect examination, Dr. Owre stated that as a result of his observations of Weaver from the witness stand, he believed Weaver was "suffering from a chronic undifferentiated schizophrenic condition... responding to internal messages... [and] to have deteriorated markedly since [Dr. Owre and staff] had last seen him at the Men's Colony." The prosecutor made an immediate effort to minimize that observation by noting (in the form of a question) that Weaver had been smoking and conversing with other people during breaks in the proceedings and that Weaver had testified during the guilt phase in a rational manner.[20]

Outside of the jury's presence on the following day, the trial court concurred with Mr. Shumaker's disdain for Dr. Owre's declaration from the witness stand and his impression of Weaver's present mental state. Acknowledging his responsibility under Penal Code § 1368 to call for a hearing if he had a doubt about Weaver's competence, Judge Stone stated he didn't think that the opinion Dr. Owre expressed while answering questions from counsel and without examining Weaver in five years raised a doubt in his mind about Weaver's competence. Judge Stone further stated he did not believe a doctor would be able to diagnose someone from the witness stand and after further argument from Mr. Shumaker, concluded that Weaver' current competence was not in question. Mrs. Huffman noted only that Weaver was cooperative but didn't always understand what was going on in the proceedings. In her post-conviction declaration she avers that she did not ask the court to declare a doubt of Weaver's competence because she personally thought "he was trial competent." Exhibit 34 to First State Petition, ¶ 30.

(iii) Dr. Tolchin

Dr. Tolchin, a staff psychologist for the Men's Colony, conducted counseling sessions with Weaver for about six months during Weaver's incarceration. In October 1978, Dr. Tolchin noted that Weaver's passive aggressive personality with depressive and sadomasochistic features (the same diagnosis given by Dr. Owre) were in remission. He clarified that Weaver did not suffer from a mental problem, but rather a personality disorder. In his October 3, 1978 report to the board of the community parole board, Dr. Tolchin stated that Weaver was earnest in trying to work out his problems, as evidenced by his regular attendance at counseling sessions. Exhibit 117 to First State Petition. His testimony was to the same effect. He hoped Weaver would continue therapy outside of prison to re-establish amicable relations with his wife and work on improving his self-esteem once he was paroled in February 1979. Dr. Tolchin felt that Weaver's severe personality disorder carried with it a potential for violence.

e. Mental State Evaluations Relative to the 1981 Ventura County Conviction

The next three witnesses evaluated Weaver in 1981 relative to the May 1981 Ventura crimes. Two of these three witnesses, George Chappell, M.D. and Theodore Donaldson, Ph.D., assessed Weaver's sanity under Penal Code § 1026. They brought with them their prior reports and notes, but received no additional information to review from the Huffmans. They did, however, receive additional documents from the prosecutor, Mr. Shumaker, including the transcript of Weaver's custodial statement for the Radford/Levoy murders and the statement of co-inmate Ricky Gibson to whom Weaver divulged his involvement in the Radford/Levoy murders. Drs. Chappell's and Donaldson's respective reports have been made part of the state court record (but not exhibits at Weaver's trial). Exhibits 58 and 59 to First State Petition.

i. Dr. Chappell

At the time of their July 1981 interview, Weaver told Dr. Chappell he was taking 600 mg. of the anti-psychotic medication Mellaril. Dr. Chappell testified he harbored doubts about this claim because Weaver showed none of the side effects for Mellaril (dry mouth and the appearance of sedation), but didn't check the medical records in Weaver's file.[21] Dr. Chappell diagnosed Weaver with a history of amphetamine abuse, which is a psychiatric condition, and adjustment disorder with depressive reaction (because of his incarceration). He suspected, but wasn't certain, that Weaver was malingering on some symptoms. On cross examination, he clarified that an adjustment disorder is a psychiatric condition but not a mental defect or disease. As a result of his interview, Dr. Chappell felt Weaver was of average intelligence based on the fact that Weaver told him he completed two years of college.[22] Dr. Chappell determined that Weaver neither described nor showed symptoms of schizophrenia or true psychosis during his evaluation. He also testified he felt a competent mental health professional could make a diagnosis in the first hour of evaluation, and he spent twice that long. Dr. Chappell doubted Weaver experienced auditory hallucinations (as Weaver had reported to him). He also doubted schizophrenia because if Weaver had schizophrenia, he would have had an episode during combat in Vietnam. He did not feel Weaver was insane at the time of the Ventura crimes.

ii. Dr. Donaldson

As a psychologist, Dr. Donaldson administered both the Minnesota Multiphasic Personality Inventory ("MMPI") and the Rorschach Projective Personality test. He testified Weaver seemed to be somewhat out of touch during their interview.[23] On the MMPI, Weaver scored acceptably on the L (lie) scale and the K (defensiveness) scale, meaning that he was being open and honest. He had a very high (as in totally off the scale) on the F scale, indicating either exaggeration or a great deal of confusion.[24] The prominent factors about his interview with Weaver were that he (Weaver) heard voices, was very angry, and was very angry with women in particular.[25] As Dr. Donaldson understood it, these voices consisted of two competing male voices and a female voice (a total of three voices).[26] Dr. Donaldson thought, but was not certain, that the reported auditory hallucinations might have been fabricated, that Weaver "was obviously exaggerating his symptoms, " but did demonstrate a "very schizoid adjustment, " that is, and he was socially withdrawn. Dr. Donaldson determined Weaver's Axis I diagnosis was dysthymic disorder (that is, depressive neurosis), which he self-medicated with amphetamines, and his Axis II diagnosis was borderline (or mixed) personality disorder. Weaver's lack of impulse control was consistent with both anti-social personality disorder ("ASPD") and schizophrenia. He concluded Weaver was not insane at the time he raped the 15 year old girl (from the Ventura crime) because he thought about it and did it because he wanted to. With respect to history, Dr. Donaldson concluded that Weaver had an unhappy and sickly childhood and tended to be socially withdrawn from other people. From their discussions about Vietnam, Dr. Donaldson learned that Weaver liked, or even loved, to blow things up while he was working demolition and had quite a bit of trouble getting into the service.[27] On re-direct Dr. Donaldson conceded that the evaluation he did of Weaver was superficial. A longer period of observation plus interviews with parents, siblings, teachers, and similar persons would have yielded a better diagnosis. Also, he indicated that if he had heard Weaver's confession tapes, rather than just reading the transcript, he might have had a more in-depth understanding, since he could not tell by reading the transcript that Weaver was crying when he talked about the crimes.[28] He explained that even if he had known about a Weaver family history of mental illness, notably, schizophrenia, he would not have changed his mind about Weaver's sanity at the time of the Ventura crimes. With respect to the Radford/Levoy murders, Dr. Donaldson was particularly struck by the anger Weaver expressed while he was choking Ms. Levoy (as related by Ricky Gibson). It reinforced in Dr. Donaldson's mind Weaver's "enormous" anger against women as Weaver expressed during their interview. At the very end of Mrs. Huffman's re-direct examination, she asked if Dr. Donaldson's opinion would change if he knew that Weaver had blacked out after Ms. Levoy bit him and then didn't realize he was choking her until she was lifeless. Dr. Donaldson testified that if Weaver had dissociated during the killing, that could have been an indication of insanity and that more investigation would have been necessary.

