DIRECT EXAMINATION by Mr. Norman:
Q Dr. Levy, what do these court appointments embrace that you receive?
A They embrace a variety of appointments. They have to do with determining an individual's competence to stand trial, and an individual's responsibility in relationship to certain type of criminal offenses. They also include working with Public Defenders and Defense Attorneys around the area of diminished responsibility. They involve determining whether an individual is a narcotic addict or mentally disordered sex offender. Those are the major ones. . . .
Q Doctor, in your career approximately how many court appointments would you estimate that you've received to make mental examinations and evaluations?
A I would estimate about 6,000. . . .
Q Doctor, in addition to the court appointments that you have had, over your many years experience you've certainly had occasion to make mental examinations and evaluations, haven't you?
Q Doctor, could you in any way estimate how many persons you've seen in your career and made mental examinations and evaluations thereupon based upon your background and your education and your training and your skill and experience?
A Oh, it must be 50 thousand or more.
When I was in the service it would be something like 20 a day, and over the last ten years now the unit I'm on we admit between 30 and 50 people a month.
Q When you say the unit that you are on, are you referring to your connection with the Langely-Porter Neuropsychiatric Clinic?
Q Doctor, have you had occasion to testify in courts of law before this time and give your opinions with respect to persons' mental states and what your evaluations of the person's mental states may be?
A Yes, I have.
Q Doctor, could you venture an estimate how many times you have done that approximately?
A Probably 400 to 500 times. . . .
Q Given most cases, your appointment is by the Court; do you testify necessarily for one side or for the other?
A I would say over the years it probably would be about equal.
Q Doctor, have you testified in cases wherein I appeared as the prosecutor?
A Yes, I have.
Q Approximately how many times have you testified in that connection?
A Oh, maybe six or seven times. . . .
Q Would you estimate or do you have any estimate about how many times you have testified for the defense wherein I was the prosecutor?
A I would estimate over half the time.
Q Doctor, on or about the 27th day of November, last year, did you have occasion to be called upon by somebody to interview the defendant in this case, Mr. Daniel White? . . .
A Well, I was not in the office when the first calls came, which I believe were around noontime, and the calls were from the District Attorney's Office, yourself, and a couple of others from the office, and I was asked if I could come in and interview Mr. White. . . .
Q Tell the members of the jury what was explained to you?
A The purpose was to carry out a psychiatric assessment as close to the time of the arrest as possible, to get an assessment as to evidence of mental illness or lack of such, and to assess what might come up at a later time in terms of a psychiatric defense.
Q Doctor, psychiatric defenses are rather common in cases where the charge is murder?
A They are quite common.
Q Doctor, is there any opinion based upon your experience of many years, any value or any significant value of having a psychiatric examination or consultation of a subject near the time to the occurrence?
A It would. In my opinion, the closest you can get to the time of occurrence, the better you can make that particular assessment as to the mental status which existed at the time of the offense.
Q Doctor, would you elaborate upon that a little bit?
A Yes, as it's rare that I have had the chance to make an assessment that close to the time, and usually it's a matter of weeks, if not months later, and when you see a person early the tendency is for a secondary type of fabrication not to develop, and that you have a chance to see a more pure form of what the individual's status is.
When I have been unable to see an individual that closely to the time of the offense, then it requires having to talk or get information from other people about what they observed, and I think it's always better when you can have the observation firsthand, but most of the time it's necessary to rely on what other people tell you.
Q Doctor, oftentimes is it not a fact that some people tend to rationalize certain types of behavior, and as time goes by, the accuracy of that type of behavior tends to diminish, doesn't it?
A It's a normal state of events, yes.
Q Doctor, did you have occasion at some time on the 27th of November, to obtain some information, some of the background concerning the events having taken place earlier that day, at approximately 11:00 o'clock a.m.?
A Yes, I did.
Q Would you tell the members of the jury what materials that was which you were furnished?
A I was furnished with the audio tape that was made by Mr. White, and I also talked with you about the events. . . .
Q Could you tell us approximately what time of the day on November 27th this was?
A We arrived up at the county jail around 7:00 p.m. . . .
Q Where was it, and under what circumstances was it that you met Mr. White?
A When he was brought out into one of the interview rooms and met briefly with his attorneys, and then they came out, and I went in.
I was introduced to him, at which point they left, and the two of us then stayed in the room alone. . .I told him who I was, and who I was representing, the reason I was there, and asked him what his attorney had told him.
I then proceeded to read the Miranda rights warning that had been provided to me, and asked him if he understood and on the basis of understanding this, he wished to proceed and talk with me.
