Document Sample

                     CASE NO.: 06004892CF10A
                         JUDGE: LYNCH IV





                        STATEMENT OF
              DAVID A. MARTINDALE, PH.D., ABPP

             Taken on behalf of the Defendant

             DATE TAKEN:      September 3, 2010

             TIME:            12:57 p.m. - 2:39 p.m.

             PLACE:           Criminal Justice Center
                              Public Defender's Office
                              14250 49th Street North
                              Clearwater, Florida 33762

        Examination of the witness taken before:

                     Crystal Storms
              Florida Professional Reporter
Morgan J. Morey & Associates


Chief Assistant Public Defender
  Office of Howard Finkelstein
  201 SE 6 Street, Suite 3872
 Fort Lauderdale, Florida 33301

             - - -
Morgan J. Morey & Associates
            DAVID A. MARTINDALE, PH.D., ABPP            3

                          I N D E X

                                                   PAGE NO.

DIRECT EXAMINATION BY MR. WILLS                         4


REDIRECT EXAMINATION BY MR. WILLS                      46

CERTIFICATE OF OATH                                    60

CERTIFICATE OF REPORTER                                61

                      E X H I B I T S

PLAINTIFF                                FOR IDENTIFICATION

                      ***** NONE *****

DEFENDANT                                FOR IDENTIFICATION

                      ***** NONE *****

                           - - -
Morgan J. Morey & Associates
                    DAVID A. MARTINDALE, PH.D., ABPP            4

1    Whereupon,

2                 DAVID A. MARTINDALE, PH.D., ABPP,

3    acknowledged having been duly sworn to tell the truth

4    and testified upon his oath as follows:

5                 THE WITNESS:   I do.

6                          DIRECT EXAMINATION

7    BY MR. WILLS:

8          Q      This is a witness statement of

9    Dr. David A. Martindale Ph.D., ABPP, that is taken here

10   in Clearwater, Florida on the 3rd day of September,

11   2010.     My name is Robert Wills, and I'm a chief

12   assistant public defender.      With me is

13   Frank de la Torre who is also a chief assistant public

14   defender.    Both of us are from the 17th Judicial

15   Circuit which is Broward County, Florida.     We're here

16   today to question Dr. Martindale in connection with

17   some issues that may be involved in this particular

18   case.     So let's just get started.

19                Sir, if you could just state your name for

20   us.

21         A      David, middle initial A., Martindale,

22   M-a-r-t-i-n-d-a-l-e.

23         Q      Do you have a particular profession?

24         A      I do.   I am a licensed psychologist in the

25   states of Florida, New York, and New Jersey.      And
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1    within the profession of psychology, my specialty is

2    forensic psychology.

3          Q   And do you have any certifications in the

4    field of forensic psychology?

5          A   I do.   I hold board certification issued by

6    the American Board of Professional Psychology.

7          Q   And could you explain for us what that board

8    is.

9          A   The American Board of Professional Psychology

10   is, I believe, the only board of its type that is

11   recognized by the various states, by the malpractice

12   insurance carriers, and, I believe, still by the

13   American Psychological Association itself.

14             And what I mean by accepted is that if you

15   hold board certification from the American Board of

16   Professional Psychology and you want to obtain

17   licensure in another state if you're already licensed

18   in one state and you're moving or for some other reason

19   you want to be licensed in a second state, every state

20   with which I'm familiar waives certain licensing

21   requirements for you because you are a holder of that

22   credential.   And there is no other similar board whose

23   credential is treated with that respect.

24             As far as I know, the same is true with

25   malpractice insurance carriers.   The carriers that
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                   DAVID A. MARTINDALE, PH.D., ABPP            6

1    provide liability coverage for psychologists offer a

2    discount to individuals who hold that particular

3    credential.   And to the best of my knowledge, they do

4    not offer a discount to individuals who hold

5    credentials from any other organization.

6              And I am less certain about the APA.     They

7    may have recently changed their policy, but they used

8    to not permit holders of credentials from other

9    organizations with one exception to list those

10   credentials next to their names in the APA directory.

11   The exception was the National Register of Health

12   Service Providers in Psychology.

13             And so that organization and the American

14   Board of Professional Psychology issued credentials

15   that the APA permitted you to list when you provided

16   them with your biographical information for use in the

17   directory and other credentials that you might claim to

18   have and just not listed.

19        Q    How long have you had that board

20   certification?

21        A    Since '96.

22        Q    All right.   Have you, Doctor, testified in

23   the courts here in Florida as an expert witness?

24        A    I have.

25        Q    And in what particular judicial circuits or
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                    DAVID A. MARTINDALE, PH.D., ABPP            7

1    cities or municipalities?

2         A    I testified in Tampa in a custody dispute.

3    That was my only testimony in Florida.

4         Q    Okay.       Have you testified outside of Florida?

5         A    Yes, I have.

6         Q    And when was the case in Tampa that you

7    testified?

8         A    I'm guessing about three years ago.      I could

9    obviously check and let you know.

10        Q       And were you qualified as an expert witness

11   in that case?

12        A       I was.

13        Q       And do you remember the name of the judge?

14        A       I don't remember the name of the judge.   I

15   remember the case name off the top of my head and could

16   give that to you.

17        Q       And what is that?

18        A       Lien, L-i-e-n, v. Lu, L-u.

19        Q       Now, have you been qualified as an expert

20   witness in courts outside of Florida?

21        A       I have.

22        Q       In what states?

23        A       I've been qualified in New York; Arizona;

24   California; Texas; Indiana.       I would have to generate a

25   list for you.
Morgan J. Morey & Associates
                    DAVID A. MARTINDALE, PH.D., ABPP          8

1         Q    But those that you just testified to --

2         A    Yes.

3         Q       -- at least?

4         A    Yes.

5         Q    Let's first of all deal with New York.    Is

6    New York more than one case?

7         A    New York, there were several.    I would have

8    to figure out going back to my old records how many.

9    But my beginnings in forensic psychology were in the

10   custody area.    And in particular, I functioned as a

11   court-appointed evaluator for the counties of Nassau

12   and Suffolk primarily in New York.    And so much of my

13   testimony in New York was in my capacity as a custody

14   evaluator.

15        Q    And what about the other states?    Let's take,

16   for example, Indiana.

17        A    In each of the other states when I have

18   testified, it has been as what most people refer to as

19   a rebuttal witness where I have come in for the purpose

20   of offering commentary on the work already done by a

21   court-appointed evaluator in a custody case.

22        Q    And was that the nature of the expert

23   testimony in Arizona and California for example?

24        A    Yes, with one exception.    One of my

25   appearances in California was to bolster the work of a
Morgan J. Morey & Associates
                 DAVID A. MARTINDALE, PH.D., ABPP              9

1    court-appointed evaluator as opposed to providing

2    criticism of it.

3         Q    How many times did you testify as an expert

4    in California?

5         A    I'm only -- I can only think off the top of

6    my head of two because several of the cases that I was

7    involved in settled.   It may have been more than two

8    but only two come to mind.

9         Q    All right.   In the cases that you have

10   testified as a rebuttal witness in custody cases in

11   each of these jurisdictions, what basically would be

12   the nature of rebuttal testimony that you would offer?

13        A    The essence of the testimony that I offer in

14   the context of custody disputes is to examine the

15   methodology that was employed by the evaluator.     And

16   where I believe there to be flaws in the methodology, I

17   endeavor to explain to the judge what these flaws are,

18   what impact they might have on the ultimate opinions

19   that were formulated by the evaluator.

20        Q    Now, in connection with your testimony in

21   these jurisdictions, has the issue of evaluator bias

22   ever come up?

