Criminal
Aug. 3, 2002
Memories of Murder
SAN FRANCISCO - Star prosecution witness Patricia Hearst should have her head examined, defense lawyers in the Symbionese Liberation Army murder case contend.
At a hearing today in Sacramento County Superior Court, attorneys J. Tony Serra, Stuart Hanlon and others are set to ask Judge Thomas M. Cecil to compel Hearst to undergo a psychiatric examination before she is allowed to testify against her former SLA associates. People v. Montague, 02F00525.
They base the move on testimony about Hearst's sanity by mental health experts during her 1975 bank robbery trial.
It's an opening defense gambit in the murder prosecution of former SLA members Sara Jane Olson, William Harris, Emily Montague and Michael Bortin for the 1975 murder of Myrna Lee Opsahl during a Crocker Bank robbery in the Sacramento suburb of Carmichael.
The prosecution seeks justice for the 27-year-old crime, allegedly committed by self-proclaimed urban guerrillas whose motto was "Death to the fascist insect that preys upon the life of the people."
Prosecutors Robert H. Gold and Mark Curry of the Sacramento County district attorney's office denounce the psych test idea in a pleading as "the first of what is expected to be many motions designed to discredit, dissuade and ultimately harass witness" Hearst.
The defendants face possible life sentences. Hearst, who was kidnapped by the SLA in 1974, shocked the nation when she announced she had joined her captors.
President Clinton pardoned Hearst for her role in a SLA bank robbery in San Francisco. Prosecutors granted her transactional immunity in exchange for her testimony in the current case, meaning she cannot be prosecuted for any event or transaction she describes in court. She has said she was behind the wheel of a getaway car in the Carmichael heist.
The murder case, still in its early stages, is not expected to reach trial for many months. The defendants were arrested in January. All are free on bail except for Olson, who remains imprisoned following her guilty plea in the attempted bombing of two Los Angeles police cars.
A fifth alleged perpetrator, James Kilgore, is at large.
The defense motion makes clear that Hearst's testimony will be crucial.
"Ms. Hearst's testimony is the heart of the government's case," the motion asserts. "There is no other evidence, either circumstantial or direct, that places any of the defendants either in the bank or outside the bank at the time of the robbery/homicide on April 21, 1975."
Hearst said in January she will testify against the defendants. "I'm not looking forward to a trial," she said in a television interview. "It's nothing to look forward to. This is a very, very unhappy situation all the way around. And, you know, it's the result of a hideous crime."
Prosecutors Gold and Curry strongly oppose the psychiatric test.
"While a trial court arguably retains the power to order a witness to submit to a psychiatric examination as a condition of admitting his or her testimony," they wrote in a pleading, "Penal Code Section 1112 prohibits them in specified circumstances and repeated California Supreme Court case authority greatly disfavors their use."
They're joined by Hearst's lawyer, George C. Martinez of Tiburon, who called the idea "ridiculous."
Hanlon, representing defendant Emily Montague, said this week there's solid logic behind the bid for testing.
A federal jury convicted Hearst in 1976 for the armed robbery of a Hibernia Bank branch in San Francisco. She served nearly two years before President Carter commuted her seven-year sentence.
Hearst at one point during her kidnapping said she voluntarily joined the SLA. Later she claimed she'd been brainwashed into cooperating with her captors.
Hearst lawyer F. Lee Bailey used a duress defense to argue that Hearst was not responsible for the robbery. Expert psychiatrists and psychologists testified on the subject for both prosecution and defense.
Her conviction, including the use in court of the mental health experts, was upheld by the 9th U.S. Circuit Court of Appeals. U.S. v. Hearst, 563 F.2d 1331 (1977).
"We indulge in the assumption that every defendant is sane, and it is not incumbent upon the prosecution to prove sanity until the defense presents evidence to the contrary," the circuit panel observed in a footnote.
The current defense motion states:
"All the doctors examined her for lengthy periods of time prior to her testimony and all the defense doctors found that she suffered from a mental illness due to her kidnapping which affected her ability to remember, to perceive and to understand the events that took place after her kidnapping ... ."
The defense experts at Hearst's trial included Robert Jay Lifton, a prominent professor of psychiatry then at Yale who found Hearst "deeply confused" and a victim of post-traumatic stress disorder and of traumatic neurosis, the motion states.
Lifton "found that even after her kidnapping her perceptions were 'cloudy and off-kilter' and that she appeared to be in an 'enormously confused state,'" according to the motion.
Now that Hearst intends to be a prosecution witness, the defense lawyers assert, it is fair to question her mental state.
"Surely, Ms. Hearst's present memories regarding these events continue to be distorted and/or fabricated by the same mental illness," the motion argues.
The motion also seeks records of Hearst's previous psychiatric examinations.
"Her own doctors said she suffered mental illness," Hanlon said this week. "We don't think memory gets better over time."
The defense move to seek testing was endorsed by San Francisco District Attorney Terence Hallinan, a former criminal defense lawyer who briefly represented Hearst in 1976 before Bailey took over the case.
"It sounds to me like it's worth a shot," Hallinan said Wednesday. "It's a reasonable request in light of the mental problems she said she had."
James L. Browning Jr., the U.S. attorney in San Francisco who led the prosecution team at Hearst's trial, said Tuesday he doubts the defense motion will succeed.
"I'd be very surprised if any judge made such an order," he said by phone from his home in Arizona, where he retired after serving on the San Mateo County Superior Court.
"The only reason she was examined in my case was so the experts could say whether she was brainwashed. My two doctors said there's no actual instance known in the [psychiatric] literature of someone committing an overtly violent act as a result of a Manchurian Candidate-type brainwashing.
"She wasn't brainwashed. She was a rebel in search of a cause. She knew what she was doing."
Browning said his experts - psychiatrists Joel Fort and Harry Kozol - neutralized those of the defense. "We got a wash on the psychiatric aspect of the case and we won it on the facts," he said.
Fort, an East Bay physician, public health expert and criminologist, continues to believe Hearst is sane.
Fort said he interviewed Hearst for 12 hours before her trial, studied her diaries and talked to other witnesses, including her boyfriend at the time of the kidnapping, Steven Weed.
"She was kidnapped, terrorized and deeply stressed," Fort said Wednesday. "But that dissipated within a few days of the kidnapping. She underwent a conversion experience, like a religious conversion.
"I concluded that she operated independently with the SLA, and that's what the jury found - that she was responsible for her acts. She was not mentally ill, and I don't see any reason to believe her memory is distorted."
Martinez, Hearst's current attorney, accused Hanlon and the other defense lawyers of taking out of context the comments of experts at Hearst's trial.
"Trustworthiness of memory was not the issue," he said this week. "The issue was coercive persuasion leading to duress. Still, she's a witness now and the defense is entitled to take extreme positions.
"They're saying their clients so abused my client that her memory is faulty. That's not an argument I'd be comfortable with. There's no merit to it."
Even so, Martinez said, Hearst won't fight if the judge rules she must undergo psychiatric testing.
"She will of course obey any order of the court," he said.
John Roemer
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