Body Parts (37 page)

The defense began its case with Andy Lowery, who was called to elaborate on Wayne’s state of mind during the period the crimes were occurring.

Lowery testified that Wayne had visited him monthly for about two years until just before he turned himself in. Mostly, he said, they discussed whether he had a conscience.

Mazurek objected, prompting Smith to question the relevance of Wayne’s statements to Lowery.

“If he is conflicted over things that are going on at that time and is depressed and is looking for spiritual guidance, that’s certainly an indicator from which one can argue an inference that he was not intentionally killing people,” Canty said.

“Perhaps another inference is that he was conflicted over the fact that he was intentionally killing people,” Smith replied.

Canty argued that the defense had a right to counter the prosecution’s allegation that Wayne was evasive during his statements to the detectives, a time when “he was in fact sincerely involved in trying to resolve a moral conflict in his life.”

So the testimony—brief as it was—proceeded.

Canty then called Pastor James C. Ray, a Pentecostal pastor who started visiting Wayne in jail after ministering to the prisoner in the cell next door. The pastor said he talked to Wayne through a slot in the door to his single cell, singing hymns and Southern gospel songs and discussing the spiritual aspects of conviction, remorse, and forgiveness.

“He asked if I thought God could forgive him,” Ray testified. “And the only thing that I can do is tell him what the Scripture . . . says: all men who are in sin shall be forgiven.”

On cross-examination, Mazurek asked, “It’s really not all that unusual for people who don’t care about spiritual things when they’re not incarcerated to—when they become incarcerated—want to talk about spiritual things?”

“Sometimes,” Ray replied.

On redirect, Canty asked, “Did Mr. Ford impress you as someone who just suddenly wanted to talk about spiritual things?”

“No, I believe it was there all along. But he was wanting further counsel, spiritually, concerning things that were already going on in his heart and mind, I believe.”

Just before Canty was ready to call Wayne’s friend Scott Hayes, Mazurek’s objection to a photo of Wayne and Max in the pumpkin patch triggered a debate about the relevancy of testimony by Wayne’s family and friends, whom Canty had intended to call to illustrate how events during his upbringing contributed to his current behavior.

“I don’t think I need to litigate his entire childhood,” Mazurek said, arguing that matters about Wayne’s character, his family dynamics, and his social history were not relevant in the guilt phase of the trial, but more appropriate for the penalty phase, if they should get to that point.

Canty countered that much of this testimony was necessary to back up the opinions of their psychological expert, Reid Meloy, who believed that Wayne’s various mental illnesses were attributable, at least in part, to interactions with his parents.

Smith, however, noted that such matters, even if they had contributed to Meloy’s opinions, were not necessarily independently admissible.

Smith said he would allow Scott Hayes to testify since he was already on his way to the courtroom, but he would not allow the pumpkin patch photograph.

When the judge indicated other witnesses from Wayne’s family and friends weren’t going to be relevant, either, Canty asked for more time to research his argument before the judge made his final ruling.

The debate continued in the coming weeks, usually out of the jury’s presence.

Canty said the defense had planned to call Gene Ford to testify about his ex-wife’s behavior—including her sexual promiscuity, depression, mood swings, and suicide attempts—that may have influenced Wayne socially, but also could indicate that she passed on to him a genetic susceptibility for mental illness.

Canty said Gene was also going to talk about how Wayne’s personality changed first at twelve, when his mother “said she no longer wanted him in the house and sent him to live with his father,” and then later, after his head injury, when he became even more withdrawn and depressed.

“The only way for the jury to believe that these things were true and to understand that these facts do exist is for us to prove them,” Canty said. “I think that we are not only entitled to prove them, that we have an obligation to prove them, in order to make the expert’s opinion viable . . . with the jury.”

Mazurek disagreed, saying the murder trial would turn into a family law dispute over Wayne’s childhood history, and would take months to litigate. “We’ve got Dad saying Mom’s a horrible parent. We’ve got Mom saying Dad’s a horrible parent. We have disputes about things that happened twenty and thirty years ago.”

“All of this stuff is not relevant to the . . . issue of whether he murdered these girls, and his intent at the time.”

Judge Smith agreed, saying they didn’t need “a credibility contest” between relatives as long as the defense expert had considered those discrepancies before rendering his opinion.

At Smith’s request, Canty listed off the witnesses he’d intended to call—Wayne’s aunts Ginger and Vickie and uncle Jimmy; Wayne’s first stepfather, Steve Shurtluff; and Gene’s friend Keith Hale—and detailed the gist of their anticipated testimony.

Canty said the defense had also planned to present depositions of Wayne’s maternal grandmother, a videotape of Forbush’s interview with Wayne’s mother and a transcript of excerpts, along with some other witness interviews.