23        A    Yes, it has.

24        Q    And is that a regular issue in the cases that

25   you have been consulted on?
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                  DAVID A. MARTINDALE, PH.D., ABPP            10

1         A     I don't think I would characterize it as a

2    regular issue, but neither is it uncommon.      There are

3    certainly cases in which evaluators appear sometimes

4    from the outset to have developed strong feelings about

5    one or the other of the two litigants and where there

6    are indications either in the evaluator's

7    contemporaneously taking notes or in the evaluator's

8    formal report as submitted to the court that are

9    suggestive of bias.

10        Q     Now, let's just go over your education

11   background briefly.     Where did you do your

12   undergraduate education?

13        A     My undergraduate education was at

14   Middlebury College in Middlebury, Vermont.

15        Q     What was your degree that you received?

16        A     My major was psychology.

17        Q     All right.    And beyond that, what additional

18   education and training did you have?

19        A     I received a master's degree in psychology,

20   in particular experimental psychology from

21   Queens College of The City University of New York.

22        Q     And what year was that in?

23        A     That was in '65, I believe.

24        Q     Okay.   Could it be '66 if that's what's in

25   your CV?
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                   DAVID A. MARTINDALE, PH.D., ABPP          11

1         A    Yes.

2         Q    Defer to your CV.    And in addition to getting

3    your master's in experimental psychology, did you

4    receive a Ph.D.?

5         A    I received my doctoral degree in personality

6    psychology from the Graduate Center of the

7    City University of New York.

8         Q    Would it be fair to say that that was in 1971

9    if that's what your CV reflects?

10        A    Yes.

11        Q    Now, do you hold any licenses or

12   certificates?

13        A    I indicated I was licensed by the states of

14   New York, New Jersey, and Florida.   I had but I no

15   longer renew it because I don't need it a certificate

16   as a health service provider in psychology issued by

17   the National Register of Health Service Providers in

18   Psychology.   And I have the board certification from

19   the American Board of Professional Psychology.

20        Q    All right.   Now, have you held any

21   instructional positions?

22        A    Yes.   I've held instructional positions at

23   Nassau Community College; at John Jay College of

24   Criminal Justice; at Stony Brook University.

25        Q    And the work that you did at the
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                 DAVID A. MARTINDALE, PH.D., ABPP             12

1    John Jay College of Criminal Justice, would it be fair

2    to say that that covered the time period from 2000 to

3    2007?

4         A    Yes.    The only instructional work was during

5    the first semester of that period of time.    I taught

6    two courses in ethical issues in forensic psychology.

7    Subsequent to that, I stayed on as a non paid member of

8    the faculty just offering consultation to students in

9    their program.

10        Q    Now, you have published several articles and

11   books, have you not?

12        A    I have.

13        Q    Without going into them as far as by name or

14   whatever, approximately how many are we talking about?

15        A    I would have to take a count myself, but I'll

16   do that before you need me.

17        Q    Okay.    If your CV were to indicate that it

18   would be in excess of say 25 articles or so, would that

19   be a fair statement?

20        A    Certainly.

21        Q    Now, did you, in fact, publish an article

22   entitled "Bias and Prejudice in Custody Evaluations" in

23   2005?

24        A    I did.

25        Q    And what was the nature of that article
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1    generally?

2         A       The thrust of the article was on the ways in

3    which biases held by evaluators can impair their

4    objectivity during the course of conducting custody

5    evaluations.

6         Q    Now, do you also have a publication "Ethics"

7    in Forensic Psychology?

8         A    Yes.

9         Q    And could you explain what the thrust of that

10   particular publication and preparation is.

11        A       That particular chapter is intended to be a

12   broad discussion of ethical issues in all the different

13   areas of forensic psychology as opposed to just the

14   area in which I have in the past focused my work,

15   namely, child custody work.

16        Q       Has the work in child custody and bias

17   assisted you in studying the whole issue of bias in

18   other areas or other types of cases?

19        A       Yes.   I think that the research that is

20   available in the published literature about bias covers

21   a broad spectrum of situations.     Some of them and the

22   ones that are of greatest interest to me are the ones

23   in which the bias is such that it affects the judgment

24   of trained professionals as opposed to bias that simply

25   effects lay people in their day-to-day activities.
Morgan J. Morey & Associates
                 DAVID A. MARTINDALE, PH.D., ABPP             14

1         Q    So would it be fair to say that the thrust of

2    your studies of bias in child custody as well as your

3    current studies of bias in other areas or other types

4    of cases basically deals with the impact that bias has

5    on a professional in doing evaluations?

6         A    Yes.

7         Q    Now, when you review the work of a forensic

8    psychologist or review the evaluation of any

9    psychologist, what are the kinds of things that you

10   would look for to determine whether or not there was a

11   bias in the examiner or evaluator?

12        A    The things that I look for are of two types.

13   One is simply statements made by that evaluator either

14   in his or her own notes -- and in particular, there are

15   evaluators who make marginal notations to themselves on

16   whatever types of paper they're taking their notes

17   on -- or statements that are made in the report itself

18   that I believe to be reflective of bias.

19             The other source is discrepancies in the way

20   test data are described in a report.   There are times,

21   for example, when it is clear that negative features in

22   one person as revealed -- let's say by test data -- are

23   accentuated, discussed in great detail.    And similar

24   negative features in the other person are treated in

25   such a way as to suggest they are of minimal
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                    DAVID A. MARTINDALE, PH.D., ABPP          15

1    consequence.

2                The same can be true with positive

3    attributes.    That particular strengths in one

4    individual may be accentuated, and strengths in the

5    other individual are treated with just a passing

6    sentence.   That type of discrepancy, I believe to be

7    reflective of bias.

8         Q      Approximately how many separate either

9    evaluations or evaluators have you evaluated for bias?

10        A      Well, I haven't evaluated any specifically

11   for bias.   Meaning I have never approached the task

12   because someone specifically said to me, my concern

13   with regard to this particular evaluation is I believe

14   the evaluator to have been biased.

15               When I do the what we call "work product

16   review," I go into the task looking for anything and

17   everything which by the way includes looking for what I

18   believe to be the strengths in the way the evaluation

19   was conducted, not just the deficiencies.

20        Q      Have you actually testified to bolster the

21   opinions of evaluators in cases?

22        A      Yes, I have.   But the total number of

23   evaluations that I have reviewed is in excess of 2,000.

24        Q      So in other words, you have reviewed in

25   excess of 2,000 evaluation situations where
Morgan J. Morey & Associates
                  DAVID A. MARTINDALE, PH.D., ABPP         16

1    professionals had conducted evaluations to see if you

2    could find examples or items that would lead you to

3    believe that there may be bias issues or bias-related

4    issues?

5           A   Yes.   But I should clarify it.   Some of those

6    evaluations -- and I could give you exact numbers

7    obviously by checking -- are done by me for the

8    evaluator himself or herself.   The most common

9    situation is when people are relatively new to the

10   field and they for their own reasons, presumably

11   learning reasons, want a more senior member to review

12   their work so that some of the reviews that I have

13   conducted have not been conducted within a litigation

14   context.   They have simply been conducted as a

15   consultant to the person who did the evaluation.    The

16   vast majority of them have been conducted within a

17   litigation context.

18          Q   But in essence, you have reviewed the work of

19   approximately 2,000 separate professionals or at least

20   2,000 separate evaluations?

21          A   Separate evaluations.   Some of them -- some

22   of those have been done by the same professional.

23          Q   Now, if you conduct a review, what are some

24   of the kinds of things that you generally will look

25   for?
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1         A    I look for ways in which an evaluator either

2    has or has not adhered to generally agreed upon

3    procedures in terms of how data are collected, what

4    types of data are collected.    So I'm looking both from

5    a qualitative and a quantitative perspective.     Was the

6    data gathered in the right way from the right sources,

7    and was enough data gathered in order to form the basis

8    for an opinion?