Q Doctor, when you had introduced yourself to him, you had this brief conversation, can you relate to us, the best you can recall, what the initial conversation consisted of, and embraced?
A The initial conversation consisted in my asking him or telling him that I wanted some kind of background of what had been going on over the several days preceding the incident, and we more or less Just arbitrarily chose the preceding Thursday as the point of starting.
Q That preceding Thursday would have been Thanksgiving Day?
Q At that time, initially, what were your impressions of Mr. White, that is, did he appear to be alert, did he appear to be oriented to time and place, what he was there for?
A Yes, he was completely oriented. His intellectual functions were quite intact.
Q Did you perceive anything that would suggest to you, initially, that there was any mental disorder existing?
A No, there was nothing at all suggesting mental disorder.
Q Did he appear to maintain, for example, good eye contact?
A Yes, he did. . . .
Q Was there anything, Doctor, for example, from a handshake, that you might gather, which is suggestive of any symptomatology of the subject?
A Yes, you could assess a level of anxiety, by an individual having a cold, clammy hand.
You could determine severe depression or disability by a very weak handshake. Some individuals who tend to be aggressive and authoritarian try to break your hand. There are various things that might be gotten from a handshake.
Q In regards to the handshake there, was there anything that suggested to you any possibility at that time of depression?
Q Doctor, have you seen persons who are depressed before?
A Quite frequently.
Q It's a common occurrence, isn't it?
A Yes, it is.
Q Doctor, was there anything that suggested to you any anxiety?
A No, he didn't display any anxiety.
Q Would you tell the members of the jury how long that interview took all together?
A It was somewhat beyond two hours, I think less than two-and-a-half hours.
Q Would you please favor us, Dr. Levy, if you can, with the details of the interview had between you and Mr. Daniel White? . . .
A Well, as I said, we began with Thanksgiving Day, as to what had transpired, and he told me that on that particular day he had worked around the house and then he and his wife and his son had gone to the sister's home in South San Francisco for Thanksgiving dinner, and he was there from about 3:00 until 7:00 in the afternoon, and when they left, they went to Pacifica, where he visited his mother, and then he got home around 9:00 that night. He stated that he slept rather poorly that particular night.
The next morning he, which would be the Friday morning, he rose early, because his wife was leaving, and she left at 5:30 in the morning, and at which point he returned to bed and then got up again around 7:00 in the morning. He took his son to the babysitter and then he visited his attorney, and that was about 9:30 in the morning. He said that he was filing a restraining order to prevent the Mayor from appointing someone to the office that he had vacated, and that was the purpose of his consulting his attorney. He said that after meeting with the attorney, he and his administrative aide and another individual went out to lunch, around noontime, then they went back to the attorney's office shortly after 1:00 in the afternoon, and then they proceeded to City Hall, where they had a hearing in Judge Mayer's chamber. He said he was in the court from about 3:30 p.m. until about 5:00 p.m., and he reported the discussions that went on, how a technicality was being raised relating to the letter of resignation, the way it was submitted, and it was such that it should not have been considered legal, and in any way binding. He said the judge, however, made the ruling that his resignation was, indeed, binding, but that he also did set a court hearing, which would be held the following Friday, and it was his understanding that the City Attorney was then to notify the Mayor that he was not to fill the vacancy until the formal hearing occurred the following Friday. He said that after he left the courthouse, he went to the babysitter's house, where he had dinner, and then he and his son went home together. He got home around 9:00 p.m., put his son to bed a couple of hours later, watched television, then went to bed about 1:00 a.m.
He got up on Saturday at 5:00 a.m., fed his son, and then after doing some chores around the house, he took his son out for a walk, made some purchases at a grocery store, then he spent the rest of Saturday reading and watching football on television. He said that he got to bed about midnight, and again he slept quite poorly, and he said that the following day, Sunday, was pretty much the same on Saturday: that he got up with his son, around 5:00 a.m., then went back to bed, got up again around 7:30 a.m., again watched football, and did some cleaning up around the house. His wife arrived back home some time between 7:00 and 7:30 p.m. He said he didn't have much to say to her, and then about a half hour or so later, he went out by himself, was gone about 45 minutes. He said that he purchased a couple of paperbacks, then went on home, arriving home about 9:00 p.m. He said that his wife was in bed, awake, reading; that he talked very briefly, and then he gave his son a bottle, and then around 11:00 p.m. he tried to sleep on the couch. He said that because of his difficulty with sleep over the period of time he was not sleeping with his wife, because he didn't want to keep her awake.
