PART 35 (51 page)

“Is that on account of the passage of six days before the seizure, Doctor?”

“Partly on account of the passage of time, but also, on account of other factors.”

“What other factors, Doctor?”

“Well, primarily, during withdrawal from heroin, patients just don't have convulsions.”

“You have never seen a patient who was addicted to heroin having convulsions in a stage of withdrawal?”

“Pure heroin addiction, by itself, doesn't produce convulsions.”

“Well, you've indicated several years of experience in connection with drug addiction, Doctor. Would you describe the typical heroin addict when he is going through withdrawal? What happens to him?”

“Objection, Your Honor,” said Sandro, “unless there is a qualification as to the extent of the habit.”

“I'll ask the doctor to predicate his answer upon the habit described in the hypothetical question,” Judge Porta said.

“This habit we're speaking about, I believe, is a six-dollar-a-day habit?” the doctor asked.

“Yes,” said the judge.

“Well, that's not considered a very large habit. Some of the patients refer to it as a Pepsi-Cola or a Mickey Mouse habit. With a thing like that, the patients have, first, the usual restlessness and nervousness. Their eyes tear, they sweat, their pupils may be dilated. If they have a rough time of it, they may have some abdominal cramps. With a habit of this size, there wouldn't be severe diarrhea or anything like that. All this reaches its peak within forty-eight or seventy-two hours after withdrawal, and after seventy-two hours the patient would begin to recover.

“Now, six days later,” the doctor continued, “one might expect him to have insomnia—that's a very persistent complaint. Many of them complain for weeks that they can't sleep. Some of them say that they have a poor appetite, and they may be a bit restless. But there wouldn't be anything dramatic, like a seizure, six days later.”

“If the addict actually had a larger habit, in your opinion, would that make a difference in the withdrawal symptoms?” Ellis asked.

“Not very much. With the quality of heroin in New York City today, it is very rare that one sees more than grade-two symptoms.”

“Grade two, Doctor?”

“Withdrawal symptoms are classified in four grades, one through four, four being the most dramatic. In grade one, watering of the eyes appears, as well as sniffling nose. That's about all. In grade two, you can usually see restlessness, perhaps vomiting, together with the watering eyes and the sniffling. In grade three, there is diarrhea and insomnia in addition. In grade four, there may also be an occasional involuntary movement of the extremities. That's where the expression ‘kicking the habit' comes from. However, all the rolling on the floor and the climbing of the walls that is popular on television and the like is purely the psychological reaction, not the medical reaction. In other words, it looks good, or it seems that it looks good. However, in New York, I have never seen anyone, in thousands of cases, have more than grade-two withdrawal symptoms, even with the heaviest habits.”

“Is there anything else besides addiction, besides a beating or brain damage, that might cause a clonic seizure, Doctor?”

“Well, something similar, but not exactly, would be like hysteria or hyperventilation syndrome.”

“Hysteria? Can you explain how this happens, Doctor?” said Ellis voraciously.

“Well, hysteria is a mental condition, a mental disorder, and there is a form of it which is called conversion hysteria, in which the patient can show almost any kind of physical changes. Some patients have paralysis, some patients have twitches, whatever you like. It's not based on anything physical. It's based on the patient's idea of what he thinks he should have and, a patient, let's say, who had had clonic seizures or knew what clonic contractions were, might produce that kind of a picture by hysteria.”

“And that could be faked or simulated, you say?”

“Well, that's not simulated. If it's hysteria, then it really isn't simulated. The patient is not completely in control of what he's doing.”

“But it's not really a clonic seizure resulting from anything except the patient's imagination?”

“That's about it.”

“I have no further questions, Doctor. Thank you.”

“Have you any other questions?” the judge asked Sandro.

“Yes, Your Honor.”

“Doctor, in order for a patient to have a seizure from hysteria, he imagines the symptoms he should have, and his mind thereafter causes him almost to attain them?”

“Yes, it's something like that.”