9              If psychological testing has been done, I

10   will look at the psychological testing and indicate

11   whether or not I agree with the interpretations that

12   have been offered of the data that are provided in the

13   psychological tests.    And in that mix, I look for the

14   possibility of bias, and there really are two different

15   types of bias.

16        Q    And what are the two types of bias?

17        A    The two types basically are attitudinal

18   biases which are the ones that we as a culture talk

19   about the most.    Attitudinal biases included biases

20   that relate to race; religion; age; sex;

21   characteristics of particular people based upon them

22   being members of specified groups.

23             And cognitive biases, cognitive biases relate

24   to the ways in which we are predisposed to process

25   information.    And if I can just give one simple
Morgan J. Morey & Associates
                   DAVID A. MARTINDALE, PH.D., ABPP            18

1    example, one of the most frequent cognitive biases that

2    we run across in custody work is known as the primacy

3    effect, which is familiar to lawyers.    It really

4    relates to the advantage that comes from being the

5    first to present your position.

6                 And very frequently what we see in custody

7    cases is that the person who sees the evaluator first

8    causes the evaluator to, in essence, form a mental

9    framework within which all the subsequently gathered

10   information is fit.    So that before I even lay eyes on

11   parent number two, I've already developed a certain

12   impression of how these people met; why they were

13   attracted to one another; what their relationship was

14   like before things went sour; what the problems were;

15   what the obstacles were to their being able to just

16   resolve this by themselves instead of becoming involved

17   in the justice system.    All of these preliminary

18   impressions can affect the way in which I then deal

19   with the second person to come through the door.

20        Q       These reviews when you review somebody's

21   work, do these include any statements that the

22   evaluator or examiner may make outside of the report

23   situation?

24        A    Ordinarily not because usually the only

25   records that are provided for my inspection are records
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1    maintained by the evaluator or formal records such as

2    depositions and things of that sort.

3         Q      Have you ever had situations where an

4    evaluator would make statements, for example, that you

5    might utilize in newspapers?

6         A      I have not, no.

7         Q      How about like on television or radio

8    programs?

9         A      Not that either.   The closest I can give to

10   an example is the issue of marginal notes, and I've

11   certainly had cases where evaluators have made notes to

12   themselves which subsequently became disclosed during

13   normal discovery process.      And would you like an

14   example?

15        Q      Yes, an example of that.

16        A      In one case, a case that I lecture about, an

17   evaluator wrote on the very first page of her notes of

18   her very first meeting with one of the litigants

19   "LLPF."    It turned out that "LLPF" was her abbreviation

20   for liar, liar, pants on fire indicating that within

21   the first 15 minutes roughly of her discussions she had

22   already concluded that this person was lying.

23        Q      Now, if an evaluator develops that kind of a

24   bias in a forensic psychology case, what are their

25   duties or what are their ethical obligations under the
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1    ethical rules for psychologists?

2         A      I don't think it's clear in the example that

3    I gave.    Because in the example that I gave, the task

4    has already begun.    So then the dilemma becomes how do

5    I minimize the harm that might result from the fact

6    that I now have a bias and presumably realize it.      Do I

7    do more harm to these people both economically and in

8    other ways if I say, I realize I'm biased and I

9    withdraw?   Or do I do -- am I being more responsible if

10   I simply try and get a grip on myself, so to speak, and

11   try and control for whatever it is that I've realized

12   I'm now feeling?     The situation is different where the

13   bias is apparent before the assignment is even

14   accepted.

15        Q      For example, if in fact an evaluator had

16   expressed for a bias against a litigator before there

17   was ever an evaluation, before everything happened, you

18   would look upon that as a different situation than like

19   somebody writes something in the notes after they had

20   started an evaluation?

21        A      Yes.   And the opposite, by the way, is also

22   true.    You're describing a negative situation.   There

23   have been cases within my experience where an

24   evaluator -- evaluators also occasionally get divorced

25   and have custody disputes.
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1              Where an evaluator is represented by an

2    attorney and the attorney representing someone else

3    puts that evaluator's name into the hopper as someone

4    possibly to be court appointed to do an evaluation in

5    this custody dispute and neither the attorney nor the

6    evaluator make known the fact that the evaluator is

7    represented by this person in his or her own divorce or

8    custody dispute.

9              So obviously, if I am dependent upon you to

10   vigorously represent me in my own dispute, it makes it

11   very difficult for me to be objective in a custody case

12   where you're representing Mr. or Mr. Smith and I'm

13   supposed to be doing an objective evaluation of Mr. and

14   Mrs. Smith.

15        Q    Do the ethical rules as you interpret them

16   for psychologists require that you withdraw in that

17   kind of a situation?

18        A    Yes.   The ethical rule, I believe, is pretty

19   clear that if you have any kind of a relationship that

20   would interfere with your ability to perform the task

21   in question, you are supposed to remove yourself from

22   consideration.   And it doesn't matter whether the

23   nature of the relationship is personal or professional.

24   Anything that you know or ought to know will impair

25   your objectivity should be taken into consideration by
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1    you as you consider whether you're suitable for the

2    assigned task.

3              MR. WILLS:     All right.   At this particular

4         time I think I'm going to turn this over to

5         Mr. de la Torre for some questions regarding some

6         of the materials that you have reviewed in

7         connection with this case, and I may have some

8         follow-up after.

9              THE WITNESS:    Can we go off the record for

10        one second?

11             MR. WILLS:     Yes.

12             (Off the record discussion.)

13                      CROSS EXAMINATION


15        Q    Good afternoon.

16        A    Good afternoon.

17        Q    Do you have any future engagements where you

18   have been retained to give any presentations involving

19   the field or the subject of bias, psychological bias?

20        A    I do.

21        Q    And what is that?

22        A    I have been retained by the Massachusetts

23   Association of Guardians Ad Litem to give a full-day

24   presentation for their organization on October 1st of

25   this year.
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1         Q    And that's about bias; isn't that correct?

2         A    And it's about bias as it affects custody

3    evaluations.

4         Q    Let me direct your attention to how you got

5    involved in this matter.    Did I contact you on this?

6         A    You did.

7         Q    And pursuant to this matter, did I send you

8    material to review?

9         A    You did.

10        Q    And referring to one of the first things I

11   sent you, the case of the State of Florida vs.

12   Bernard Joseph involving a psychologist by the name of

13   Michael P. Brannon and the assistant public defender in

14   the case, George Reres, R-e-r-e-s, involving a first

15   degree murder case.    And I asked you to review the

16   transcript.    Did you get a chance to do so?

17        A    I did.

18        Q    Okay.    Let me offer you a copy of it.   In

19   reviewing this transcript, did you see a line of

20   questioning between Mr. Reres and Dr. Brannon regarding

21   the relationships of Dr. Brannon with the Public

22   Defender's Office?

23        A    Yes.

24        Q    In particular what was that, if you recall?

25        A    The essence of the interaction related to the
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1    fact that the Public Defender's Office had switched

2    from a system in which they were strongly favoring this

3    one particular expert to a system in which they were

4    endeavoring to rotate experts.

5         Q      Okay.   And was there a personal comment made

6    about Mr. Reres in relation to a question asked to

7    Mr. Reres to Dr. Brannon?

8         A      Yes.

9         Q      And what was that?

10        A      The statement made by Dr. Brannon was that he

11   felt badly that Mr. Reres was demoted from his position

12   as the head of homicide.

13        Q      Are there any ethical concerns when you read

14   this as a board certified forensic psychologist when a

15   statement like this is made by an evaluator in front of

16   a jury?