Then about 11:00 p.m. he received a telephone call from a television newswoman who said that she had learned that the Mayor was going to appoint someone else to the seat that he was expecting on the Board of Supervisors, and she wanted to get his reaction to this. He reported to me he did not sleep the rest of the night; that he was awake all Sunday night.
He got up at 5:00 a.m. to take care of his son. He said his wife attempted to help out, but he was very curt with her. Then after feeding the son, he went back to bed, around 6:00, but he said that he was feeling very bad, head was hurting, and he wasn't able to sleep any further. Then he got up at 7:00 o'clock and around 8:00 his wife left, taking the son to the babysitter.
He said that he had planned on just staying home all day, to see how things worked out, he had no plans to go out, but he began brooding about what was going on, and said that he felt he was being cheated, and because of this idea decided he was going to go downtown, see the Mayor, find out why this was being done to him.
He said that around 10:15 that morning, his aide arrived to drive him to City Hall. He had called earlier to arrange that, and that before he left the house, he obtained his service revolver, which he said was always kept loaded, also took additional shells with him. Now, he was then driven to one of the main entrances to City Hall, where he was let off, but instead of entering through the main entrance he walked around, he said, to the McAllister Street entrance. Initially he was going to wait there until his aide arrived, because she had a key that would open the door, and he did not, but she didn't arrive promptly. He assumed that she probably went to get some gas for the car. So, rather than waiting, he proceeded to enter through an open window, then proceeded up to the Mayor's office. At that point I asked him why he didn't simply enter through the main door. He said it was because of the metal detector, that he didn't want to be found in possession of the gun, and because that would have been very embarrassing to the policeman, if the gun was found.
He said then that he went up to the Mayor's office and talked with the Mayor's secretary. He got there around 10:40 a.m. and had about a ten to fifteen minute wait. At that point the Mayor invited him into his office. He said that he was told directly that he was not going to be reappointed to his old position. He asked the reason, was told that a lot of people in his District did not want him as their Supervisor, and he said that he denied that, pointed out that the ones who were opposed to him did not represent the majority of the constituents, and was simply a very small minority working very hard against him. He told the Mayor that he simply didn't believe what the Mayor was saying, and he wanted him to be open, candid and honest. He said: There were only two of us present, and there is no reason why you can't be honest. He said that the Mayor persisted in telling him what he labeled as saying, "Lying, in not having support in his own district." He felt the Mayor saw he was getting quite upset, and so invited him into his back room to have a drink. He said at the time he was feeling somewhat in a fog, his head was hurting quite badly. He recalled the Mayor then asking him about his family, and what he was going to do now that he was no longer going to be a Supervisor, and his statement, which is a quote, is that "He kept saying things, but I couldn't make any sense out of it. He kept mentioning my family, but he didn't really care about them."
That is the quote.
He said then that he abruptly pulled out his gun and shot him, did not recall how many times he shot him, and he thought that he might have shot him even after he fell to the floor of the room. I asked him if he checked to see if the Mayor was alive or dead. He said he did not. He proceeded to leave the room, and said, as he was leaving through a back exit, he automatically emptied the shells from the gun and reloaded.
He told me at that point his plan was simply to exit from the City Hall, and as he was headed towards the stairway he said he passed some people, and somewhat to his surprise, there seemed to be no reaction to him. He kept on his way out, but then he saw Supervisor Milk's aide in the hall, and he said that at that point he recalled that Supervisor Milk was a-and again, in quotes, "the most devious Board member,” close quote.
He said he believed that Supervisor Milk had been very active behind the scenes in his not getting reinstated, and then he told me about a conversation he had overheard on November 16th, when he was in the City Attorney's office, and he said that Supervisor Milk was on the telephone to the City Attorney, and that he was making certain statements to the effect that Mr. White was not to be reappointed.
He said that he told Supervisor Milk that he wanted to talk with him, invited him into the office that he formerly had at City Hall, and after the-they were in the office he told him that he had heard reports that Milk was masterminding the deal, which is the way he expressed it.
Q In his words?
A That is the quote, "Masterminding the deal." He then asked him why he got involved, why he was blocking the reappointment, and he said that Supervisor Milk denied that he was involved, but that he had a "smirk or smile" on his face. He felt he wasn't getting any straight answers from him, and at that point he shot Supervisor Milk.
He stated that when he left that office he saw people running around. He asked his aide for the car keys, and then went to the car, and drove off, describing himself as being in somewhat of a dream or fog state.