“Well, Doctor, let me ask you this. Once a patient is or becomes unconscious—clinically, objectively unconscious—can a hysterical convulsion exist thereafter?”

“No. It's not really a medical symptom. Without his mind working to maintain the symptom, the symptom ceases.”

“In other words, an unconscious man would cease to have a hysterical seizure?”

“That's right.”

“And if it continued after that, you'd discount the hysteria and consider it a real, objective, medical seizure?”

“I'd have to.”

“No further questions.”

“No questions,” said Ellis.

“We've got him grabbing for the ropes now,” Sam whispered. “You knocked out the only thing he could blame the seizure on.”

Dr. Fulton took the stand and was sworn in as a witness. He gave a long list of qualifications, including special consultation work for the district attorney of Kings County. Sandro then posed his hypothetical question again, asking now if Dr. Fulton had an opinion on whether the alleged police beating could have been the competent producing cause of the seizure.

“Yes. In my opinion, the described beating and the hitting of the head against the lockers could have been the cause of the convulsive seizure which the patient had six days later.”

Sandro asked the doctor to explain his opinion. The doctor told what a seizure was, how it emanated from the brain, and how the hitting of Alvarado's head against the locker could have caused a convulsive reaction.

“Doctor, can an individual who is unconscious simulate a clonic seizure, with Cheyne-Stokes breathing, tachycardia, rapid pulse of one twenty per minute, rolled eyes, acute or exquisite tenderness in the epigastrium, and guarding and rigidity in the abdominal area?”

“A patient who is unconscious cannot simulate anything.”

“Thank you, Doctor. I have no further questions.”

Ellis stood and walked to the jury box.

“Let me ask you, Dr. Fulton, assuming that this person with whom we are concerned in the hypothetical question did not sustain the blows to the epigastrium and the blows to the head as recited in the hypothetical question, would the answer that you gave be different?”

“Why, of course. It would have to be.”

“And would you then have to look for some other reason to explain this apparent clonic seizure that was included in the hypothetical question?”

“I would say so, yes.”

“Is there any question about it?”

“No, no, I would have to try to find the cause of any clonic seizure occurring in a patient without a history of a head injury.”

“Now, Doctor, would you be good enough to tell us in your medical opinion, with reasonable certainty, what other causes would there be for an apparent clonic seizure as described in the hypothetical question.”

“Well, there are multiple causes of clonic seizures. Tumors or neoplasms of the brain can cause seizures. Second, infections, inflammation of the brain, such as encephalitis or meningitis. A third cause is trauma, or injuries to the brain. A fourth is toxic or metabolic causes for seizures. These can be toxic reactions to illnesses, such as diphtheria or some forms of polio, or toxic reactions to drugs, or the withdrawal symptoms from certain types of drugs.”

“You say, Doctor, a clonic seizure can be caused by any of these things, including drugs?”

“Yes, it can.”

“And, Doctor, your speciality is the brain and its function, or dysfunction, not narcotics, isn't that right?”

“That's correct.”

“No further questions.”

Sandro rose.

“Doctor, you mentioned that addiction can cause seizures in some cases. Is that possibility significant in this case?”

“Well, convulsion is not something that occurs from withdrawal from heroin under any condition. That would seem to eliminate this convulsion right there. Other drugs could produce seizure, barbiturates for instance. However, the withdrawal seizure would occur as soon as the blood level of the drug drops to the level where the brain cortex becomes irritated, and this usually takes place in less than forty-eight to seventy-two hours. So that most withdrawal symptoms, as far as seizures are concerned, take place within the first day, second day, or third day of withdrawal. A seizure that occurs six days after withdrawal would not be caused by the withdrawal.”

“Are you saying, Doctor, that this clonic seizure in your opinion couldn't have occurred from any narcotic addiction?”

“From the information you have given me, yes.”

“Doctor, from the facts given to you either by the district attorney or myself, can you point to any other cause for the clonic seizure diagnosed July ninth, 1967, other than a beating by the police on July fourth, 1967?”

“Objection, Your Honor.”