17        A      I would expect that the evaluator would

18   recognize that this is a statement which is far more

19   likely to be prejudicial than probative and that in

20   particular it casts Mr. Reres in a negative light if

21   for no other reason than his use of the word "demoted."

22   He's not making reference to a change in someone's

23   position.   He's specifically labeling that change as a

24   demotion.   And by doing so, he's letting the people on

25   the jury know that this person who is now cross
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1    examining me is someone you people need to know has

2    been demoted.

3         Q     Okay.   And are there ethical concerns or

4    ethical rules that that contradicts in your profession?

5         A     I would say that the standard that is most

6    applicable is the general standard that when we take

7    the stand, our sole obligation is to assist the trier

8    of fact.   In this case the trier of fact is the jury.

9    You do not assist the jury by throwing in information

10   which at best is extraneous and at worst is

11   prejudicial.

12        Q     In the field of bias and evaluations, does

13   this statement concern you?

14        A     It does.

15        Q     Can you explain why?

16        A     Well, it certainly suggests that by

17   Dr. Brannon's own admission there is friction between

18   him and the personnel within the Public Defender's

19   Office.

20        Q     And can this friction or bias make a negative

21   or some sort of effect in an evaluator's final

22   evaluation of a defendant or a client in the Public

23   Defender's Office?

24        A     Yes, it can.

25        Q     And how can that happen?
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1         A      Any personal attitudes that I hold toward

2    litigants or toward those who are representing

3    litigants impairs my objectivity.

4         Q      Okay.     Is there anything else about this

5    statement that you think is important that I haven't

6    asked you?

7         A      I don't believe so.

8         Q      Okay.     I want to direct your attention now to

9    a juvenile matter and specifically one that occurred on

10   May 14th of 2009, specifically a juvenile matter that

11   occurred in front of the 17th Judicial Circuit in front

12   of Judge Merrilee Ehrlich -- that's E-h-r-l-i-c-h --

13   styled In Interest of C. J., a child.       Did I send you

14   that transcript?

15        A       Yes.

16        Q       Specifically, did you review the portion of

17   the transcript regarding Assistant Public Defender

18   Lynne DeSanti?

19        A       I did.

20        Q       Do you recall the controversy or dispute that

21   occurred between Assistant Public Defender Lynne

22   DeSanti on September 24, 2009, between her and

23   Dr. Brannon?

24        A       I prefer to look at the transcript if that's

25   possible.
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1         Q      Sure.    And I'm referring specifically for the

2    record to page 31 of the transcript and -- pardon me --

3    page 42 through page 43.      If you can take a moment to

4    review this, and it describes what Dr. Brannon

5    testified as to the dispute.     After you've gotten a

6    chance to review that, if I can give you Ms. DeSanti's

7    portion of the testimony and give you a chance to

8    review it.

9         A      Do you wish me to comment on what you've

10   given me now first?

11        Q       Yes, sir, please.

12        A       I think the key element is to be found on

13   page 44 beginning on line 4 where Mr. Seidman is

14   speaking, and he says, State has an objection here.

15   Whether or not Dr. Brannon has had a confrontation with

16   an individual in the Public Defender's Office has no

17   bearing whether or not he has a bias against the entire

18   office.

19                And my comment would be that I strongly

20   disagree.    I think it is naive at best to assume that

21   where a confrontation has taken place that there isn't

22   reasonable cause for concern that in this case

23   Dr. Brannon may have a negative attitude about the

24   personnel in the Public Defender's Office.

25        Q       Okay.   I would like to give you a chance to
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1    review Ms. DeSanti's portion of the testimony in the

2    same transcript starting on page 87.

3         A    I've completed my review of these two pages.

4         Q    Okay.   What does that tell you?

5         A    The essence of the testimony is that

6    according to the testimony, Dr. Brannon confronted

7    Ms. DeSanti and accused her of spreading lies about him

8    and then went on to say that she and her friends -- and

9    I will presume that he was referring to her colleagues

10   in the Public Defender's Office -- are in his word --

11   I'm sorry -- in her words describing his words, messing

12   with his business.

13        Q    Let's talk about that for a minute: the

14   evaluator's concern about his business.      What issues

15   does that raise to you as a board certified

16   psychologist -- raise bias or ethical concerns?

17        A    I think if I return to my earlier testimony

18   in which I described my understanding of the initial

19   nature of the friction which was that Dr. Brannon had

20   been getting what appears to be the bulk of the work

21   and then a decision was made to rotate experts so that

22   his portion of that work dropped off significantly, I

23   think that the essence of what he is saying when he

24   used the phrase -- if it has been reported correctly --

25   "like messing with my business" is that he feels that
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1    there has been an economic impact on him as a result of

2    this decision to rotate experts and that he appears in

3    his actions to be expressing his resentment of the

4    Public Defender's Office for having made that decision.

5               My position would be that if there is

6    resentment whether or not it's realistic for him to

7    feel that resentment -- if there is resentment, that

8    resentment is, in essence, a form of bias that

9    interferes with his ability to be objective in

10   evaluating clients that are represented by the Public

11   Defender's Office.

12        Q     Let me show you now from the same hearing,

13   same transcript -- and now I apologize.   But I go back

14   to Dr. Brannon testifying and ask you to review

15   page 75.

16        A     Yes.

17        Q     Now, what statement in that page that I gave

18   you, if any, caused you concern?

19        A     Dr. Brannon is being asked whether or not he

20   made the statement -- this is on line 3 -- you're

21   taking food out of my mouth.   And on line 4 in

22   responding, he says, I absolutely said that.

23        Q     What gives you concern?

24        A     Aside from what I said earlier which is that

25   he is making a statement about the economic impact on
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1    him and expressing resentment toward the Public

2    Defender's Office for this reduction in work, he is

3    expressing it in a very emotional way.

4              The phrase "taking food out of my mouth" has

5    a particular emotional quality to it.    So it goes well

6    beyond making a statement of fact which is something

7    like, I used to get such and such amount of business

8    from your office, and now I'm getting less, and I'm

9    feeling the economic impact.    The fact that he phrases

10   it in this way "taking food out of my mouth" heightens

11   my sense of this as an expression of resentment.

12        Q    Now, as an expert in bias, does this raise

13   alarms to you?

14        A    It certainly suggests again that there is

15   reason for Dr. Brannon himself to question his ability

16   to be objective in work that involves the

17   Public Defender's Office.

18        Q    Okay.   I want to direct your attention now --

19   I sent you a copy of an evaluation done by Dr. Brannon

20   of one of our clients and also a jail log that

21   indicates at the point in time that he signed in and

22   then signed in at the jail.    And I'm going to hand it

23   to you and ask you if you recognize it.

24        A    I do.

25        Q    Is that what I described as the evaluation
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1    and in the back the log?

2           A   Yes.    Do you wish me to identify it with the

3    defendant's name?

4           Q   That's not -- yeah, please.

5           A   Yeah.   The defendant's name in this case is

6    Jimmie, J-i-m-m-i-e, Davis, D-a-v-i-s.

7           Q   When you reviewed the log regarding this

8    particular case, what does it show you as the amount of

9    time that the evaluator, Dr. Michael Brannon, spent

10   with the defendant?

11          A   I believe from memory -- though I'm having

12   difficulty reading this copy -- that it was 13 minutes.

13   Yes.    Yes, that's correct.

14          Q   Okay.   Do you have an opinion, not

15   necessarily whether the legal obligations of the

16   evaluations were met -- that being what was put in,

17   what was asked -- but the quality of an evaluation

18   that's done in 13 minutes and being able to ascertain

19   all this information from a particular individual?