He passed telephone booths at the Doggie Diner on Van Ness, stopped and called his wife, telling her to meet him at St. Mary's Cathedral. He then walked to the cathedral, where he prayed, and waited for his wife to arrive. He said that at the time it was hard for him to realize what he had done. When his wife arrived, he told her what had happened, and then the two of them walked to Northern Station, where he turned himself in, and he said that while he was walking the pressure in his head dissipated; that he was, at that point, feeling much better.
He decided to turn himself in, in this fashion, because he knew that the police would be very concerned about this type of offense, and he didn't want anything further to happen, any more shootings to occur, and so he set up his surrender to the police in this fashion.
I asked him later in the interview about his having the gun with him. He said that he had carried it on previous occasions, particularly when he had served on a committee that had some negative dealings with the White Panther group, and he had received some threats on that occasion. He said he did not carry the gun with him at all times, and when I asked him why he had it with him on this particular occasion, he was unable to come up with a reason.
I asked him if he had thought at all that there was any possibility he might carry out a homicide. He said that he didn't plan on murdering anyone; that his reason to go down to City Hall was to confront the Mayor, hopefully get some honest, straight answers from him.
I then asked him about any previous psychiatric problems. He denied any psychiatric history, any assessment by a psychiatrist or psychologist or mental health personnel. He also reported that he hadn't seen any type of physician for a long time, but he did admit to being quite upset because of the financial, family problems that had been going on since he became Supervisor, and had to give up his position with the fire department.
I then asked him to provide for me his past history, not that I expected anything, complete, in the amount of time, but to get some idea as to what things he would bring out, and also to assess his mental status as he is talking about it, and what a person tells you and how he tells it to you gives you information about the mental status.
So, he did cover his background. . . .
Q Doctor, during the course of this interview, among the things asked him, did you ask him whether he had any feelings about George Moscone, particularly with respect to the death of George Moscone? . . .
A I asked him how he felt about what had happened, not specifically as to whether he had any particular remorse about the actions of-actions themselves.
Q Did it appear to you, Doctor, that he had any remorse for the death of George Moscone?
A No. That was not at all obvious at the time I saw him.
Q Did it appear to you that he had any remorse for the death of Harvey Milk?
A No, not at that time.
Q At any time did he express any remorse or any concern about these occurrences?
A Yes, he did.
Q Will you explain that to us, please?
A He showed-the only change he really showed in his affect or mood during the interview was when he would make reference to his immediate family. At that point, he appeared close to tears, although he never actually cried during the interview, but he was obviously visibly upset with the consequences that it was having for his wife and his son.
Q During the entire interview, did he appear to be cooperative?
A Yes, I thought he was very cooperative.
Q Did you get the impression, Doctor, of his overall intelligence?
Q How would you regard that?
A I would regard it as bright-normal, certainly it was at least normal, very likely above.
Q Was his memory seemingly intact with the events which had occurred earlier?
A He appeared to have no problems with memory.
Q Would that include past and recent memory?
A Yes, it would.
Q Did you get any impression about his cognitive functions?
A Yes, I noticed no impairment of any of his cognitive, intellectual functions.
Q What do psychiatrists mean when they talk about cognitive intellectual functions?
A They are referring to the individual ability to deal with various types of intellectual ability, which would be the ability to talk in a logical fashion, to think in a logical way, to be able to deal with the language, with various types of reasonings, with the ability to perform on certain types of tasks, such as arithmetical tests, things of that sort.
Q Did it appear that his thought process was logical, orderly?
A Yes, his thinking was quite logical and orderly.
Q Did you, Doctor, get any impression about his personality or what sort of personality grouping he fell into? . . .
A He appeared to be a rather rigid sort of individual, that I would classify under the obsessive personality type. . . .You have the obsessive type individual who tends to be very orderly, meticulous, compulsive about time, sticking to one task at a time, wanting things to be orderly. They have a highly overdeveloped sense of responsibility and duty....
Q Doctor, up to that point, was there anything to suggest to you that the defendant was suffering from any mental disorder on the day of November 27th?
A There was nothing, in my interview, which would suggest to me there was any mental disorder.
Q Doctor, are you familiar with the term "depression?"
Q Doctor, what does depression mean to a psychiatrist?
A Depression means a number of things. Depression may be a symptom; it could be a normal reaction to a situation. It may be an abnormal reaction, in a form of neurosis, where the individual is developing depression out of some type of internal conflict, or it may be a psychotic state, of which there are three primary ones, where the individual has a gross departure from reality, contact, and when they suffer from a psychotic depression. . . .
Q Doctor, did you get the impression that the defendant was depressed at this time?