“I will allow it in that form. Can you, Doctor, attribute this seizure to any other cause or causes?”

“No. I have stated that the beating described could be the cause of a seizure occurring six days later. I haven't been given any other facts to make me exclude this in favor of any other cause for the seizure. The beating, therefore, is the most logical cause of the seizure.”

“Your witness.” Sandro sat at the counsel table.

Ellis had no further questions.

Sam rested Alvarado's case on the voir dire.

“Members of the jury,” the judge said, “we'll break now for lunch. Don't discuss the case.”

“Sandro, you really put Ellis in a bind. If he can't dig up a doctor who can eliminate that beating as a possible cause, he'd better fold his tent,” said Sam.

“The judge didn't buy it on the Huntley hearing, and he's obviously going to leave it to the jury to decide here,” Sandro replied. “Maybe the jury won't buy it either.”

“Well, you got it in here, even if it just turns out to be an escape route for appeal.”

After lunch, Ellis started calling people's witnesses on the voir dire. He began by recalling Lieutenant Garcia, who emphatically denied that he had ever struck, beat, punched, kicked, or hit Alvarado on the early morning of July 4th, 1967. He also denied ever seeing anyone else abuse Alvarado. Ellis had no further questions.

Sam stood and walked toward the lieutenant. Garcia testified that he was alone in his office at 11
P.M.
, July 3rd, 1967, when Hernandez was returned from Brooklyn and placed in the adjoining office. He said he never left his room to see Alvarado or to inquire about the interrogation, nor did anyone inform him of its progress until the detectives brought Alvarado down after a statement had allegedly been obtained.

Lieutenant Garcia said, in answer to Sam's question, that he had never had anyone interrogated in that third-floor locker room other than the two defendants in this case. Sam had no further questions.

Ellis called Detective Mullaly to the stand. Calm as ever, Mullaly watched Ellis walk toward him.

“He must have rehearsed in front of a mirror for months,” said Sam, looking up from his notes momentarily.

Just as before, when Hernandez was under discussion, Mullaly testified that he had not laid a hand on Alvarado, nor had he seen anyone else do so. Ellis asked no further questions.

In answer to Sam's cross-examination, Mullaly said that he had never before testified in a homicide case, nor had he ever been in charge of one. He said that he had not been under any particular pressure the night of July 3rd to 4th when he was interrogating the prisoners, despite the fact that this was the death of a policeman, and despite the fact that the commissioner of police and the chief of detectives and a great many other superior officers were in the station house.

Mullaly admitted that he was the main interviewer of Alvarado. Johnson and Tracy, according to Mullaly, only asked an occasional question.

Mullaly further said that from the beginning of the interview, at approximately 1:40
A.M.
, July 4th, 1967, until it was over at 2:15
A.M.
, Alvarado was asked no questions concerning his guilt or his participation in the crime which resulted in the death of Lauria. Rather, Mullaly testified, Alvarado was asked only questions like where he had been that day and whether he knew Ramon Hernandez. After twice being confronted with Hernandez, with whom he exchanged shouts and curses in Spanish, Alvarado began to tell the entire story.

Mullaly testified further that at no time during the interview did he send word down to his superiors about any progress they were making. Sam had no further questions.

Siakos stood and inquired of Mullaly about the Spanish words that Hernandez used. Mullaly said, although he knew only a little Spanish, that they were curse words. Mullaly couldn't remember the actual words used. Siakos had no further questions.

Ellis called Detective Jablonsky to the stand. Jablonsky denied hitting or insulting Alvarado or witnessing such actions. Ellis had no further questions.

“Officer, Alvarado was beaten in that third-floor locker room by your brother officers, wasn't he?” Sam asked suddenly, to throw Jablonsky off balance.

“No, sir,” he answered. He was perplexed by the sudden attack.

“Assaulting any prisoner is, like any other assault on a private citizen, a crime?”

“Yes, sir.”

“If you had seen a fellow officer strike Alvarado, would you have arrested him?”