Doctor who evaluated Henning at center of Yates controversy

Mark Horner: Well, first of all, let’s look at the big picture. What does this decision in the Yates case mean, not just to the case itself, perhaps? What’s the bigger picture here?

Gary Mitchell: The bigger picture for any attorney involved in the criminal justice system, whether in Texas or throughout the nation, is that you finally have an appellate court stating unequivocally: we are not going to tolerate an expert witness on behalf of the state lying in an American courtroom and allowing a person to be sentenced to prison. So that’s a far more important development and a far-reaching development than simply the high-profile nature of this case.

Mark Horner: Now, to fully get the impact of that statement, for those who may not be familiar from your point of view on all of this — is it your belief that many expert witnesses actually lie in court?

Gary Mitchell: I know for a fact that on more than one occasion, state’s experts or experts that they use frequently lie. And the fact of the matter is the appellate courts have not seen fit — most appellate courts have not seen fit — to reverse a conviction based simply on that fact. Most of us who have practiced within the criminal justice system, whether in New Mexico or other states, know full well: the state in New Mexico or that particular state depends upon certain experts to make their cases. And the credibility of some of those experts is very poor. We finally have an appellate court saying we’re not going to tolerate it anymore. I mean, the man admitted that he lied. It was obviously false. I’ve read some about that case. Not only did he lie about it on the stand, not only did they attempt to utilize that to say that was a reason why she did these acts, but then the district attorney used it in his closing argument. So it was one of those situations in which you built part of the case upon a lie.

Mark Horner: To help further put this development in perspective, are you aware of any states coming back after a case has resolved and saying an expert lied?

Gary Mitchell: Yes, I am. Martha Stewart has the same problem. In her case, where the expert [was] admittedly lying — we’ve had a number of cases out of West Texas in which they had a pathologist over there for a number of years. He held himself out as a forensic pathologist who had lied in a large number of cases. We had the whole FBI laboratory incidents with certain FBI agents there that were less than truthful or honest or forthright about their examinations in courtrooms. And we’ve had that happen in other cases.

Mark Horner: If I may interject — if states have come back and made similar determinations regarding other cases in the past, what makes this case a landmark event?

Gary Mitchell: Well, one, it’s a high-profile case. It gets lots of attention. Two, it is a situation in which we have a psychologist who gets on the stand and makes a false statement. And finally, psychologists are generally given pretty subjective testimony. That’s the great difficulty we have with psychologists. And in this instance, the major difference is that it’s done on appeal. It’s not done with the defense attorney having to go out, track down another expert, file writs many, many years later to show that people lied. It’s done with an appellate court for the first time on a direct appeal — meaning the first time it comes up, they’re aware of it, and they instantly say, hold it. This is an unfair trial. We’re not going to tolerate it. She’s going to get a new trial. That’s a huge, huge difference.

Mark Horner: Okay. In Linda’s case, Park Dietz did not testify. He did make himself — or did notify the prosecution that he would be available if needed to testify.

Gary Mitchell: Yes. Had there been an insanity or diminished-capacity defense, the state intended to call him as their expert in Linda Henning’s case. I thought what Park Dietz had done in that case, frankly, was a bunch of hogwash.

Mark Horner: Well, he interviewed her, as I recall. I’m cheating — I’m reading my own book here. It was the third week of January 2001. And at the end of the day, he came back and said that she was both sane and a narcissist. And I’m quoting here what he told on the History Channel program Dead Reckoning, quote: “I think it’s not an unreasonable way to look at this case is Hossencofft having brainwashed Henning.”

Gary Mitchell: Well, and that’s what I recall that he wrote and said as well. But his techniques and the way he did that, I thought, left a lot to be desired. If that had been our defense in Linda Henning’s case, we’d obviously have had some major issues with whether he was a credible witness or not.

Mark Horner: Well, you might have the benefit of a court like the one in Texas looking back at it and maybe throwing out a conviction.

Gary Mitchell: Well, it would have been nice if most appellate courts would do that. It’s not been my experience that they do that very often. It takes a real courageous court to do that because they catch so [much heat], especially in a high-profile case. People talk about high-profile cases and think that people involved in them get a better break in a courtroom. The truth of the matter is they don’t, because most judges are loath to take the public ridicule for having reversed a case such as the case in Texas. So we have the same problem. It’s a difficult deal. It takes courage to do it — lots of courage.

Mark Horner: You’ve known about the Dietz issue regarding the Yates case for some time.

Gary Mitchell: I’d heard about it, yes.

Mark Horner: Prior to your learning of that situation, did you already — you were obviously already aware of Park Dietz, quite obviously — did you already have issues regarding his credibility?

Gary Mitchell: I did, simply because you learn, if you’ve been in this business for a number of years, there are certain experts that you see come in courts all the time and you can always count on them saying certain things. They either take the side of the state and sometimes the side of the defense. They’re not neutral experts, and that’s one of the great problems we have with the criminal justice system — that there are experts out there for hire that will say whatever they need to say to assist the particular person they’re helping. You hope you don’t have those kind of experts because we rely so heavily on them. But the fact of the matter is we do, and we do very little about them.

Mark Horner: Finally, for those who aren’t well acquainted with Linda Henning’s case — to be clear, this development in Texas doesn’t really offer any additional optimism for the appeal in Linda Henning’s case.

Gary Mitchell: The appeal in Linda Henning’s case wasn’t based upon an insanity defense. In addition, I’m confident Linda Henning’s case is going to get reversed, as I said right after the trial, and I’ve been confident throughout. I’ve read the briefs in this case. I’m confident that our court is not going to tolerate what happened in Linda Henning’s case. The jurors had a sense of that as well when they said we had to follow the law but we felt the law was wrong.

Mark Horner: Well, we gave the wrong law to the jury. We used the wrong law. What law should we have used?

Gary Mitchell: It shouldn’t have been a death-penalty case to begin with. We shouldn’t have had to eliminate jurors because they were opposed to the death penalty, because it did not qualify as a death-penalty case from day one. We warned the judge about that. In addition, there were some major evidentiary issues that came up in which evidence was admitted that shouldn’t have been admitted. I’m quite confident. She has an excellent lawyer on appeal, and I’m confident that Linda is going to get a new trial, get her conviction reversed, and hopefully a new trial, and by that time hopefully the state will see the error of their ways and not prosecute her again. She’ll finally get the freedom she deserves.

Mark Horner: Gary, have you heard anything about considerations of moving Henning from Grants to Texas?

Gary Mitchell: I haven’t heard anything about that. I have no control over that. That’s within the Department of Corrections, but I’ve heard nothing.

Mark Horner: Do you have any idea how she’s doing today?

Gary Mitchell: Well, from what I gather from people that call me and let me know how she’s doing, she’s doing as well as can be expected under the circumstances. She’s a survivor.

Mark Horner: You don’t see this appeal process in New Mexico regarding Henning taking longer than any other case?

Gary Mitchell: No. The classic clean-cut cases — they take one to three years. I don’t anticipate it taking any longer than that. It’s moving along rapidly. I know the attorneys have been working hard and they’ve done excellent [work]. Her appellate attorney’s done excellent work because I’ve had an opportunity to review those briefs.

Mark Horner: Okay. Super. Anything else you’d like to add?

Gary Mitchell: No. Thank you for calling me, Mark. I’m glad that you had the foresight to spot that there was a more critical issue to Andrea Yates than simply the fact that this was fodder for talk shows.