A I had the feeling that he was-there was some depression, but it was not depression that I would consider as a diagnosis.
Q Doctor, at the time you were talking to him and interviewing him, would you, given the background of the events of the day, expect that if he were susceptible to depression, he would be depressed at that time?
A I found him to be less depressed than I would have expected him to be.
Q Now, Doctor, can a person be depressed and not have mental illness?
Q In your mental examination of the defendant, together with the facts, as you learned them to be, Doctor, was there anything in his background that you learned about, to suggest to you that he was suffering from any kind of mental illness, including depression, and I am not suggesting that that is mental illness?
A Well, my awareness of his background at that point was not complete, but from what I found out from him, I would not say there was any evidence of any type of pre-existing mental illness, including depression, and I noted nothing from my own examination which would indicate that he was showing any significant clinical depression at the time of the examination.
Q From what he had explained to you, and the material with which you have favored us with, would that in any way suggest any of the symptomatology of depression?
A Well, it appeared that he was showing depression and anxiety at least for a period of the time that we covered, but he was having difficulty with sleep; he was not performing at his usual level, but he certainly was depressed.
Q Doctor, would you call that kind of depression such as anything that you could label as slight, moderate, severe, psychotic?
A It was more than slight. I would say from what he described that it would be moderate.
Q Doctor Levy, now we are referring to the examination that you made pursuant to material furnished you that you had at hand and the interview. Did you make any evaluation with respect to the ingredients of the crime of murder, particularly as it orients itself to the doctrine of diminished capacity?
A Yes, that was something I covered. . . .
Q Well, now, Doctor, in this particular case, having the concept of malice in mind, Doctor, did you feel that the Defendant was precluded by anything including mental disease or disorder, from whatever source, from forming that quality of thought which we understand in our law as malice?
A Well, in terms of the capacity to form malice I found nothing that would indicate a lack of such capacity.
Q Doctor, did you feel or did you see anything which suggested that he could not premeditate, that is to plan ahead, to consider a course of action beforehand?
A I felt he had the capacity to premeditate.
Q With respect to deliberate. Do you feel that he was able to form or arrive at a course of conduct weighing considerations?
A To that extent, I felt he had that capacity, yes. . . .
Q Did you review the transcripts of the proceedings wherein the testimonies for Dr. Jerry Jones, Dr. Martin Blinder, Dr. George Solomon, Dr. Richard Delman and Dr. Donald Lunde were given?
Q Doctor, having read those particular testimonies and considered them, would those testimonies given the facts that they used upon which to form and venture their opinions change your mind from what you have testified to with respect to the Defendant's mental examination, his mental status, competency, competency particularly with respect to his ability to form the prerequisites of murder and murder in the first degree, including premeditation and deliberation?
A No, I found nothing in them that would cause me to revise my opinion.
Q Doctor Levy, are you familiar with any studies and any prevailing scientific bodies of thought relating to the ingestion of sugar, foods with preservatives such as what's commonly known as junk foods and including, for example, chocolate cupcakes of Twinkie variety, Coca-Cola, candy bars and potato chips, for example, as those relate to being causative factors in influencing anti-social or sociopathic behavior?
A I am unaware of any prevailing psychiatric opinion that such factors are significant in relationship to any type of mental illness.
And I am unaware of any publications in major journals which state that.
Q Doctor, have you had occasion to discuss this with any persons who have done any studies in this regard?
A Yes, I have.
Q And is that part of your opinion that you've given here?
A Well, I was not aware of any such reports, so I contacted who I felt would know if such reports were documented.
Q And who would that be?
A That was Dr. Victor Roos.
Q Who is he?
A He is Director of one of the in-patient units in Langley-Porter, and prior to his coming to San Francisco was at the National Institute of Mental Health where he was doing research
MR. SCHMIDT: Your Honor, if he's going to qualify another doctor, I think we ought to have the other doctor in perhaps.
THE COURT: All right. Sustained.
Q Well, Doctor, upon your understanding and what Dr. Roos has discussed with you, do you have some opinion with respect to that, whether such foods as I have generally outlined affect human behavior-
MR. SCHMIDT: Your Honor-
MR. NORMAN: -in an anti-social or sociopathic sense?
MR. SCHMIDT: This doctor can give his opinion. I don't think he should give other doctors' opinions.
THE COURT: All right. He said that he knows of no documentation. So I will sustain the question. If you have any experts you had better bring them in.
MR. NORMAN: Well, of course-
THE COURT: I sustained the objection. You can ask the next question.
MR. NORMAN: All right, Judge. I think that will be all.