20          A   I would simply express my concern that the

21   questions that need to be posed, the answers that need

22   to be obtained could be obtained in this short a period

23   of time.   There has to be at least some warm-up period.

24   If you look at most psychological reports and in almost

25   any context -- employment context, any other context --
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1    they very frequently believe -- begin with a relatively

2    standard phrase that says something like, rapport was

3    established.

4              We among ourselves, I believe, are in

5    agreement that in order for a face-to-face evaluation

6    to be valid at least some minimal degree of rapport

7    must be established which presumably means some amount

8    of what many people would call small talk,

9    conversation, a warm-up period.    It's not clear to me

10   and it certainly is not indicated anywhere in the

11   record how it was possible for Dr. Brannon in a

12   13-minute period to develop rapport and then to pose

13   all the questions that the statutes require in order to

14   formulate an opinion with regard to competency.

15        Q    Okay.    I want to redirect your attention to

16   the juvenile transcript, and I apologize for jumping

17   back and forth.    Specifically, do you recall reading in

18   that juvenile transcript where Dr. Brannon describes

19   after having a confrontation with Linda DeSanti then

20   having also a confrontation with the Public Defender in

21   Broward County, Howard Finkelstein?

22        A    I do.

23        Q    Do you recall him saying that in all

24   conversations he's had with Mr. Finkelstein that

25   Mr. Finkelstein was aggressive toward him?
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1         A    Yes.

2         Q    Does this raise concerns for you regarding

3    bias toward an office when an evaluator describes his

4    relationship with the head of that organization in that

5    manner?

6         A    It's part of the same dynamic that we see in

7    the phrase "taking food out of my mouth."    The essence

8    of it is Dr. Brannon appears through his statements to

9    believe that he is being treated unfairly by the Public

10   Defender's Office.

11             And my contention would be that once he has

12   formulated that opinion of your office -- again whether

13   that opinion is or is not with true foundation.       Once

14   he has formulated that opinion, it is impossible for

15   him to remain neutral in cases that involve your

16   office.

17        Q    And an evaluator's bias towards an attorney

18   or attorney's office, is that important and can that

19   seep out in an evaluator's job in doing an assessment

20   of a client?

21        A    In my professional opinion, the answer is

22   absolutely.    I am aware that there may be some

23   controversy about this because it has broader

24   implications.    I believe that most judges off the

25   bench, off the record would acknowledge that if they
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1    have a personal dislike for an attorney, it affects

2    their ability to objectively examine the litigant's

3    position before the court.       It's something that we all

4    regret.

5              But part of this all boils down to the

6    unfortunate reality that with being human, which is

7    obviously nice -- we would not wish to be tried by

8    computers.    But there is a downside, and the downside

9    is that we can be affected by attitudes which don't

10   make sense, but they govern our emotion.       So that if I

11   am angry at an attorney and I'm a judge and the

12   attorney represents a particular client, that anger

13   that I feel at the attorney may affect me as I evaluate

14   the position of the litigant before the court.

15        Q       What if you are a psychologist and you're

16   angry at the attorneys, does that same thing wash over

17   to that scenario if you're an evaluator --

18        A       The same --

19        Q       -- or psychologist?

20        A       The same is true.     And the simplest evidence

21   of this is the divorce rate among mental health

22   professionals.    In particular, the divorce rate among

23   mental health professionals is no lower than the

24   divorce rate among the general public.

25                And what we ought to realize from that is
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1    that no matter how much we learn in books about

2    interpersonal interactions, when it comes down to real

3    life and interacting with in this case our spouses, we

4    don't seem to be any more effective at it than anybody

5    else.    And the reason that I think this statistic is

6    compelling is because those mental health professionals

7    that deny that they are susceptible to bias inevitably

8    suggest that somehow our knowledge and our training

9    enables us to not be affected by these things.

10               And my point in raising the issue of the

11   divorce rate is that when it comes down to human beings

12   interacting with other human beings, no matter how much

13   we have studied things like bias, our study of this

14   dynamic does not render us immune from it any more than

15   a physician's study of various germs renders the

16   physician immune from the effect of those germs.

17        Q      Let me touch on that a little bit more.    Is

18   an evaluator or a psychologist capable or able to

19   evaluate his or her own bias in a particular case?

20        A      No.   And I think that there is research that

21   shows that we are unable the same as other people are

22   to recognize biases in ourselves.

23        Q      Let me show you a letter dated June 28, 2010,

24   from the office of the Public Defender's Administration

25   to Dr. Brannon and ask you:     Have you seen this before?
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1         A      Yes, I have.   And --

2         Q      Go ahead.

3         A      I will just identify it as a letter dated

4    June 28th of 2010 written to Dr. Brannon and appearing

5    over the signature of Howard Finkelstein and eight

6    other members of the Public Defender's Office.

7         Q      Okay.   And what does that letter ask

8    Dr. Brannon to do, if anything?

9         A      The letter, in essence, expresses the

10   concerns of your office with regard to Dr. Brannon's

11   bias.    And if you would like me to, I can read the last

12   paragraph.

13        Q      Yes, please.

14        A      The last paragraph simply says, it is clear

15   to us that your strong bias against this administration

16   has made you incompetent to act as a mental health

17   evaluator for our clients.     We are therefore requesting

18   that you immediately refuse court appointments to

19   evaluate public defender clients.     Please govern

20   yourself accordingly.

21        Q      Dr. Martindale, what would a reasonable

22   psychologist in the field of forensic psychology do or

23   should do when receiving a letter like that from a

24   potential client?

25        A      It is my opinion that Dr. Brannon after
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1    having received that letter should have responded by

2    agreeing to what Mr. Finkelstein and the other

3    signatories to that letter asked which is that he

4    voluntarily remove himself from cases involving the

5    Public Defender's Office.

6         Q    What do you say that?

7         A    Because I believe that when an expert witness

8    takes the stand, the two most essential ingredients are

9    the expert's expertise clearly and the expert's

10   credibility that no matter how much knowledge you may

11   have about the topic in dispute if you are for any

12   reason perceived as being less credible, that

13   interferes with your effectiveness.

14             And I think that when one side in a dispute

15   goes on record as saying, we view you as holding a bias

16   against our organization that the mere fact that that

17   statement to you has been made in a formal manner, I

18   think leaves you in the position of being unable to

19   separate your work from the emotional reaction that you

20   must feel when you get this letter, and that in turn

21   diminishes your credibility as an objective evaluator.

22        Q    I want to direct your attention now to a

23   transcript in a case, State of Florida vs.

24   Patrick Young, Y-o-u-n-g, on March 2, 2010, and ask you

25   to read page 61 of the transcript where Dr. Brannon is
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1    on the stand being questioned by Attorney Joseph Walsh,

2    W-a-l-s-h, a private practitioner out of West Palm

3    Beach.

4         A      The important part as I see it, page 61

5    beginning with the questioner, you have had some issues

6    with the Public Defender's Office here in Broward.

7    Will you agree with that?

8                Line 12 is Dr. Brannon's answer.

9    Dr. Brannon's answer is, they've had issues with me.

10               Then it goes on, obviously sometimes these

11   things are reciprocal.   Sometimes one issue is another.

12               Dr. Brannon simply says, I understand.    I

13   will take that to mean when he says "I understand" that

14   he as a psychologist is aware of the natural

15   reciprocity of emotional reactions in interpersonal

16   dynamics.

17               By which I mean, the people that I tend to

18   like not surprisingly are the people that like me.        And

19   the opposite is also true that if someone says to me

20   repeatedly and on at least one occasion in a formal

21   document, I'm not comfortable with you, I cannot

22   possibly remain comfortable with the person who's made

23   that statement to me.