iii. Mr. Rose

The third of the Ventura offense-related witnesses was Mr. Rollin Rose, [29] a staff psychologist (with a master's degree), at the Chino correctional facility. He gave Weaver a battery of psychological tests to determine placement for the Ventura crimes. He provided a diagnosis of "personality disorder, passive aggressive personality with schizoid features, and sexual sadism." He found no symptoms of psychosis. On cross examination, Mr. Shumaker elicited a statement in Mr. Rose's report that Weaver expressed "intense hostility toward women." Mr. Rose administered the Wechsler Adult Intelligence Scale (IQ) test to Weaver and found an IQ of 96, a low level of intellectual functioning. Mr. Rose could not recall any information about Weaver when he was contacted by Weaver's current counsel. In his declaration he averred that this recollection could not be refreshed. Exhibit G to Weaver's brief.

f. "Team" Mental Evaluation regarding the Present Offense

In addition to calling mental health experts who had evaluated Weaver previously and four PTSD experts, Mr. and Mrs. Huffman hired a team of mental health experts to evaluate Weaver for the schizophrenia defense relative to the Radford/Levoy crimes. The team consisted of psychiatrist Jack Shonkwiler, M.D. and four members from Affiliated Psychologists: psychologists, K. Edward Dietiker, Ph.D. and Kathe Lundgren, Ph.D., plus two psychologist assistants, Mary Cholet[30] and Will Powers.[31] Each team member from Affiliated Psychologists administered various (different) psychological tests to Weaver in order to assess different parts of his mental functioning. Dr. Shonkwiler's diagnosis of Weaver, from the perspective of a psychiatrist, was informed by those tests - particularly the Rorschach test given by Dr. Dietiker and the MMPI given by Dr. Lundgren.

i. Dr. Shonkwiler

A side issue respecting Dr. Shonkwiler's qualification as an expert was the fact that he was practicing psychiatry under an "impaired" license, supervised by another psychiatrist. The reason for the impairment on his license was unrelated to his competence as a mental health expert. During his cross examination, however, Mr. Shumaker emphasized that that Dr. Shonkwiler was on 10 years of probation with the Board of Medical Quality Assurance, beginning in 1980. According to Mrs. Huffman in her post-conviction declaration, Mr. Huffman was very angry to learn of Dr. Shonkwiler's impaired license, but by the time he learned of it, there was no time to retain another psychiatrist. This fact added to his already high stress level. Exhibit 34 to First State Petition, ¶ 8.

Dr. Shonkwiler's direct examination lasted almost the entire day on February 4, 1985 through a short time after the lunch recess on February 5, 1985. In the course of Dr. Shonkwiler's lengthy testimony, he reviewed Weaver's childhood abuse, attributes of the "disturbing" relationship with his sister, a love-hate relationship with his mother, which may have included incestuous elements, reports of other clinicians, the fact of Weaver's amphetamine abuse, and his life-long symptoms of paranoid schizophrenia, undifferentiated schizophrenia, and PTSD. Utilizing slides from Diagnostic Statistical Manual, Volume III ("DSM III"), Dr. Shonkwiler explained the symptoms Weaver exhibited that fit the criteria established for schizophrenia and PTSD. Dr. Shonkwiler was aware that the mother was hostile to men in that she told Weaver she wanted to line up all men (except Weaver) and cut off their penises. Dr. Shonkwiler also interviewed Weaver's mother (for about an hour) and Weaver's sister (for about 45 minutes), as well as Weaver (for about two hours) in 1983. He opined that Weaver was legally insane at the time of the crimes against Mr. Radford and Ms. Levoy due to his inability to conform his behavior to the requirements of law. Although Weaver knew the difference between right and wrong, his impulse control was very poor. He exemplified the definition of irresistible impulse.

Three aspects concerning Dr. Shonkwiler affected his credibility, all brought out by Mr. Shumaker during his cross examination. First there was his impaired license to practice medicine, mentioned above. Second was his conclusion that Weaver most likely suffered sadistic toilet training because of the information he read about the "blisterings, " bites, and hair pulling punishment Weaver received from his mother as an older youngster and teenager. The conclusion admittedly was speculation. The third aspect related to how he arrived at the diagnoses for both schizophrenia and PTSD. For schizophrenia, he relied on the reports and work leading up to the reports of psychologists Dr. Dietiker and Dr. Lundgren. As to PTSD, he didn't consider or include this diagnosis when preparing his December 1983 report, but resisted emphasizing military experience because of his own personal "countertransference" about the Vietnam War.[32] He adopted the PTSD diagnosis in January 1985 only after reviewing the conclusions and assessments of the four PTSD experts.

ii. Dr. Dietiker

Next, Dr. Dietiker spent between 11 and 12 hours testing, interviewing, scoring, and integrating test results. The tests were given in late August 1983.[33] Five hours of that time was spent "face-to-face" with Weaver. Dr. Dietiker conducted three tests, the 16 Personality Factor Test, the Wolpe's Fear Survey, and Rorschach test, plus a psychodiagnostic interview. The actual testimony was extremely tedious and dry. Results from the 16 Personality Factor Test showed Weaver was an extremely anxious individual with very little regard for the morals and convictions of society, as well as very little regard for controlling himself according to those morals and convictions. In sum, Weaver indulged himself, was not dependable, followed his own urges, lived for himself, and did not respect the rights of others. On the Wolpe's Fear Survey, Weaver scored extremely fearful to 31 of 108 items on the survey. Typically, people do not report extreme fear on more than five items. Another unusual factor about Weaver was that he did not feel the scale, that is 1 to 5, was sufficient to convey his level of fear; he wanted to go beyond 5. The situations he most feared included feeling rejected, being criticized or ignored, losing control of himself, being mentally ill or a homosexual, and being in an enclosed place. Although Weaver's unusually high score, suggested the possibility he might have been faking his anxiety, on the Rorschach test, while several of Weaver's responses were typical of normal people, the vast majority of those responses were unusual and strongly suggested marked thought disorder. Many of his precepts were distorted, showing a great amount of preoccupation with sexual imagery while his clear responses were highly personalized in a paranoid way. As was common for sadistic people, Weaver also saw implements of punishment or degraded human bodies where normal people would not. His descriptions of death images were consistent with responses of depressed people and his descriptions of seeing images of someone being attacked were consistent with responses of paranoid people.