CROSS-EXAMINATION by Mr. Schmidt:
Q . . .Specifically with regard to forensics or legal body of psychiatry, have you ever taught any courses in that regard? . . .
A I have taught the medical student course, the major medical student course on forensic issues for, I guess, about ten years now. . .
Q And, as I understand, your testimony, that psychiatric evaluation occurred on the evening of November 27th, about 7:00 o'clock?
A Yes, about 7:00 o'clock.
Q Would you say that Mr. White's emotional state at about 7:00 o'clock was approximately what it would have been about, say, noon?
A I can only say that it didn't seem much different than what I could ascertain from the tape.
Q From the tape you would ascertain that emotionally he was thoroughly well together and appeared to be intact with his affect?
Q Incidentally, we have had some testimony by you with regard to your feeling that an examination that takes place relatively close in time is more valid than one that takes place later in time. Is that accurate?
A Not necessarily more valid. But what it does is give you the information firsthand rather than secondhand.
So it could be more valid that way.
Q Would you agree, however, at the same time it doesn't provide you with a lot of information that might be gathered by the police and through other sources over a period of time?
A No, it certainly doesn't.
Q Would you describe Mr. White at the time that you saw him as in shock?
A No, he didn't appear to be in shock.
Q Would you use any adjective like shattered or destroyed?
A No, not at all. . . .
Q What do you expect to be paid for the consultation on the 17th?
A I was-my fee would be $50 an hour for the time.
Q As I understand it, you saw Dan White just once?
A Yes. It was just the one interview.
Q That was about two hours?
A A little beyond two hours.
Q Now, you also sent me a bill, did you not, for professional services for testimony at preliminary hearing, is that correct?
A Yes, I did.
Q So judging from the fact that you intend to bill the District Attorney's Office and you also intend to bill me, that would be fair to say that it's common that psychiatrists are paid for their time?
A I would expect it, yes. . . .
Q Doctor, since the time of the examination you've gathered other materials, as I understand it?
A I have seen other materials, yes.
Q When did you first see the other material? I mean, you mentioned particularly the trial transcripts?
Q Now, the other contact that you had with my office was simply to send me a bill, is that correct?
A No. Well, preceding that was the matter of the subpoena and your requesting me to testify at the preliminary hearing.
Q That's correct. Did you ever contact me with regard to this action?
A No, I did not.
Q Did you ever make a request of me that you talk to Dan White on any other occasion?
Q Now, Doctor, would you feel that information obtained from witnesses such as his aide or people in the Mayor's office might be useful in getting a more complete picture with regard to his emotional state
just prior to the offenses?
A I think any information that could be obtained could be potentially useful.
Q In fact, that's a quotation from your report, "That I always feel that information obtained from witnesses such as an aide and people in the Mayor's office might prove useful in getting more complete pictures with regard to his emotional state just prior to the offense?"
Q And, in fact, you did not gather that information, did you?
A I didn't get it myself, no.
Q Did you ever talk to the aide?
A No. I talked to no one related to Mr. White.
Q You didn't talk to any of the family members?
A No, I did not.
Q You didn't talk to anyone that might have known him and known of his past history?
Q Now, during the interview-let me back up a bit.
You talked with Mr. Norman. He gave you underlying facts with regard to the shootings at City Hall?
Q Did he fully develop the facts with you at all?
A I doubt if he did. We didn't spend that much time together.
Q And at that time Mr. White was also represented by attorneys, or you believed that he was represented then by attorneys?
Q And they said it was permissible for you to talk to him?
I asked if it was permissible. And I also asked if they wanted to sit in during the interview.
Q All right. And they said-they declined to sit in, but they said it was permissible for you to talk to Mr. White. You mentioned that you thought he was being candid, and you thought he was being cooperative?
Q I would trust that you thought that he was being truthful in recounting-
A I had no reason not to believe what he was saying at that point.
Q Did you ever ask what Dan White's attorneys told him to say to you?
A He told me that they-that he was told to speak freely and answer any questions that I asked him. . . .
Q And you indicated you did not feel that he was being anything other than truthful. At least there was no indication that you picked up during the interview, is that fair?
A No. I thought he was quite truthful. In fact, I-I had wanted his attorney to sit in but they had declined to do so.
My feeling is that-ordinarily when I interview someone it's as a court appointment. It's very rare that I interview them at the request of the prosecution, and I am concerned about that type of assessment because it's so easy for someone at that point to reveal things that might not be all that much in their best interest.
And on previous occasions where I have done this, I have had the attorney in there to advise his client when not to answer a question. . . .