24               So that Dr. Brannon's statement that the

25   public defenders have issues with him is similar to two
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1    kids getting into a dispute where one of them says, he

2    hit me first.    It doesn't really matter.   Once the

3    hitting starts, a fight ensues.    And the same is true

4    even if all we're talking about is words.     There have

5    been some very unpleasant words exchanged.

6              And for Dr. Brannon to take the position that

7    it's not me, it's you guys, ignores the fact that once

8    this dynamic has started regardless of whose fault it

9    may have been if that's even relevant.    Once the

10   dynamic has started, I fail to understand how he can

11   take the position that it doesn't interfere with his

12   objectivity.    It seems to me that what we know about

13   psychology tells us that it has to interfere with his

14   objectivity.

15        Q    Thank you.    I want to show you now a

16   newspaper article that appeared about the controversy

17   that we're talking about today in the Fort Lauderdale

18   Sun-Sentinel on August 2, 2010.    And I hand it to you

19   and ask you if you've seen that before.

20        A    I have.

21        Q    And have you reviewed it in your preparation

22   to make an assessment in this particular matter?

23        A    I have.

24        Q    What, if anything, concerns you in reading

25   this article?
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1              THE WITNESS:    Off the record for a second?

2              MR. WILLS:   Yes.

3              (Discussion off the record.)

4              MR. DE LA TORRE:    We're back on the record.

5         And I gave Dr. Martindale my copy which the

6         letters are extremely small.    I have a magnifying

7         glass to try to read it myself.


9         Q    You're looking it up now in your computer; is

10   that correct?

11        A    Yes.

12        Q    Thank you.

13        A    The parts of the article that to me are most

14   important are as quoted by the reporter:    Dr. Brannon

15   said that the Public Defender's Office has made him the

16   target of a witch hunt.

17             And he went on to say they -- presumably

18   meaning the staff of the Public Defender's Office --

19   are like villagers from Salem going out to try and find

20   witches to burn at the stake.    And he added, it doesn't

21   matter if the person is a witch.    They just want to

22   feel good about the burning.

23             Feeling good about the burning suggests that

24   as Dr. Brannon perceives this, the Public Defender's

25   Office is punishing him by depriving him of income,
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1    taking food from his mouth.    And he, in essence, when

2    he says it doesn't matter if the person is a witch is

3    also saying it doesn't matter to them whether there is

4    a good reason or not a good reason for having made this

5    decision to rotate experts thereby depriving me of an

6    income which I was enjoying so that he is essentially

7    accusing the office of taking retribution for something

8    unspecified.

9               And again, I would point out that if that is

10   his position, I don't see how he can subsequently state

11   that his ability to function as an objective, impartial

12   evaluator of clients represented by the Public

13   Defender's Office is not impaired by this attitude.

14        Q     I want to now give you a copy of an e-mail

15   that I sent you regarding a statement written by

16   Assistant Public Defender George Reres and a certain

17   agreement that he had with Dr. Brannon when Dr. Brannon

18   was employed and retained by the State Attorney's

19   Office.   Do you recognize that, Doctor?

20        A     Yes, I do.

21        Q     And what's that tell you?

22        A     The essence of the e-mail is that you are

23   being informed in this e-mail that Dr. Brannon

24   endeavored to engage in an arrangement in which if he

25   were to be given more work by the Public Defender's
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1    Office that he would use his influence with the

2    Prosecutor's Office to engage in a prearrangement that

3    presumably would be advantageous to the client being

4    represented by the Public Defender's Office.

5         Q    Is there ethical concerns here as a

6    psychologist doing something like that when you're

7    employed by the state attorney and you talk with the

8    defense attorney and say I'm going to help you get a

9    charge reduction?   Is there ethical concerns?

10        A    There is an ethical concern because it

11   represents a conflict of interest.   If my interest in

12   obtaining more opportunities to engage in remunerative

13   work conflicts with my obligation to perform a certain

14   task with objectivity and make recommendations based

15   upon my evaluation as opposed to based upon wanting to

16   please someone, that is a classic conflict of interest.

17        Q    Now, I sent you a tape, is that correct, a

18   DVD tape of Dr. Brannon on The Today Show, I believe?

19        A    Yes.

20        Q    It was regarding a case of Wayne Treacy --

21        A    Yeah.

22        Q    -- a juvenile in Broward County, a highly

23   publicized case.    Did you get a chance to see that DVD?

24        A    I did.

25        Q    Are there ethical concerns or problems with a
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1    psychologist going on national TV or any sort of media

2    and talking about a particular case that they're

3    employed with and dealing with in hopes of boosting

4    their own ability to gain other cases or make money?

5         A    Built into your question, I hope you will

6    acknowledge is a statement about his motives.

7         Q    True.

8         A    I will state for the record that I'm not

9    going to pass judgment on his motives.   But I believe

10   that someone with expertise in the judicial system --

11   how it works, how jury trials work particularly in

12   cases where a jury is not sequestered -- should be

13   aware that public statements made during the course of

14   a trial, aired on television can have a detrimental

15   effect on the system that is intended to produce a just

16   outcome and that it is difficult to imagine what

17   acceptable motives might be involved in making the

18   decision to go on television and discuss a case that is

19   currently at trial.

20        Q    In addition to that, are there ethical

21   concerns when a psychologist evaluator is dealing with

22   a client/a defendant and speaking to that defendant

23   dealing with his case and then going to the media?     Are

24   there any violations of ethics in doing that?

25        A    There are certainly violations of ethics
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1    again because you don't know what the effect of this

2    information when aired publicly will have on the trial

3    process.

4         Q     Okay.   Now, you're aware that my office is

5    the Public Defender's Office, and we deal with indigent

6    clients?

7         A     Yes.

8         Q     And because of that, many times psychologists

9    are not hired by my office but are appointed by the

10   court?

11        A     Yes.

12        Q     Now, is there a presumption in the field of

13   psychology or in the courts that we have to make

14   regarding those psychologists that are being appointed

15   regarding bias?

16        A     Yes, of course.

17        Q     And what would that be?

18        A     The presumption with regard to any

19   court-appointed expert as contrasted with a retained

20   expert is that the court-appointed expert is obligated

21   only to the court which presumably means that the

22   expert will be neutral and that there are no known

23   limitations on the expert's capacity to maintain

24   objectivity.

25        Q     After reviewing all the material that was
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1    sent to you, do you have an opinion within reasonably

2    psychological certainty whether Dr. Brannon has a bias

3    that would preclude him or should preclude him from

4    being an unbiased evaluator in public defender cases?

5         A    Yes.

6         Q    And what is that?

7         A    My opinion based upon his statements of

8    record is that he is acknowledging that there is

9    friction between him and the Public Defender's Office

10   and that the mere existence of that friction whether it

11   is his fault, the Public Defender's Office fault, or

12   nobody's fault or both parties' fault interferes with

13   his ability to objectively evaluate clients that are

14   represented by the Public Defender's Office.

15        Q    In reviewing all the material, are you

16   surprised that not only Dr. Brannon but any reasonable

17   forensic psychologist would not have removed themselves

18   from public defender cases in this scenario?

19        A    I am.

20        Q    And why is that?

21        A    I believe that when one accepts the basic

22   notion that the obligation of the expert witness is to

23   assist the trier of fact, if one side in the dispute

24   expresses concern, particularly if they are able to

25   document the reasons for that concern -- when they
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1    express concern about an expert's ability to maintain

2    objectivity, then I think the appropriate thing for the

3    expert to do is essentially to say, I regret the fact

4    that you've lost confidence in my ability to maintain

5    my objectivity.   But if that is the case, I will remove

6    myself from consideration.

7              MR. DE LA TORRE:    Thank you.    I don't have

8         any further questions.    Bob?