All the tests results, taken together, convinced Dr. Dietiker that Weaver suffered from psychosis, specifically, paranoid schizophrenia and a marked inability to control his impulses. On cross examination, Mr. Shumaker focused on the situations in which Weaver had been able to maintain his self-control, including sitting in the courtroom while Dr. Dietiker revealed the very personal and uncomplimentary facts about Weaver's test results, suggesting that Weaver consciously acted on his desires only when he encountered an attractive woman he wanted sexually and thought he would not be caught. In response, Dr. Dietiker conceded that Weaver's lack of impulse control upon encountering a vulnerable attractive woman could be viewed as a symptom of ASPD. Mr. Shumaker also suggested that Weaver could have "faked sick" on the Rorschach test because he had taken the test on a previous occasion. Dr. Dietiker did not believe it was possible for Weaver to have "faked it, " as even his advanced psychology students weren't able to do so. Mr. Shumaker emphasized Dr. Dietiker's initial impression from the Wolpes's Fear Survey that Weaver might have been faking his anxiety. Mrs. Huffman rehabilitated him on re-direct by eliciting his conclusion that Weaver suffered from a great deal of paranoia. Dr. Dietiker did not believe Weaver was trying to convince him that he (Weaver) was psychotic. In the end, however, he could not say that Weaver had been out touch with reality on February 5 and 6, 1981 when the Radford/Levoy crimes were committed.

iii. Dr. Lundgren

Dr. Lundgren was the leader of the psychological team that conducted testing on Weaver. She assigned a total of 14 tests plus psychodiagnostic interviews to be administered by each of four the team members, Dr. Dietiker, Mary Cholet, Wil Powers, and herself. Her personal evaluation of Weaver was informed by her psychodiagnostic interview, the MMPI, the House-Tree-Person Test, and the Leary Interpersonal Checklist. She spent five and a half hours with Weaver face-to-face, plus additional time scoring and interpreting the results. She also wrote a report and conferred with the other team members. One of the tests administered by Wil Powers was the Wechsler Adult Intelligence Scale. Weaver's IQ was in the 85 to 90 range, which is low normal.

Dr. Lundgren initially thought Weaver was "faking sick" on the MMPI, but after reviewing all of his test results, she concluded that he fit the profile of a schizophrenic, suicidal, depressed, and withdrawn individual. On the House-Tree-Person Test, Weaver's drawings indicated he had a "very inadequate personality, " and a "low self-concept and psychotic processes at work." She believed Weaver possibly was schizophrenic in the way he made his four drawings. Weaver's responses on the Leary Interpersonal Check List is test similarly indicated he "had about the lowest perception of self in terms of his actual character structure" compared with the way he would like to be. His self-perception was at the bottom of the scale. A person scoring in that manner would be at risk for suicide. On cross examination, Dr. Lundgren testified that during the psychodiagnostic interview, Weaver told her that he picked up female hitchhikers while driving his truck and then had forcible sex with them. He mentioned the female voice he heard, trying to talk him out of this conduct. He made no reference to the male voice urging him to proceed with the rapes or otherwise.

Taking into account the various acts of violence and terror Weaver perpetrated on his sister Katie when they were children, Dr. Lundgren suggested that Weaver was trying eliminate his sister because he looked at their mother as the sole source for affection and he didn't want to share. Dr. Lundgren explained that a characteristic of some schizophrenics was that love and affection were available in only very small quantities from a single person. The solution for such a person would be to get rid of or devalue the competitor. Weaver had such a severe personality disorder that he could transfer into psychotic thinking upon perceiving a threat to his source of affection. His psychosis caused him to misinterpret the stress and his personality disorder dictated his inappropriate conduct.

She testified that if an examiner were to just look at and talk to Weaver, which is one method of assessing behavior, the examiner would not come up with the underlying psychosis because the personality disorder was so extreme and stood out. Had Dr. Lundgren spent less time with Weaver and only conducted an interview with the MMPI, she would have missed the psychosis. She would have come up with a diagnosis of a severe character disorder of a sexual sadomasochistic type. Dr. Lundgren's final diagnosis of Weaver was 1) chronic, undifferentiated schizophrenia and 2) psychopathic personality. After conferring with the other three examiners, she did not change her diagnosis; rather the information she received confirmed her diagnosis. Only Dr. Dietiker agreed with her that Weaver suffered from schizophrenia, but all four examiners agreed Weaver was afflicted with a sociopathic personality (ASPD). Dr. Lundgren refused to opine whether Weaver was insane at the time of the crimes because insanity was a legal term. She had no ambivalence or hesitation when formulating her diagnosis.

g. Long-time Friends

Next to testify were long-time friends and half-brothers Del Roy Barnett and Jesse Mooreland. Both testified they spent time with Weaver fishing, working, and "hanging out" when they were in their late teens and early twenties. They described Weaver as easy-going and someone who stood in the background. After Vietnam, however, Weaver was more prone to violence and assertiveness. Mr. Barnett noticed that Weaver didn't enjoy fishing as much as he did prior to his service. Both also testified that they had observed Weaver talking to himself. Mr. Barnett observed this when he accompanied Weaver on a long-haul drive, but Mr. Barnett did not consider it unusual because he also talked to himself when he was driving long hauls. Mr. Mooreland's experience with Weaver talking to himself occurred when the fishing boat they were in drifted over some rocks. Again, this did not seem unusual to Mr. Mooreland because as Weaver was talking to himself, Mr. Mooreland was talking to himself.

