The Gospels are grounded on memories of extraordinary events. We all know memory can be tricky; here’s a high-profile example, arising in the trial of Andrea Yates, convicted of drowning her five young children in the bathtub. At the trial, a respected psychiatrist (inadvertently) testified falsely on behalf of the prosecution. His error illustrates how even competent, well-meaning people can sometimes "remember" things that never happened. [Update: See below for additional details that came out in the January 8 Chronicle.]
False Testimony About a Law & Order Episode
The psychatrist in question was Dr. Park Dietz. He is a frequent testifying expert on whether accused criminal defendants are sane. He testified as a prosecution witness in the Andrea Yates trial.
At the trial, Dr. Dietz testified that in his opinion, when Ms. Yates drowned her children, she knew the difference between right and wrong. (Several other psychatrists who had examined Ms. Yates had concluded otherwise. From everything I’ve read, I’m definitely in the latter camp — Ms. Yates sounds like a loving wife and mother whose brain has somehow hideously betrayed her.)
Defense attorney George Parnham cross-examined Dr. Dietz. Parnham asked Dr. Dietz about his work as a consultant for the television series Law & Order. Dr. Dietz confirmed that he had served in that role.
That’s where things went off the rails. Parnham asked whether Law & Order dealt with postpartum depression or women’s mental health. Dr. Dietz responded with a statement that was later shown to be false:
As a matter of fact, there was a show of a woman with postpartum depression who drowned her children in the bathtub and was found insane and it was aired shortly before the crime occurred.
(Emphasis added.) According to Houston Chronicle columnist Rick Casey, "The defense attorney, George Parnham, appeared stunned by this answer and quickly changed the subject. Law & Order was his client’s favorite program."
The prosecution played up the Law & Order episode to the jury. It got a defense psychiatrist to admit that, had she known during her psychiatric examination that Ms. Yates watched such an episode of Law & Order, she would have asked her about it. And during closing arguments, the prosecution argued to the jury that Ms. Yates had patterned her actions on the episode in question — thus indicating that she knew the difference between right and wrong.
The jury rejected Ms. Yates’ insanity defense and found her guilty of capital murder.
But There Was No Such Law & Order Episode
Suzanne O’Malley, a reporter and author who had written scripts for Law & Order, thought that Dr. Dietz’s testimony didn’t sound right. She called the show’s producers and confirmed that there never was such an episode.
The prosecution eventually stipulated that Dr. Dietz had misspoken. It agreed that if re-called to the stand, Dr. Dietz he would testify that no such episode was ever produced. The defense moved for a mistrial on grounds of Dr. Dietz’s false testimony, but the trial judge refused to grant the motion.
[Update 1/8/05: Today’s Houston Chronicle reports that prosecutors may have confused Law & Order with L.A. Law, a lawyer show from the 1980s. According to the Chronicle, a schoolteacher emailed prosecutors about a rerun of an L.A. Law episode had recently aired, showing a woman who had drowned her children but successfully pleaded not guilty by reason of insanity. Prosecutors asked Dr. Dietz about a Law & Order episode with such a plot; in an interview on Good Morning America, he said "I put that in my notes and must have remembered those notes."]
Ms. Yates was sentenced to life in prison; the prosecution had sought the death penalty.
Yesterday, an appeals court ruled that the trial judge should have granted the motion for mistrial, because it was reasonably likely that Dr. Dietz’s false testimony might have influenced the jury. The court held that:
The state used Dr. Dietz’s false testimony to suggest to the jury that appellant patterned her actions after that ‘Law & Order’ episode. * * *
We conclude that there is a reasonable likelihood that Dr. Dietz’s false testimony could have affected the judgment of the jury.
Even So, the Witness Wasn’t Lying
By all accounts, Dr. Dietz wasn’t lying when he testified falsely about the Law & Order episode. In fact, he seems to have been trying very hard to get his testimony right. Yet he still "remembered" something that never happened.
The Houston Chronicle reports that "Dietz has been praised by opposing counsel for his professionalism. ‘He is an unbelievable expert, somebody I have a great deal of respect for despite the fact that he disagreed with our experts,’ [said] Gerald Boyle, attorney for serial killer Jeffrey Dahmer …."
The Chronicle also noted Dietz’s excellent reputation among his peers:
One of Puryear’s Baylor colleagues, psychiatry professor Victor Scarano, said Dietz’s gaffe is hard to understand given his reputation for thoroughness.
"He is usually very careful about what he does," Scarano said. "When we do our work, we usually are very scrupulous that what we have are the facts. We understand that we are going to be vulnerable to cross-examination, so we have to have our ducks in a row. How this happened, I don’t know. Unfortunately, it will hurt him."
* * *
"Dietz is to my knowledge just as honest and ethical as he can be," said William Reid, a Texas forensic psychiatrist who, like Dietz, has served as president of the American Academy of Psychiatry and the Law. "He has felt extremely badly about his error. I’ve talked to him personally about it and heard him speak to others." * * *
… Prosecutors who have worked with [Dietz] said he gets to know the facts of a case inside out and prepares his testimony carefully. Dietz himself once told an interviewer that when he enters the witness box, "I’m in a state of extreme focus."
According to the Chronicle’s Rick Casey, Suzanne O’Malley thought she understood how Dr. Dietz could make such a mistake:
"When one has consulted on three hundred episodes of Law & Order as Dietz has, it’s very easy to collapse one episode into another," she said. "However, I believe that Dietz showed a bit of hubris in volunteering this information, which was unnecessary."
He was, it appears, trying to put down a defense attorney who was annoying him. But, O’Malley argues, a powerfully effective expert witness like Dietz has a special responsibility to get his facts right.
In his competitive eagerness to win, his brain apparently made up a Law & Order episode. But had O’Malley not been in the courtroom and curious enough to call producer Wolf, the fantasy TV episode — as unreal as the voice of Satan that was talking to Yates — would have gone uncorrected.
(Emphasis added.)
The Implication: Even the Best of Memories Can Be Tricky
This tragic story provides an example of what experienced litigators know all too well (as elaborated in Why We Shouldn’t Accept Scripture as Completely Reliable): The fact that someone honestly "remembers" that X happened, doesn’t mean that X actually happened.
(Sources: This New York Times story; this column by Houston Chronicle columnist Rick Casey; this story by Mike Tolson in the Chronicle; and this one by Andrew Tilghman in the Chronicle.)
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