9                        REDIRECT EXAMINATION

10   BY MR. WILLS:

11        Q    Doctor, I want to refer back to the first

12   transcript that Mr. de la Torre referred to in his

13   questions to you.   This is the incident where Mr. Reres

14   was questioning Dr. Brannon, and Dr. Brannon

15   voluntarily interjected about the demotion.

16        A    Yes.

17        Q    Okay.   On that particular transcript after

18   there was the discussion of the demotion, basically

19   Mr. Reres asked the question:    Would you agree, Doctor,

20   that my demotion had absolutely nothing to do with this

21   case or your involvement in any case at any time?

22             And the response was by Dr. Brannon who

23   testified in front of the jury:       You asked me what I

24   was concerned about and issues that I have, so I was

25   listing those issues.    I think you are clearly
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1    recognized as the best attorney in that office.

2                Let me stop right there.   Is there anything

3    about that comment that you think would be

4    inappropriate based upon your studies of evaluators'

5    bias?

6          A     Well, there are really two issues as I see

7    it.   One is that he's commenting on something that is

8    well outside his sphere of expertise.     He has no way of

9    knowing who's an effective litigator and who is not an

10   effective litigator.   That's not his field.

11               But what I perceive in this statement -- and

12   obviously, I don't know what 12 jurors would

13   perceive -- is that there's an implicit accusation that

14   the office treats people unfairly because he is on the

15   one hand pointing out that this person has been demoted

16   and on the other hand pointing out that in his opinion

17   this person who has been demoted is the best person

18   around which suggests that the office -- whoever is in

19   charge of promoting, demoting -- treats people

20   unfairly.

21         Q     And if an evaluator has the belief that an

22   office treats somebody unfairly, would that indicate a

23   bias that they have against that office?

24         A     Yes.

25         Q     And further in that transcript the statement
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1    was made in that same questioning:   But I think I've

2    said that many times to many people, but I think that

3    was capricious and unfair what happened to you.

4              Now, you agree that that's something you

5    wouldn't necessarily expect an evaluator to testify to

6    when they're evaluating somebody's competency in a

7    case?

8         A    No.   And again, the two words "capricious"

9    and "unfair" speak for themselves.   I don't need to

10   translate them.

11        Q    Does that to you indicate what we might

12   consider to be a red flag of bias?

13        A    He's clearly expressing a negative attitude

14   about the office.

15        Q    And if an evaluator has that negative

16   attitude towards an office that is representing someone

17   that he's evaluating, is there to a reasonable degree

18   of psychological certainty a genuine concern about bias

19   and how he would properly evaluate that person?

20        A    Yes, there is.

21        Q    Now, when there is bias or indications of

22   bias that are apparent, would it be your testimony that

23   the obligations of the evaluator would be to go and

24   remove himself from those cases based upon the rules of

25   ethics and other consideration of psychologists?
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1         A    That's my opinion, yes.

2         Q    And would it be your opinion that in the

3    event the person didn't remove themselves and purported

4    to continue to evaluate persons represented by that

5    office that the standards and the procedures and the

6    conclusions of the evaluation would be suspect because

7    of the bias?

8         A    That would be my position, yes.

9         Q    Do you have an opinion as to whether or not

10   that kind of evaluator should testify to help the

11   finder of fact if they have that kind of a bias?

12        A    Well, testimony follows the evaluation.    And

13   I've already indicated in my view the evaluator should

14   withdraw from consideration as an evaluator which would

15   obviously mean they would not be testifying.

16             If we're discussing a case in which the

17   evaluation has already been completed, my statement

18   would be that, yes, there is reason to question the

19   objectivity with which the evaluation was conducted.

20        Q    Now, the newspaper article that

21   Mr. de la Torre talked to you about where there is this

22   reference to the witches --

23        A    The witches of Salem.

24        Q    The witches of Salem, does a statement like

25   that support the view or support the concern that, in
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1    fact, Dr. Brannon would have a bias against this

2    office?

3         A    Yes, it does.     If I may add, it fits in with

4    his own use of the word "capricious."    One has to be

5    capricious if as he put it, it doesn't matter if the

6    person is a witch; they just want to feel good about

7    the burning.

8         Q    So if, in fact, Dr. Brannon had conducted an

9    evaluation of a defendant even prior to when this

10   controversy or this bias occurred but now he's called

11   to testify today, would it still be your testimony that

12   the person should not be testifying?

13        A       Yes, I certainly think there's a reasonably

14   foreseeable risk that the controversy, the friction

15   would affect him in delivering his testimony.

16        Q    And would you agree or have an opinion as to

17   whether or not that that kind of a bias would prevent

18   someone to be able to give an opinion to a reasonable

19   degree of psychological certainty?

20        A    I would not feel comfortable using the word

21   "prevent."     I would feel more comfortable viewing this

22   in a probabilistic fashion.     The obligation of the

23   expert is to take all reasonable precautions to protect

24   him or herself from being adversely affected by biases.

25   And I think that the more evidence there is that bias
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1    exists, the more likely it is that that bias will have

2    an adverse affect upon one's objectivity in conducting

3    an evaluation.   And if it has already been completed

4    will have an adverse affect upon one's ability to

5    objectively and dispassionately offer testimony.

6              I don't think we can describe it as a

7    certainty which is what I read into the word "prevent,"

8    so I would not put it in those terms.   But certainly, I

9    think it is a situation in which the dynamics that are

10   now a matter of record can be reasonably seen as very

11   likely to reduce the possibility, the probability that

12   he will be able to function as an effective, objective

13   testifying expert witness.

14        Q    Now, Doctor, one of the issues in connection

15   with Dr. Brannon and the Public Defender's Office is

16   that at one particular time Dr. Brannon was receiving

17   an annual compensation in excess of $600,000 from this

18   office, and then the office switched a policy and went

19   to a rotation which had a dramatic decrease in the

20   amount of compensation of an expert.

21             Now, would the change, a drastic level of

22   change like from 600,000 to $60,000 a year -- would

23   that in and of itself be an indication of a bias?

24        A    A bias on the part of the public defender?

25        Q    On behalf of the expert witness.   I guess
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1    what I'm saying is:   Would that in and of itself

2    indicate to you that the witness has a bias?

3         A     No.

4         Q     So the fact that he lost the money, you know,

5    that could be an explanation for the feelings, but it's

6    these other statements that were made and these other

7    words that were used.    That is the basis of your

8    opinion.   Would that be a fair statement?

9         A     Yes.   I mean, in essence, as much as money is

10   an issue for most people in this culture, there are

11   people who take situations like this for what they are.

12   Policy changes can affect my ability to have the income

13   this year that I had last year.   I liked last year's

14   income of 600,000 and whatever better.   But if someone

15   says to me, we've got a new policy; we're going to be

16   rotating experts, I may not love that policy.   But I

17   don't necessarily become resentful and so on.

18        Q     So you wouldn't opine in that situation the

19   witness would be biased just because that happened to

20   them?

21        A     Absolutely not.   The evidence of bias, as I

22   see it, is in his own statements, not just in the fact

23   pattern.   I would not presume that if his income was

24   substantially decreased that that in and of itself

25   would necessarily create in him a bias against your
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1    office.   But when he used phrases as emotionally toned

2    as "taking food out of my mouth," the reference to

3    witch hunts, those are clear expressions of resentment.

4         Q     On the other hand, would you agree with the

5    proposition that after you look at these other

6    statements: arbitrary, capricious, the witches, and the

7    burning and then when you look at those things which

8    you've testified as evidence of bias but then you look

9    at it and add to it the loss of money, does that in

10   your view make the bias either clearer or provide an

11   explanation for the bias?   In other words, I guess what

12   I'm saying is that if the money is not an issue in and

13   of itself, after you have this other stuff, does the

14   money look a little differently?