h. Special Evaluations Regarding PTSD

As mentioned above, the Huffmans hired four PTSD experts: Byron Wittlin, M.D., a psychiatrist from the VA Hospital in Los Angeles; Clyde Donahoe, Ph.D., a clinical psychologist at the same VA Hospital; John P. Wilson, Ph.D., a PTSD expert psychologist from Cleveland, Ohio; and Harry Kormos, M.D., a psychiatrist in private practice from Berkeley, California.

i. Dr. Wittlin

Psychiatrist Dr. Wittlin examined Weaver on August 27, 1984. He testified a great deal about Weaver's childhood and adolescence, in part based on reports prepared by other evaluators, and in part on what Weaver told him. He found that the conflicted relationship Weaver had with his mother, the disturbing interaction with his sister, the lack of friends, and the absence of a relationship with his father resulted in a very maladjusted individual. Weaver relayed to Dr. Wittlin that his mother slapped him to awaken him and punished him by pulling his hair and biting him, plus told to him that she wanted to line all men up (except for Weaver) and cut off their penises. Based on this information, Dr. Wittlin concluded Weaver's mother was brutal, repressive, and overprotective. Nonetheless, Weaver described her as "wonderful" and told Dr. Wittlin he and his mother communicated telepathically. Dr. Wittlin opined that the conflicted relationship with his mother and sadistic relationship with his sister (consistent with the sister's testimony) comprised the foundation for the kind of sexually assaultive crimes Weaver later committed against women (including his first wife, Patricia). Weaver refused to talk to Dr. Wittlin about his father.

Dr. Wittlin understood that Weaver was a "loner" who pursued recreational activities alone, started experiencing hallucinations at age 17, and was beset by grandiose psychotic thoughts, including that he could make explosives out of household products such as Tide laundry detergent and baking soda, that his heart condition was cured when he shook hands with the Army recruiting officer who told him he could enlist in the Army after having been rejected twice before, and that all women were intent on sexually stimulating him so they could frustrate him. Weaver's manner of communicating to Dr. Wittlin demonstrated convoluted, paradoxical type thinking. He diagnosed Weaver with schizophrenia, paranoid type, and also, after reviewing the psychological test results of Dr. Donahoe, PTSD. He believed Weaver's schizophrenia was exacerbated by combat stress experienced in Vietnam. Dr. Wittlin attributed Weaver's auditory hallucinations to the schizophrenia. On cross examination, he conceded that some schizophrenics are able to control themselves and he was unable to say whether Weaver was able to control his conduct during the Radford/Levoy crimes.

ii. Dr. Donahoe

Psychologist Clyde Donahoe, Ph.D., like Dr. Wittlin, evaluated Weaver in August 1984. Weaver tested positive for PTSD on the PTSD scale of the MMPI, scored high on the Combat Exposure Scale for combat action in Vietnam, scored positive for PTSD on the Symptom Check List, showed exposure to significantly high combat conditions on the Traumatic Violence Scale, and physically displayed a great deal of stress (increase in heart rate by 40 points) while watching slides of Vietnam combat scenes (as registered by the heart/respiration monitor to which Weaver was attached) on the psychophysiological assessment. Dr. Donahoe understood that Weaver participated in or witnessed the killing of women and children, mutilation of dead bodies, mutilation of live people, inadvertent air strikes, ambushes on U.S. or friendly troops, use of napalm, torture and killing of prisoners, mercy killing, watching a buddy die, leaving a civilian to die, taking human body parts as trophies, and bagging dead bodies. Weaver's symptoms included re-experiencing trauma, nightmares, memory of trauma, panic attacks, inability to make friends, loss of interest in usual activities, emotional numbness, trouble with trust, jumpiness, difficulty falling asleep, waking up in the middle of the night, trouble concentrating, memory problems, and experiencing his heart racing. While providing his answers, there were occasions when Weaver cried. Dr. Donahoe testified this tearfulness was typical of combat veterans who suffered from PTSD.

On cross examination Dr. Donahoe explained that the tests he administered were given to individuals who were seeking psychological help - not for forensics purposes. He conceded that some of Weaver's PTSD symptoms could be explained by his present criminal incarceration. He also admitted that it was impossible for him to verify Weaver's self-report of Vietnam combat experience, but Weaver's service record and his involuntary reaction to combat stimuli did substantiate his combat role. In any event, he did not doubt that Weaver suffered from PTSD, despite his inability to verify Weaver's self-report of combat service.

iii. Dr. Wilson

Psychologist John Wilson, Ph.D. was a nationally known expert and researcher on PTSD among Vietnam combat veterans. He was well-published in journals, books, and revisions to the DSM III. In addition, he testified before Congress on the plight of Vietnam veterans. He was experienced in other areas of psychology as well, including psychosis, schizophrenia and forensic psychology, but in recent years was more focused on PTSD. He was not board certified in forensic psychology, a fact Mr. Shumaker brought out on cross examination. The back drop for Dr. Wilson's testimony was Weaver's performance on a test Dr. Wilson developed called the Vietnam Era Stress Inventory ("VESI"). The test was designed to assess psychosocial functioning of Vietnam combat veterans, primarily measuring war stress and PTSD. The test consisted of 700 questions. In Weaver's case, the test was administered by Mr. Huffman, while his responses were captured on an audio-video ("AV") tape. The tape was then mailed to Dr. Wilson in his home state of Ohio.

Dr. Wilson reviewed reports from other examiners as well as the VESI AV tape. He also spent three hours interviewing Weaver prior to his testimony. In sum, he spent a total of 40 to 50 hours arriving at his diagnosis. In his opinion arriving at an accurate diagnosis would take more than two hours. He disagreed with the conclusion of the experts who opined that Weaver's depression and suicidal thoughts stemmed from his incarceration. Rather, Dr. Wilson concluded Weaver had a long-standing history of mental disorder, whether paranoid schizophrenia, psychopathic personality disorder, adjustment disorder, or dysthymic personality characteristic. Long before Vietnam, Weaver was a very disturbed and vulnerable human being, predisposed to violent behavior in response to sexual and physical abuse from his mother, [34] and as manifested by his conduct as a youngster towards his sister. With respect to the physical discipline the mother inflicted (biting and beating with an electrical cord or leather strap), Dr. Wilson clarified on cross examination that whether there were many or only a few beatings is not as important as the victim's perception of the beatings. Weaver began acting out his sexual and aggressive feelings towards women as "a defense against the underlying psychosis." Although Dr. Wilson was not at first sure Weaver suffered from schizophrenia upon reviewing the many materials and AV tape, after interviewing Weaver face-to-face, he was certain Weaver suffered from paranoid schizophrenia, co-existing with PTSD and a mixed personality disorder. Dr. Wilson believed the schizophrenia developed when Weaver was a youngster. Mixed personality disorder referred to personality traits which were long standing and interfered with a person's adaptive functioning. Weaver's personality disorder was pronounced and masked his underlying psychosis. Dr. Wilson believed Weaver had been mentally ill with psychosis and the accompanying personality disorder most of his life.