Q And in his account of the actions, the shootings, he quite clearly stated that when he went to City Hall he did not intend to shoot anyone?
A That's what he told me, yes.
Q You had no reason to doubt that?
A I had no reason to believe it one way or the other. . .
Q Now, returning to this talk that you had with Dan White on November 27th, 1978. . . .you indicated that you concluded that he was in the same basic mental condition at the time you saw him as when he made the taped statement to the police?
A His mental condition substantially was the same, yes.
Q And I believe you stated that he was calm while he talked to you? Relatively calm?
A For the most part, yes.
Q He didn't appear to cry, although he may have been on the verge of crying a couple of times?
Q All right. He wasn't particularly upset?
A Not during the time I saw him.
Q Doctor, I asked you whether or not you felt that because you did your examination on the evening of November 27th, 1978, that you felt that that necessarily had more validity. In that regard, is it true that psychiatrists and psychologist routinely reconstruct mental states and capacity after the time that the incidents occurred?
A That's what they are called upon to do, yes.
Q That is, in fact, the usual way that that's done?
Q And when you do have an interview close to the time of these incidents, you do not have a lot of the background material that may or may not be important, is that fair?
A That's generally true, yes.
Q In fact, it surely is true in this case?
A Yes, I think background information is significant in this case.
Q Now, doctor, if I suggest to you that police and other witnesses have testified that upon observing Dan White shortly after the shootings he was shattered, shocked, appeared to be a broken or shattered man emotionally and physically, I think you would disagree with that; is that fair?
A No, I wouldn't disagree with that.
Q And yet you maintained he was calm and not upset at the time you saw him?
A By the time I saw him he was calm, yes.
Q I see. But I thought you also said that he was in the same state, mental condition, as he was at the time that the police officers had seen him?
A You mean when he was first seen?
No, what I am describing is the way I heard it on the tape.
Q Your explanation of that is that he was calm and not upset?
A He certainly was not as calm when I saw him, but I wouldn't describe him as distraught and shattered as he appeared on the tape. . . .I can only go by what I heard. I didn't see him.
Q I understand. So, would it be your suggestion now that he was not in the same mental state at the time he made the tape as when you saw him?
A No. I would say he was in essentially the same mental state, about his emotional reaction was certainly more pronounced on the tape than when I saw him.
Q Would you agree that emotions play some part in one's mental state?
A They are related. Emotions are not part of mental state, but they are certainly close.
Q Certainly they affect mental state?
A Each affects the other, yes.
Q If I suggested that there was testimony in this courtroom that men that knew him, police officers that knew Dan White, said that he was not the man that they had previously known when they saw him on November 27th, 1978, would you agree with that assessment?
A I would have no reason not to agree with it. . . .
Q Would the type of testimony, if it were true, that it had been testified that he appeared to be a shattered man emotionally, mentally, would that have any effect on your opinion at all? . . .
A No, I don't think it would.
Q Dr. Levy, that-the defendant shot George Moscone twice in the head after disabling him with two body shots, and that he shot Harvey Milk twice in the head, similarly, after disabling him with some three body shots, does that have any significance to you, Doctor, in regard to his frame of mind or his attitude toward either or both George Moscone and Harvey Milk?
Q Would you agree that there is a major mental illness known as manic-depression, depression, uni-polar depression or depression?
A Yes, there is.
Q Now, Doctor, would you also agree that the disease depression is different from being depressed, blue, moody, down?
A Yes, they are different.
Q So we can be clear, perhaps if we are talking about the feeling of depression within one's self, we could use sadness or any other adjective other than depression that you care to use, and with regard to depression, is the disease depression particularly common? . . .
A Manic-depressive illness is not all that uncommon.
On the service where I work, it accounts for, I would say, 20 percent of the admissions. . . .
Q Doctor, as I understand it, when you talked with Mr. White, you could find no indication that there was a mental illness?
A That's correct. . . .
Q What are the symptoms of the disease depression?
A Of manic-depressive depressed type?
A It's generally manifested by feelings of worthlessness, inability to concentrate, loss of appetite, loss of weight, a sleep disorder that is usually one of early morning awakening, loss of interest in general activities, loss of sexual ability. . .And also a number of physical complaints. Constipation frequently, abdominal pain, and in more serious cases actual delusions and hallucinations.
Q Doctor, you did recall, however, that Dan White told you of a thoroughly long-standing sleep disturbance?
A He told me about his disturbed sleep, yes. . . .
Q All right. In fact, he indicated that he had a chronic sleep disturbance for several weeks, isn't that correct?