15        A     I don't see the money as relevant because to

16   me the only issue that's relevant is his clear

17   expressions of resentment towards your office.   It

18   wouldn't matter to me what the basis was for that

19   resentment.   And again, it wouldn't even matter to me

20   whether the resentment was of a type that other people

21   would say, oh, he has a right to that resentment.     It

22   doesn't matter.   All that matters is that once the

23   resentment is in place, it affects his objectivity so

24   that the facts that allegedly underlie the development

25   of that resentment don't seem pertinent to me.   All
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1    that's pertinent is the resentment.

2         Q    In the training of a forensic psychologist,

3    does that training stress the importance of

4    objectivity?

5         A    I'm having a problem with that, but I would

6    have to say no.

7         Q    Do the ethical codes and ethical rules for

8    psychologists promote or advocate that there should be

9    objectivity in evaluations?

10        A    Yes.    In particular, there is one specific

11   ethical standard that addresses the issue of conflict

12   of interest.

13        Q    And basically, the standard that addresses

14   the standard, what does it actually say?

15        A    If I may just read directly?

16        Q    Yes.

17        A    From Standard 3.06 which is called Conflict

18   of Interest:    Psychologists refrain from taking on a

19   professional role when personal, scientific,

20   professional, legal, financial interests, or

21   relationships could reasonably be expected to impair

22   their objectivity, competence, or effectiveness in

23   performing their functions as psychologists.

24             I'll stop there.    There's more to it, but the

25   other part isn't applicable.    What's applicable here is
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1    that there is, in essence, an interpersonal

2    relationship, not just a work relationship, an

3    interpersonal relationship between Dr. Brannon and the

4    members of the staff, the professional staff, of the

5    Public Defender's Office.

6              And that is a relationship which is now

7    characterized by friction, acknowledged openly by

8    Dr. Brannon, and that relationship now interferes with

9    his ability to maintain objectivity when he is required

10   by the nature of his assigned task to evaluate people

11   that are represented by your office.

12        Q    Doctor, in your study of bias and evaluators,

13   have you run across either cases or decisions by the

14   courts or situations where basically the evaluator may

15   be prevented from actually testifying because of the

16   bias?

17        A    I'm not certain how to answer that because in

18   decisions that I've read where evaluators have been

19   excluded, usually the rationale for the exclusion is

20   usually phrased more broadly.   I certainly could give

21   you a specific judicial decision in which reference is

22   made in the judicial decision discarding the

23   evaluator's report to the disdain that is manifested by

24   the evaluator for one of the litigants in the

25   evaluator's own notes.
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1         Q    And what case decision was that?

2         A    I can give you the full cite, but the case

3    was Frankel vs. Frankel in New York.    It was a

4    matrimonial case.    The judge hearing the case was the

5    same judge who had appointed the evaluator, and the

6    evaluator's report was subsequently, I guess, ignored

7    by the judge.

8              And in a rather lengthy opinion, the judge

9    explained her reasons for not being guided by the

10   opinions that were expressed to the judge by her own

11   appointed evaluator.    And among those reasons was the

12   disdain that the evaluator expressed toward one of the

13   litigants.

14        Q    So in other words, the fact finder in that

15   case, the judge, basically in the court's finding

16   indicated that it totally disregarded that report for

17   that reason?

18        A    Yes.

19        Q    And, of course, as a forensic psychologist,

20   you're familiar in criminal cases that the jury is the

21   fact finder?

22        A    Yes.

23        Q    So basically, if, in fact, that judge in

24   Frankel vs. Frankel's decision were to be followed in a

25   jury case, that report then would be kept from the
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1    jury.    Would that be a fair statement?

2         A      That's correct.

3         Q      You indicated that you had reviewed

4    approximately 2,000 different evaluations?

5         A      Yes.

6         Q      For bias?

7         A      Yes -- no, no, no.

8         Q      For --

9         A      Not for bias.

10        Q      Not for bias but just for?

11        A      In general.

12        Q      You've reviewed them in general for their --

13        A      Yes.

14        Q      Okay.    And on the issue of bias from what

15   we've looked at, do you have an opinion regarding how

16   the current situation between the evaluator,

17   Dr. Brannon, and the Public Defender's Office might

18   rank in some of those that you see?

19        A      No.

20        Q      Are you able to do that?

21        A      No.    I think it's sufficient to say that his

22   own statements make clear his resentment of the Public

23   Defender's Office.      Where it ranks with regard to

24   similar biases expressed by other evaluators doesn't

25   seem to me to be pertinent.      And I have to acknowledge
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1    that if I were to do that, it would be speculative.

2         Q    Okay.   I don't think I have anything further.

3    Is there anything else, Doctor, that you think might be

4    important that we didn't ask you here today regarding

5    the materials that you reviewed about the current

6    dispute between the Public Defender's Office and

7    Dr. Brannon regarding his bias and the way he

8    approaches the office?

9         A    Not that I can think of.   I think the only

10   things left are for me to get to you presumably by

11   e-mail the full case citation for Frankel and perhaps

12   anything else that I may have made reference to.

13             The one other thing that I would say -- but I

14   don't know whether this is helpful or not only because

15   it's a psychologist commenting on a legal decision --

16   is that I view the United States Supreme Court's

17   decision in the Caperton case as being very significant

18   and very pertinent to the issues here.   Because the

19   essence of the finding of the Supreme Court was that

20   individuals -- including in this case trained

21   individuals, a judge -- do not have the capacity to

22   evaluate the existence of bias in themselves.

23             And, in essence, what the Supreme Court ruled

24   in the Caperton case was that the judge who had refused

25   to recuse himself had undoubtedly tried as best he
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1    could to evaluate himself with respect to whether or

2    not he was biased and presumably was sincere when he

3    concluded that he wasn't biased.   But the court

4    basically said, but we disagree.

5              And I think that's important because the

6    issue here should not rest on any assurances that

7    Dr. Brannon might offer concerning being free of bias.

8    The Supreme Court is essentially reflecting what I

9    believe the field of psychology would say which is it's

10   not humanly possible to engage in the kind of

11   self-examination that would enable you to then

12   pronounce with objectivity I am or I am not biased.

13        Q    As a result in the event that there was an

14   objection that was raised to an evaluator based upon a

15   bias by others, you believe that the proper thing for

16   them to do would be to withdraw and not get involved in

17   cases with that party?

18        A    Yes.

19             MR. WILLS:   Nothing further.

20             (The taking of the statement was concluded at

21        2:39 p.m.)

22                             * * *



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                     CERTIFICATE OF OATH



       I, Crystal Storms, Florida Professional

Reporter, Notary Public, State of Florida, certify that

DAVID A. MARTINDALE, PH.D., ABPP, personally appeared

before me on September 3, 2010, and was duly sworn.

       Signed this 6th day of September, 2010.

                     Crystal Storms
             Florida Professional Reporter
            Notary Public, State of Florida
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                   CERTIFICATE OF REPORTER



       I, Crystal Storms, Florida Professional

Reporter, do hereby certify that I was authorized to

and did stenographically report the statement of

DAVID A. MARTINDALE, PH.D., ABPP; and that the

foregoing transcript is a true record of my

stenographic notes.

       I FURTHER CERTIFY that I am not a relative,

employee, or attorney, or counsel of any of the

parties, nor am I a relative or employee of any of the

parties' attorney or counsel connected with the action,

nor am I financially interested in the action.

       Dated this 6th of September, 2010, at

Palm Harbor, Pinellas County, Florida.

                     Crystal Storms
             Florida Professional Reporter
Morgan J. Morey & Associates

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