During Weaver's taped sessions answering the VESI questions, Dr. Wilson felt he was being truthful. He also felt Weaver's hallucinations, reported during the face-to-face interview, were authentic. If they had been "fake, " they would have been reported within a constrained period of time for a particular purpose. That wasn't the case, as Weaver described to Dr. Wilson information conveyed to him by both the male and female voices which had nothing to do with the present crimes, including the female voice's discouragement of Weaver taking revenge on certain people Weaver felt were responsible for his present predicament (being on trial for the Radford/Levoy murders), and the male voice's encouragement for him to harm two women associated with his present incarceration. Moreover, when Weaver was talking about his hallucinations, his affect was very intense, he was spontaneous, and his speech was pressured. He told Dr. Wilson he didn't like people crawling around inside his head and reading his thoughts. Dr. Wilson suspected Weaver was having hallucinations during his interview, as he was getting agitated, volatile and red-faced. Plus, he exhibited inappropriate laughter while relaying the content of the voices' respective statements.

Regarding the PTSD diagnosis, Dr. Wilson testified on direct examination he did not doubt Weaver had been involved in combat situations. Even when Weaver was working in the lumber yard (his first assignment in Vietnam), there still were attacks on his base. After his stint in the lumber yard, when Weaver became a "combat engineer" working with demolition, he was in heavy combat. His job was to sweep for mines in connection with support, search, and destroy missions. On cross examination, Mr. Shumaker suggested that because there were 100 to 120 men in Weaver's company, he may never have seen combat. During this cross examination, Dr. Wilson conceded he couldn't say with certainty that Weaver was involved in actual combat any more than on some occasions.

There were three combat events that stood out. The first involved the decapitation death of a fellow soldier. This is the occasion the male voice first came to him, telling him to turn around, which he did, and proceeded to shoot several enemy soldiers who were advancing on him. When recounting this story to Dr. Wilson, Weaver was trembling and crying. The second event involved the result of Weaver's refusal to detonate explosives to blow up a village that was "clean" of enemy operatives. In light of this refusal, his sergeant detonated the explosives and many civilian villagers were killed: men, women, and children literally blown apart, body parts and blood all over. During this recitation, Weaver's voice was halting and accompanied by shaking and crying. The third and most gruesome event involved the questioning of a prisoner from a village in which Viet Cong operatives were suspected of hiding. An interrogator from the Army of the Republic of Vietnam began skinning the prisoner alive in Weaver's presence. The prisoner was screaming in ghastly pain. Once the interrogator obtained the information he wanted, he stopped. Weaver asked another member of the unit to shoot the prisoner to end his misery.

The fact that the Viet Cong practiced guerilla warfare made the entire combat experience for American servicemen, including Weaver, more stressful. Dr. Wilson opined that the stress of the war eliminated whatever remaining controls Weaver has over his impulses. When Weaver returned from Vietnam, he still was an individual with psychotic tendencies and a learned psychopathic antisocial personality disorder, but now he had no means to modulate his behavior. The re-experienced combat images made him feel vulnerable, which in turn led him to act out in an antisocial manner. He had difficulty controlling his anger and became distant from his children.

The VESI AV tape was shown to the jury, beginning in the early afternoon. Weaver stayed in the courtroom for the first and part of the second segments of the tape, but asked the guards to accompany him out of the courtroom because, as Judge Stone explained to the jurors, he appeared to have "become emotionally disturbed or distraught." Weaver waived his presence for the remainder of that day (February 13, 1985) and the morning of the following day until Mr. Shumaker began his cross examination of Dr. Wilson.

On cross examination Dr. Wilson confirmed that a person who suffers from PTSD or schizophrenia is not necessarily insane, and that sanity is determined with respect to a specific act. Although Dr. Wilson determined Weaver was insane in February 1985, when he conducted the interview, he did not actually know if Weaver suffered from schizophrenia in February 1981. With respect to the prosecution psychiatrist witnesses (Drs. Criswell, Cutting, Burdick and Matychowiak) as well as the mental health experts who testified at Weaver's trial for the Ventura crimes (psychiatrist Dr. Chappell and psychologist Dr. Donaldson), Dr. Wilson believed they all missed something, that is, PTSD. He also felt that the examinations conducted by these doctors were superficial. On re-direct examination, Dr. Wilson confirmed his conclusion that on February 5 and 6, 1981, Weaver could not conform his behavior to the requirements of law, "absolutely."

iv. Dr. Kormos

Psychiatrist Harry Kormos, M.D. had extensive experience treating combat veterans during his service as a Navy psychiatrist. He spent between 30 to 40 hours reviewing the materials (consisting of 12 inches of documents and two AV tapes), considering the matter, and writing a report. After writing his report, Dr. Kormos also interviewed Weaver for two hours the day before his testimony. Dr. Kormos had a much better understanding of the intensity of Weaver's confusion as well as the psychotic nature of his thinking after the interview. Focusing on his upbringing, Dr. Kormos identified three stressful aspects from his youth: his physical health; his relationship with his mother; and his relationship with his sister. Weaver's mother, in particular, created a contradictory relationship because she was both extremely important to Weaver and violently aggressive. During the face-to-face interview, Weaver made clear that the punishment she inflicted, including the "blistering" and biting, " was very painful, very severe, and recurring. Dr. Kormos felt that Weaver's relationships with women had always been bizarre, to a pathological degree, all stemming from the conflicted relationship with his mother.

Weaver also had internal conflicts from the fact that he was beat up at school and wasn't supposed to fight back because of his weak heart. He had to worry if he didn't get beat up, his mother would "blister" him for being truant, and if he did fight back, he would have been punished for that as well. This created in Weaver a sense of being oppressed, wanting to strike back, and thinking others wanted to do him harm.

The relationship with his sister also was troubling. Based on the horrible acts Weaver perpetrated on his sister, Dr. Kormos believed Weaver wanted to kill her when he cut off her finger back when they were five and six years old. Although Mr. Shumaker downplayed the seriousness of this finger chopping incident by suggesting it was merely an accident, Dr. Kormos took this act in the context of the other cruel things Weaver did to his sister, including going through the motions of hanging her. He maintained his opinion that Weaver wanted to kill her since the sibling rivalry and dislike was so unusually intense.

