Blackout

Just finished reading John Lescroart's Betrayal (at 1 a.m. this morning, but compulsive reading is another subject for another day). In it, a defendant has no memory for the time of the crime. The defense attorney's handling of this problem is a bit muddled.

He hopes to get in Posttraumatic Stress Syndrome (PTSD) as the explanation for the gap in memory. In a preliminary hearing, a psychiatrist with expertise in PTSD testifies that flashback-related blackouts last only a few minutes (pp. 211-217). My quibble with this is that these experiences are not technically "blackouts" at all, but dissociative episodes. The person is fully conscious, but not really present because they are re-experiencing events from another time and another place. Most likely, they will remember the content of the flashback, but not necessarily what they said or did, or what other people said or did, while they were having it. It is in that sense that it is a blackout, in that the information they forgot was never recorded in the first place, and this is why it cannot be recalled.

During the trial, the evidence proffered is that an old head injury is the cause (pp. 274-279). Unfortunately for the defense, a neurologist testifies that brain injuries do not account for extended periods of unconsciousness (after the initial trauma, that is) and the defendant has four days to account for. Not to mention that his blood alcohol at the time of his arrest shows clearly that he'd been wide awake and drinking like a fish for goodly portions of the days in question. Here the problem is that, once again, "blackout" as a term is being used by the attorney to mean one thing, and by the expert to mean another.

The defense attorney recognizes this little problem in mid-testimony and gives up on this witness, when another question or two would have established that "blackout" is not synonymous with "unconsciousness." Indeed, testimony from a VA staffer is available to show that, while still in the hospital, the defendant had experienced an episode during which he was fully awake but thought he was still in Iraq: He remembered nothing of this afterward (pp. 226-228).

And then I must have had some kind of blackout, because I started this blog entry over two months ago and never published it. I found it when I decided to write a little scribble on memory in general, and was checking to see if I'd done that already!

I have no idea any more how I intended to finish it, so here it is, as is. Scary.

Courtroom Antics

I have two cases going to court in the next couple of weeks, one civil and one criminal. And it's got me to thinking about past forays into the justice system and how weird it can get.

Used to be, we were the only private practice up here for miles around, and we had folks drive from as far north as Dalton and Copper Hill for therapy. As a result, we were occasionally in courtrooms just about anywhere in the Blue Ridge circuit. Judges and attorneys varied wildly in quality. On one memorable occasion, I drove all the way up to Calhoun to testify in a divorce case in which I had already warned both parties that I had nothing to say that would be good for either of them. But one of them subpoenaed me anyway, so off I went at the crack of dawn to the wilds of north Georgia. No sooner had I been sworn in than the judge asked me if I wanted to waive privilege. I said "No," he excused me, and that was that.

Now I am no lawyer, but it is my understanding that, in the first place, the privilege is not mine to waive. It is the client's, and the soon-to-be-ex-wife, by subpoenaing me, had already waived hers. (Not to mention that, under Georgia law at the time, communications with me weren't privileged in the first place.) But whatever. I didn't want to be there so this suited me just fine.

Even some counties close in to Atlanta were pretty back-country when I started my practice. I was in Dallas one day for a child sexual abuse case. This Court liked to assemble all the parties, including witnesses, before beginning trial and was calling roll. The child victim was female, and was accompanied by her mother. The mother had brought her divorce attorney, who was female, as there was also a modification of custody action pending. I'm a woman, of course, as was the pediatrician who was going to testify to some physical evidence. A female police officer was there to testify as well. At about this point in his roll call, the judge, clearly exasperated, turned to the (female) ADA and asked, "Is everybody in this case female?" to which the ADA, straight-faced, replied, "No, Your Honor, the Defendant is a man." The courtroom broke up. Even the bailiff was laughing.