The Insane System

MARIN COUNTY COURTHOUSE -- Last summer, death-row inmate William Kirkpatrick sent a hand-written request from his San Quentin prison cell to the California Supreme Court demanding that his legal appeals be dropped and that he be executed. ”I’m fed up with your shit,“ he wrote. ”This 20-year joke has gone on long enough.“ On Monday, at a hearing here to determine whether Kirkpatrick is mentally competent to make such a decision, the inmate appeared to have something else on his mind.

Dressed in loose-fitting, prison-issue white pants and shirt, his eyes concealed behind dark glasses, Kirkpatrick was ushered into the courtroom through a security door by four prison guards. He immediately turned to the judge and insisted on representing himself in a new trial. Judge John S. Graham ordered him to sit down. When the shackled inmate refused, the guards leaned in and tried to press him into the seat. Kirkpatrick began to jerk violently, slamming into a wooden railing. ”Let go of me, motherfucker,“ he snarled at one of the guards, lurching out of his grasp. When it became clear that Kirkpatrick was not going to calm down, the judge ordered him returned to San Quentin. On his way out, Kirkpatrick threw himself against the walls. ”Criminal charges against you a long time ago, Graham!“ he shouted as the guards carted him off.

Kirkpatrick, who is 41, was convicted of killing two workers at a Burbank Taco Bell in 1983. L. Wayne Hunter, 27, and James Falconio, 16, were each shot once in the head with a .22-caliber bullet, and $625 was missing from the safe and cash register. An accomplice, Eddie Salazar, was convicted of first-degree murder and received a sentence of 25 years to life. Kirkpatrick‘s criminal record before that consisted of misdemeanor convictions for drunken driving and receiving stolen property.

He is just one of several death-row inmates who have recently asked to drop their appeals. (Bob Massie, who is slated for execution later this month, was granted a similar request.) But Kirkpatrick’s case is the only one in California in recent years where the inmate‘s mental state is in question. Kirkpatrick’s lawyers, led by William H. Forman, a deputy federal public defender, argue that their client is paranoid and delusional, and in no way able to make rational decisions about his legal status. The prosecution, represented by David P. Druliner, chief assistant state attorney general for the criminal division, maintains that Kirkpatrick is an intelligent man who uses public outbursts and profanity as a way to feel some sense of control. It is against the law to execute the insane, but if Kirkpatrick is found mentally fit to drop his appeals, very little stands between him and execution. If Graham finds him not competent, it would likely be years before all of the legal challenges to his conviction and sentencing could be resolved.

Kirkpatrick himself takes offense at any suggestion that he might be suffering from mental illness, and there is no record of psychiatric intervention during his childhood in Brooklyn or after he moved to the L.A. area and became homeless. Kirkpatrick started drinking heavily and was using a variety of drugs, including marijuana, PCP and heroin. Court records show that Kirkpatrick began exhibiting behavior that raised serious questions about his mental state. He has both vehemently sworn his innocence and, during a prior attempt to get himself executed in 1996, just as strongly proclaimed himself ”guilty as shit.“

This time around he has alternately said he wants to be executed and that he intends to get a retrial, represented either by himself or by an unnamed famous black attorney who will help prove his innocence of the crimes he was convicted of 17 years ago. Kirkpatrick, who is half Mexican and half African-American, has repeatedly declared himself the victim of a racist plot whose participants include not only prison guards and prosecutors, but judges and his own attorneys as well. In letters of complaint sent to various government bodies, Kirkpatrick has called Judge Graham a ”fucking ninny,“ and Forman a ”homosexual racist“ whose ”bigotry is revealed by his liberal use of the word nigger.“ Kirkpatrick has consistently refused to speak to defense attorney Forman, who has represented him for seven years, or to accept any mail from him. But in his request to drop his appeals, Kirkpatrick complained that Forman‘s office ”refuses to communicate with this nigger.“

The most extreme instance of Kirkpatrick’s ire against his defense occurred in 1990, during a meeting at San Quentin with state Public Defender George Mertens, who had been representing him for about a year. The relationship, according to Mertens, had been a difficult one. Kirkpatrick would obsess over lists of complaints he wanted his lawyer to address, then abruptly change his mind. He complained that the guards stole his legal materials, his soap and his toothbrush, charges that appeared to Mertens to be untrue. He asked Mertens to give him an old typewriter, but when the prison refused to allow it, Kirkpatrick concluded that it was part of a conspiracy to deny him his rights. When Kirkpatrick saw a document listing Mertens‘ title -- deputy state public defender -- he became convinced that the counselor was actually a deputy sheriff and secretly working against him. Kirkpatrick got most angry when Mertens tried to explain to him legal realities that complicated his case. In these instances, Kirkpatrick would face the wall and speak softly to ”no one in particular,“ rambling on in a ”bizarre“ manner about his pet issues. Mertens found his client ”incapable of understanding the legal concepts“ surrounding his case. ”His difficulties did not seem to result from losing a train of thought. It was more like he lost his sense of reality.“