Based on his review of Weaver's military records, Dr. Kormos believed Weaver had combat experience while in Vietnam. This impression was confirmed by Weaver's emotional responses depicted on the AV tapes, which Dr. Kormos found authentic and genuine. Dr. Kormos also was impressed that Weaver tried more than once to enlist in the Army and would not accept the classification of unfit for military service. At the time of Weaver's enlistment, he had suicidal fantasies. These fantasies or thoughts, in turn, drew the attention of Weaver's friends when he gave away all his possessions, including his fishing equipment, before deployment. On cross examination, Mr. Shumaker posed questions to cast doubt on Dr. Kormos' conclusion that Weaver had been in active combat. This uncertainty led to considerable back-and-forth re-cross and re-direct examination about the meaning to be attributable to the fact that Weaver put Ms. Levoy in a "prisoner position" when he returned to the truck after delivering the fatal blows to Mr. Radford. Mrs. Huffman suggested this was part of a PTSD flashback to Vietnam, while Mr. Shumaker suggested this position just as easily have been learned stateside in basic training.

Dr. Kormos opined that Weaver demonstrated delusional thinking when he expressed the belief that the "hole in his heart" was healed when the Army recruitment colonel decided to pass him as fit for service. Weaver also was afflicted with grandiose delusional thinking, with claims he could make explosives out of household items, such as Tide, nuts, and bolts. Dr. Kormos found unusual that Weaver volunteered to mental health professional that he had been a demolition expert, enjoyed seeing things blow up, and then giggled about it. Most veterans were aware of social mores that one should not express deriving enjoyment in destruction or explosions. He felt Weaver's admission that he felt powerful as a combat engineer indicated to Dr. Kormos that issues of impulse control needed to be explored. Upon Weaver's return from combat he had developed a tremendous amount of unfocused anger on reflecting that the Vietnam conflict had been senseless and that his superior officers were corrupt.

Dr. Kormos' understanding of the circumstances of the crime was consistent with the prosecution theory of the case. Mr. Shumaker focused his cross examination on the concept of impulse control, eliciting that Weaver was able to control his behavior to initially make contact with the young couple and formulate a plan to "get rid" of the young man. Dr. Kormos responded that even a person like Weaver, with impulse dis-control, would be able to protect the object of his impulses (that is, his desire to rape the woman). He also noted that a person who had been sleep deprived (as Weaver was), or used drugs (as Weaver did), would have had an even lower ability to exercise impulse control. While Dr. Kormos agreed that Weaver did not rape every attractive woman he encountered, he did have very powerful urges and emotions, which varied in intensity from time to time. When he did commit a rape, he did so in isolated locations. The presence of witnesses strengthened Weaver's self-control.[35] Weaver's ability to exercise external self-control was manifested by his ability to drive his truck and make deliveries. It was the internal controls which troubled him. Dr. Kormos' opinion that Weaver lacked impulse control also was not negated by the fact that he was able to converse with Ms. Levoy when they were riding together. On redirect examination, he explained that Weaver's ability to control his impulses was constantly being stretched to the breaking point. When he did control his impulses, it required an inordinate amount of energy. Dr. Kormos also determined that Weaver's PTSD figured into his impulse control issues because in Vietnam the acts of killing, raping, and torturing were not only permitted, they were encouraged. Dr. Kormos opined that the male voice Weaver heard was a voice "impersonation of the whole Vietnam style of doing things, which [wa]s to disregard the rules of civilized conduct and do all those things that up to that point were forbidden." Dr. Kormos observed that a disproportionate number of veterans who experience psychiatric difficulties after Vietnam had problems before going to war.

Like Dr. Wilson, Dr. Kormos opined that many of the mental health professionals didn't go far enough in pursuing diagnostic studies and exploring PTSD. His own diagnosis was schizophrenia of the paranoid type along with PTSD of the chronic type. At times people afflicted with schizophrenia showed no symptoms (particularly in cases like Weaver's where he was in a controlled environment and was taking anti-psychotic medication). The fact that Weaver held a job as a long-haul trucker and gave testimony in court also did not detract from Dr. Kormos' diagnosis. He opined that at the time of the crimes, Weaver had been aware of the requirements of the law, but unable to conform to those requirements. On cross examination, he clarified, "I think that the urge [wa]s so strong and his capacity at times to restrain that urge and not act on it, that capacity [wa]s so low, that the end result [wa]s the sort of things we have heard about."

Mrs. Huffman next questioned Dr. Kormos about the contents of the reports of the four prosecution witnesses, Drs. Cutting, Matychowiak, Criswell, and Burdick, none of whom had testified yet. Dr. Kormos found similarities between his own conclusions and those of the prosecution experts. He felt, however, in many respects they didn't go far enough or consider the fact that Weaver was in a closed (incarcerated) environment under the influence of anti-psychotic medication.

i. Inmate Witnesses

The defense called two individuals who had been incarcerated with Weaver and observed unusual behavior. The first was Carl Hogan, who at the time of his testimony was an inmate in the California Prison System. He had been housed with Weaver at the Kern County Jail, Lerdo facility and had been disturbed by Weaver keeping him up all night talking to "wherever or whatever." Mr. Hogan asked prison authorities for Weaver to leave and the next day Weaver was reassigned. The second inmate was Richard Archuleta, who also encountered Weaver at the Kern County Jail. In the autumn of 1984, when he and Weaver were housed together in a 12-man cell, several times, Weaver talked to himself in the middle of the night, like he was having a conversation with someone. This happened four or five times. No complaints were made by Mr. Archuleta or the other men in the cell and Mr. Archuleta never said anything to Weaver about this behavior. He noted that sometimes Weaver cried in addition to carrying on a conversation.

j. Mr. Huffman's Presence and Participation During Sanity Proceedings

Even before the guilt phase ended, Mrs. Huffman was actively litigating the case. Although Mr. Huffman was present during testimony of Weaver (on Monday, December 10, 1984), Mrs. Huffman conducted the direct examination for 123 pages of the reporter's transcript over two days. Mr. Shumaker's cross examination consumed another 85 pages of transcript, followed by another 16 pages of re-direct examination before the defense rested. Mrs. Huffman then reopened the defense case to ask Weaver more questions on Monday, December 17, 1984. Later the same day, and through the next, Mrs. Huffman handled the summation. The jury went out for deliberations the same day, Tuesday, December 18, 1984, and returned the next with a verdict of guilty on all counts, plus findings that the special circumstance allegations were true. Judge Stone instructed the jurors to return on Monday, January 7, 1985 for the sanity proceedings and counsel to return on Wednesday, January 2, 1985.