After Mazurek reiterated his objections, Smith ruled that any testimony by relatives or other witnesses about Wayne’s emotional and mental history should be limited to the period just before he turned himself in.

“Whether or not he has remorse and understands the need for punishment afterward is a penalty phase issue, not a guilt phase issue, in the determination of what offense was actually committed,” Smith said.

This ruling dramatically altered the scope and duration of the case the defense had intended to present.

“A lot of the time we were planning to spend has now been removed from the case,” Canty told the judge.

So, in the end, Rodney was the only family member the defense was able to call, and briefly at that.

On Tuesday, April 25, one of the male jurors was excused after being hospitalized for a medical problem and his doctor suggested that he shouldn’t continue with the trial. Smith seated one of the alternate jurors—a woman—in his place.

Next up, Canty called a neurologist and a radiologist, who had conducted tests on Wayne’s brain and found some abnormalities.

Dr. Arthur Grant, the neurologist, had performed a twenty-four-hour video EEG study on Wayne at a hospital in the city of Orange in October 2002. The test was to measure his brain waves and videotape any seizures or spells that might occur, but none did.

In layman’s terms, Grant found that Wayne’s brain was like an eight-cylinder car running on six or seven cylinders, i.e., not functioning at its normal speed. One test result showed activity that was consistent with chronic alcoholics, even if they’d been sober for a while. Other possible causes could’ve been Wayne’s head injury, but the doctor couldn’t say for sure. He determined that these abnormalities had been present for quite some time, but he couldn’t say how long.

On cross-examination, Mazurek asked if people with these mild abnormalities could still function in daily life.

“Most likely,” Grant replied.

“There aren’t any definitive studies in your field that say, ‘People with these findings act this way’?” Mazurek asked.

“No, there are not.”

“There’s nothing that says people with these findings go out and murder people?” Mazurek asked.

“No, of course not.”

Dr. Michael Green, the radiologist, testified that he conducted an MRI to look at the structure of Wayne’s brain in September 2000.

The MRI, he said, showed mild to moderate atrophy in the cerebellum, the part of the brain that is used for sensory perception and coordination of muscles and movement. He said the atrophy could have been caused by alcoholism, certain medications, or congenital defects.

Once again, Mazurek cut to the chase on cross: “This type of cerebellar activity doesn’t cause people to go out and commit crimes, right?”

“Not that I’m aware of.”

“Doesn’t cause people to go out and murder other people?”

“Not that I’m aware of.”

On May 4, Canty decided to present to the jury the brief transcript excerpt from Forbush’s interview with Brigitte that the judge had decided to allow, but not the videotape. Instead, Canty played the video taken while Wayne was being booked to illustrate his mental condition at the time.

After keeping the jury all morning without presenting any witnesses, Canty was concerned the panel would think the defense had done something wrong.

“I hope the court won’t make it look like our fault,” he said.

The judge said he would repeat his earlier explanation, that they had expected to have some testimony, but additional legal issues arose, and after discussing them, “much or some of that testimony was not available.”

“You might even include that the defense had their witnesses here,” Canty said.

“If you want me to,” Smith said.

After the jury had been excused for the day, the judge revisited Mazurek’s request to conduct a psychological exam of Wayne to use as rebuttal testimony to defense expert Reid Meloy’s. Canty objected, arguing that psychologist Paul Berg had already done an interview with Wayne days after he surrendered.

Mazurek said he was planning to have Dr. Park Dietz do the exam, which prompted an unusual eruption from Wayne at the defense table.

“The guy is a liar, though. I won’t talk to him,” Wayne said.

Smith told Wayne that was something he could discuss with his attorney.

On the morning of Monday, May 8, Judge Smith announced that he would grant Mazurek’s request for Dietz to do the exam, with Wayne’s attorneys and Meloy present as observers. The exam would take place on May 15 at the courthouse, after Meloy had finished testifying.

Canty launched another objection to using Dietz, which explained the basis for Wayne’s outburst.

“The ground for that involves our impression that Dr. Dietz has, in fact, participated in testifying to falsehoods in other cases, including a famous case in Texas, which resulted in a reversal of a conviction there, the [Andrea] Yates case, as a result of the falsehoods to which he testified and which were relied upon by the prosecution in that case,” he said.

Smith overruled Canty’s objection, saying those issues could be raised during cross-examination.

Next, the attorneys and judge debated what Meloy could and could not say in his presentation to the jury.

The prosecution’s main concern was that Meloy shouldn’t be allowed to give an opinion about whether Wayne had the capacity, intent, or premeditation to kill these women, and the judge agreed. Smith ruled that Meloy could discuss his research and different types of killers, but should leave it to the jury to decide which type Wayne was.