The last time Mertens saw Kirkpatrick was during that San Quentin meeting 11 years ago. Kirkpatrick, clearly agitated by his conversation with Mertens, got up from the table where the two were seated and began stabbing his lawyer in the right ear with a sharpened toothbrush. Mertens suffered a punctured eardrum and did not practice law for a year after the attack. In a written account of his relationship with Kirkpatrick that he prepared for the court, Mertens said that of the hundreds of clients he has represented who have been convicted of serious crimes, Kirkpatrick was ”the most seriously impaired.“

Kirkpatrick has refused to be examined by prison psychiatrists and by psychiatrists hired by his lawyers, and his mental state was not considered during his original trial and sentencing. His first and only psychiatric exam was performed last November at San Quentin, over the course of two and a half hours, by Diane McEwen, a Tiburon psychiatrist appointed by Judge Graham. The judge is clearly an admirer of McEwen’s work. During the course of her testimony he mentioned that he had recommended her for appointment to cases numerous times (”more than 20, less than 100“). He also said he had called her at least twice to discuss logistics on her role in the Kirkpatrick matter and that he had personally delivered a box of evidence to her at her home. McEwen has worked as an expert psychiatric witness for the Marin County Superior Court for more than 20 years, most notably on a high-profile pre-execution sanity hearing in 1998 for death-row inmate Horace Kelly. Of seven psychiatrists who testified in that proceeding, including three who worked at San Quentin and another one hired by the court, McEwen alone found Kelly sane enough to be executed. He remains on death row, pending more appeals.

In her testimony this week on the Kirkpatrick case, McEwen reached a similar conclusion. In a written report that Graham termed ”excellent,“ McEwen stated that ”It is my medical opinion that he shows no evidence of mental impairment which would diminish his capacity to make a knowing, intelligent and voluntary decision pertaining to his legal choices.“ During her courtroom testimony, she elaborated. ”We‘re trying to find out whether or not he has a specific mental illness that would explain some of these objectionable characteristics,“ she said. ”I have a far better explanation. He’s living where he‘s living with what he’s got, and he‘s trying to drive everybody else crazy.“

Other psychiatrists aren’t so sure. Roderick Pettis, who also often works as a court-appointed psychiatrist, was asked by Kirkpatrick‘s attorneys to review his court and institutional records and found that he ”manifests symptoms consistent with a mental disorder or psychosis known as delusional disorder, persecutory type.“ Another psychiatrist, Robert Weinstock, who heads the psychiatric unit at West Los Angeles VA Hospital and is director of UCLA’s forensic-psychiatry program, also testified on behalf of the defense. He said he found McEwen‘s methodology and the basis for her conclusions ”unclear“ and that he would have conducted a much more thorough interview, drawing Kirkpatrick’s attention to contradictions in his own statements and asking him, for example, why he attacked his own attorney. Weinstock cautioned that he could draw no conclusions because he had not been able to examine Kirkpatrick directly, but said that there is ample evidence of the likelihood that Pettis‘ diagnosis is correct. Weinstock also said that simply because a person is intelligent and appears lucid does not rule out mental illness. ”There is a good chance this man is psychotic,“ he said.

The decision on Kirkpatrick’s mental fitness ultimately lies with Judge Graham. A former federal prosecutor who made his reputation going after drug lords and Hell‘s Angels, Graham has sat on the bench since 1998. His courtroom demeanor is low-key. Indeed he speaks so softly that his words often get lost beneath the drone of the air conditioner and the squeaking of his swiveling chair. The judge must base his finding on two key factors: whether Kirkpatrick is ”suffering from a mental disease, disorder or defect which may substantially affect his capacity“ and whether he has made a knowing, intelligent and voluntary waiver of his right to proceed. ”I don’t think I can complete the job without further interview of Mr. Kirkpatrick,“ Graham said in court, adding that the task is made more difficult by the knowledge that Kirkpatrick intends to represent himself in all future proceedings. ”Competence to represent himself requires me to be assured that he has a general understanding of the muck he‘s getting into and that he’s making a knowing and voluntary choice,“ Graham said. ”I don‘t think I have enough of a record to do that.“ The judge is expected to render a decision in the next several weeks.


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