On January 2, 1985, counsel for both parties returned to discuss matters of scheduling and pending legal issues. Explanations for the defense were given mainly by Mr. Huffman. He asked for a continuance from January 7 to 14 due to problems he was having with his voice. He argued that he needed to be present because he had prepared the psychiatric evidence over the last 18 months and couldn't expect Mrs. Huffman to take over. The requested continuance was granted. When the jurors returned on January 7, Judge Stone informed the jurors that a continuance to January 14 was necessary due to Mr. Huffman's lingering laryngitis.

Mr. Huffman's participation on that first day of sanity proceedings, January 14, 1985, was active. As noted above, Part III.A.1., supra, he delivered the opening argument. As to the first witness, Dr. Albert Raitt, although Mrs. Huffman conducted the direct examination, Mr. Huffman conducted the re-direct examination. He had no participation in the examination of Weaver's sister, Ms. Smith, either on January 14, 1985 or the next day. In fact, on the next day, January 15, 1985, Mr. Huffman was absent from the proceedings with what Mrs. Huffman described as a "worsening of his bronchial condition." As represented to the jurors by Judge Stone, supposedly, the Huffmans had planned to call Weaver to the stand that day, but, since Mr. Huffman had organized and prepared the questions to be asked, and he was absent, Weaver's testimony would be postponed until later in the proceedings, but not the next day because defense experts already were scheduled to testify. Mr. Huffman was back on January 16, with minimal participation. Mrs. Huffman conducted the direct examination of Dr. Gardner and Mr. Huffman conducted further direct examination and re-direct examination of Dr. Gardner. Similarly, Mrs. Huffman conducted the direct examination of Dr. Owre, and Mr. Huffman conducted further direct examination, re-direct examination, and further re-direct examination of Dr. Owre.[36] The treatment of Dr. Tolchin was similar, with Mrs. Huffman conducting the direct examination, and Mr. Huffman conducting further direction examination as well as re-direct examination.

The next day, Thursday, January 17, 1985, Mr. Huffman was not present, but Weaver told the court he wanted to proceed. On the record, Judge Stone mentioned that Mr. Huffman had been having problems with a cough and Mrs. Huffman indicated he would be checking into a hospital that afternoon or evening in Los Angeles. RT-19: 4980-81. Mrs. Huffman handled the defense for the examination of Dr. Chappell, Dr. Donaldson, and Mr. Rose. When the parties and jurors returned to court, on Tuesday, January 22, 1985, Judge noted for the record that Mr. Huffman was hospitalized in Los Angeles. Mrs. Huffman explained that the hospitalization was for a "vocal cord" problem. Proceedings before the jury were continued to Monday, February 4, 1985, with counsel directed to appear Friday, February 1, 1985 for discussion about Dr. Shonkwiler's testimony and qualifications. On that Friday, Mr. Huffman was not present, and Mrs. Huffman represented the likelihood of him being present on the following Monday, February 4, 1985, was "almost nil." Id.: 4986.

On that following Monday, however, Mr. Huffman was present at counsel table with Mrs. Huffman for the first day of Dr. Shonkwiler's testimony. While Mr. Huffman did not participate in the lengthy direct examination that day, on the following day, he interposed a couple of objections during Mr. Shumaker's cross examination. First he objected to the question asking Dr. Shonkwiler to testify about the practices of long-haul trucker drivers. When Mr. Shumaker was questioning Dr. Shonkwiler about the notation in his report mentioning diminished capacity rather than insanity, Dr. Shonkwiler responded that when he opined that Weaver was a paranoid schizophrenic, he was calling Weaver insane. Mr. Huffman's second objection was to Mr. Shumaker's question about legal insanity, arguing that Dr. Shonkwiler could not testify about a legal standard. Had the court sustained the objection, Dr. Shonkwiler would have lost his qualification to testify. Instead, the court overruled the objection. RT-20: 5191. Mr. Huffman objected again to the question about whether Weaver was acting under an irresistible impulse when he chopped off his sister's finger on the grounds that the subject was not material.[37] The objection was overruled. Id.: 5193. Later that afternoon, after Dr. Shonkwiler testified he believed that all paranoid schizophrenics were legally insane. To the question of whether all paranoid schizophrenics commit violent acts, Mr. Huffman's objection was sustained.

During a break in Dr. Shonkwiler's testimony, outside the presence of the jury, there was an argument in which Mr. Huffman was involved about a defense subpoena of Deputy District Attorney John Logan. Mr. Logan was the Deputy District Attorney involved in prosecuting Dr. Shonkwiler for violations which resulted in the impairment of his license to practice medicine; Mr. Shumaker argued the Huffmans subpoenaed Mr. Logan for the sole reason of keeping him out of the courtroom and therefore asked for an offer of proof as to Mr. Logan's proposed testimony. Mr. Huffman responded that because Mr. Logan was a Vietnam veteran diagnosed with PTSD, he had some expertise concerning how veterans are rehabilitated. Mr. Shumaker's challenge to a potential breach of confidentiality about how the Huffmans concluded Mr. Logan suffered from PTSD then led Mr. Huffman to argue that Mr. Shonkwiler felt uncomfortable with Mr. Logan in the courtroom. At first, Mrs. Huffman was able to elicit that Dr. Shonkwiler was concerned "with a threat of possible harm from Mr. Logan, " id.: 5205, because when Mr. Logan was a patient of Dr. Shonkwiler he (Mr. Logan) tried to take records from Dr. Shonkwiler's office. Dr. Shonkwiler further testified that two years previous, Mr. Logan had suffered an acute paranoid reaction of hoarding guns, typical of PTSD in Vietnam veterans. The trial court rejected the defense position that Mr. Logan was a threat or a potential witness and he was allowed back in the courtroom. Id.: 5207-08.

On February 5, 1985, Mr. Huffman also presented the defense argument for admission of the diagnostic evaluation regarding Weaver's parole for the Humboldt crime through the testimony of prison psychologist Bruce Sanders, Ph.D. Although Dr. Sanders was on the psychiatric council that made a recommendation about Weaver's post-release treatment, he had not performed the psychological evaluation which formed the basis for the report and otherwise had no independent recollection of Weaver. Mr. Huffman unsuccessfully argued that the recommendation of the psychiatric council was properly admissible because Dr. Sanders was part of that group, and further, that the report was a business record. Id. 5245-53.

On the same day (February 5, 1985), in the middle of Mrs. Huffman's direct examination of Dr. Dietiker, about his assessment of Weaver's Rorschach test results, and not long before the evening recess, Mr. Huffman requested a side bar conference to discuss scheduling of witnesses the over the next few days. Id.: 5282-84 Other than interrupting the proceedings, the content of Mr. Huffman's side bar was rational. Following the interruption, Mrs. Huffman continued her direct examination. Before the evening recess, Mr. Huffman again interrupted Mrs. Huffman's examination to ask for clarification about what Dr. Dietiker meant that Weaver had been "faking bad" on the Wolpe's Fear Factor and 16 Personality Survey. Dr. Dietiker clarified that his initial impression about Weaver's faking his symptoms was replaced by the opinion that he (Weaver) did have a diagnosable disorder, that is, paranoid schizophrenia. Id.: 5292-93.

The following day, February 6, 1985, began rather benignly, but as the day wore on, Mr. Huffman's composure seemed to dissipate. Rather than continuing with Dr. Dietiker's testimony first thing in the morning, Mrs. Huffman first called Weaver's friend Del Roy Barnett, summarized above, Part III.A.1. g, supra, and followed with the initial direct examination of Dr. Kathe Lundgren. Mrs. Huffman's last question before the lunch recess was whether Dr. Lundgren believed Weaver should have been in a mental hospital. Mr. Shumaker's objection for lack of foundation was sustained (for lack of relevance). Mr. Huffman then undertook further direct examination. He elicited that a man with the mental problems Weaver had should not have been integrated into society and that Weaver was dangerous. Id.: 5361-62.

After the lunch recess, Mrs. Huffman conducted a brief direct examination of Jesse Moreland (as recounted above, also in Part III.A.1. g., supra ). During that examination, there was mention of Mr. Moreland's Doberman Pinscher, which apparently attacked Weaver during a visit. To that reference, Mr. Huffman interjected: "Could you tell us sir, how often your Doberman Pinscher pinched you?" RT-21: 5381. When Mr. Moreland mentioned that the dog attacked Weaver, Mr. Huffman again interjected, "So he started pinching right on your arm; right?" Id. Except for the fact that these bizarre questions were captured on the reporter's transcript, there was no mention of Mr. Huffman's conduct by any of the trial participants, including Judge Stone. It's unknown whether the jurors heard him, but there was no indication that Judge Stone thought an admonition or statement of some kind was necessary because there is nothing to reflect such a statement on the record. Following the afternoon recess on the same day (February 6, 1985), during Dr. Dietiker's detailed description of Weaver's Rorschach card responses, Mr. Huffman made an urgent side bar request, largely addressed to Mrs. Huffman. Noting that some of the jurors were "falling asleep" and that Mr. Shumaker should be given his two hours of cross examination in the morning followed by the testimony of the VA doctors, he urged Mrs. Huffman, "Just sum the damn thing up, " and that he was "not even grasping what's going on." To make his point, he asked the bailiff if he was "getting it." Mrs. Huffman promised to sum up the day in 15 minutes. Id.: 5421-23. The evening recess was taken following this interruption, and in fact, the remainder of Mrs. Huffman's direct examination was conducted on the next morning, February 7, 1985. Mr. Huffman did not participate in the direct, re-direct, or further re-direct examination of Dr. Dietiker.

Following the lunch recess on February 7, 1985, Mr. Huffman did blurt out an inappropriate comment during the testimony of VA psychiatrist Dr. Wittlin. When Dr. Wittlin was explaining about distorted self-impressions versus delusions, using the example of the size clothes a person wore, Mr. Huffman interjected, "What size are you?" Id.: 5524. No one responded to this question and it is unknown if any of the trial participants or jurors heard him. Again there was no statement from the bench after this interjection.

Mr. Huffman was not present before the jury in any further sanity proceedings after February 7, 1985. He was present, however, for legal argument and discussion outside the jury's presence on February 8, 1985 concerning admissibility of Dr. Wilson's VESI AV tape. The difficulty the defense team had was allowing the tape to be admitted over the prosecutor's hearsay objection. Mr. Huffman's primary argument for allowing the AV tape was a matter of safety from potential violence perpetrated by Weaver. Mr. Huffman informed the court that when he interviewed Weaver on the AV tape, he "went easy" on his client, but if he were to put Weaver on the witness stand to answer the VESI questions, Mr. Huffman would "be very hard on him... to show the jury his anger and his fear and so on." Mr. Huffman warned that if the defense put Weaver on the stand the court had better have "a lot of bailiffs standing around." Mr. Shumaker's primary objection was that the AV tape was an excuse for Weaver not to testify, not to be under oath, and not to be subject to cross examination. At the end of this session, after the trial judge did in fact view some of the AV tape, he decided he would have to question Dr. Wilson himself. During this session, Weaver asked to be excused from the courtroom because he did not want to see himself on tape. Mr. Huffman agreed it would be a good idea for Weaver to waive his presence both during this argument and during trial proceedings because, in Mr. Huffman's words, Weaver would tend "to become volatile and violent."[38] After questioning Dr. Wilson on his first day of testimony and over Mr. Shumaker's objection, the court allowed the AV tape of the VESI as the basis for Dr. Wilson's opinions. Judge Stone did not attribute his ruling to the possibility that Weaver would become violent if directed to answer the VESI questions on the witness stand. Mr. Huffman's participation in this hearing was his last until the motion to set aside the death verdict pursuant to Penal Code § 190.4(c) on April 4, 1985. Dr. Wilson appeared for his testimony on February 13, 1985.

2. Prosecution Case

Mr. Shumaker explained that four local psychiatrists would confirm that Weaver was not insane at the time he committed the present crimes. He explained that two additional doctors he would have presented, Drs. Donaldson and Chappell, already testified. Like the local experts, the doctors who previously testified confirmed Weaver's sanity in 1981 in connection with the Ventura crimes. To further discredit the notion that Weaver was impaired at the time of present crimes Mr. Shumaker also told jurors he would call Dr. Cholet, a member of Dr. Lundgren's team who wasn't called by the defense, ...

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