A He didn't specify the time, but it had been going on for, I would say, at least a week, probably two weeks. . . .
Q And, in fact, your report states that he was having so much difficulty in recent weeks that he was not sleeping in bed with his wife because he did not want to disturb her?
A Yes, that's what I put in my report.
Q And so it would have been for some period of weeks then?
A Possibly, yes.
Q As a matter of fact, it came out just with that statement that he was not sleeping with his wife, correct?
A That's what he said, yes.
Q Would that indicate to you that, perhaps, further questions with regard to sex drive or sex interest might be in order for one looking for depression? As you indicated, that's another symptom.
A Yes, it could have been asked.
Q Did you ask it?
A Not that I recall.
Q Now, you mentioned that another symptom of depression would be weight gain or change in appetite. Would it also be weight loss, or, conversely, would it be weight gained or weight lost?
A Well, the weight loss is much more significant. There are a few more people who will gain weight when they are depressed.
Q If one gained 20 pounds in a year's time, would you say that that's an excessive weight gain?
A I would have to know what the individual weighed prior to that and whether the individual ended up being significantly fatter.
Q If I suggested to you that the DSM, Diagnostic and Statistical Manual Third Draft indicates that: For diagnostic criteria for a depressive episode, would include weight loss or increase of appetite or weight gain, and that a change of ten pounds in one year is indicative of that. Would you disagree with it?
A I can't agree or disagree with it. It's not officially adopted yet.
Q In fact, it will be adopted very soon, however, is that fair?
A It was supposed to have been adopted last July. It was put over till January, and I don't know when it will be adopted.
Q Whether or not it's official, do you disagree with that?
A Yes. I wouldn't take a ten-pound weight loss as being that significant all by itself. What happens in DSM Three they don't take anyone criteria. You have to combine them with others.
Q And you would equally say a 20-pound weight gain in one year was not significant?
A I would say it was something to note. But it would be hard to say what it might be significant of.
Q Doctor, with regard to that, as you indicated, because you had no background material, you didn't know what his weight was before?
A That's right. . . .
Q So you have had nothing to compare it to to determine whether or not there was a 20-pound weight gain within a year's period?
A That's right.
Q And this would be yet another example of not having background material, not being much assistance to you in making a final diagnosis. Would that be fair?
A In looking at it longitudinally, it would help, yes.
Q Now, Doctor, if one does not have a previous history of treatment for a mental illness, does that necessarily mean that one is not mentally ill?
A No, not at all. . . .
Q Did you inquire at all as to whether or not he had any of these certain symptoms we have been discussing?
A I didn't ask him if he had ever had such symptoms, no.
Q You base at least part of your conclusions at, or part of your conclusions with regard to no evidence of mental illness and, in fact he was not treated for mental illness, is that fair?
A No, not really. What I am saying is that at the time I examined him there was no evidence of mental illness.
Now, it's very possible, in fact, happens all the time, I see people with manic-depressive illness between episodes and there is no manifestation of illness. If it's not a chronic condition like other illnesses might be.
Q And if I suggested to you there was some testimony with regard to suicidal tendencies in Dan White's past, would that be significant with regard to the disease depression?
A It could be.
Q In fact, it's a recognized symptom, is it not?
A It's a symptom of depression. Whether it's a big D, small D, or whatever type of depression, it's a very common occurrence. . . .
Q You didn't ask him about whether or not he had recurring thoughts about suicide or if that was in his past at all, correct?
A No, that didn't come out.
Q I think it's clear, but it didn't come up. In other words, you did not ask a question that would prompt that response? . . .
A It wasn't anything I asked about. It wasn't anything volunteered.
Q The disease depression is different from the feeling of depression or, I think, we are going to use bad mood, or something?
A The feeling of depression can exist without the illness of manic depressive illness.
Q If one had episodes of bad moods couldn't, perhaps, that be a symptom also of the disease depression?
A I suppose it could, yes.
Q In fact, it's a recognized symptom, is it not?
A Well, depending upon the depth. Everyone has personality variations in which mood can be up or down from day to day or from week to week.
If it's more pronounced than that it's called cyclothymic personality, and when it's even more pronounced, then you start calling it manic depressive illness.
Q Now, Doctor, I believe you suggested that Dan White was of the obsessive compulsive personality makeup?
A That's the way I saw him, yes.
Q Is that type of personality makeup more prone to the disease depression?
A Not manic-depressive illness. It's thought that people with, that type of disorder when they get older are prone to develop what's called involutional melancholia, which is another kind of depression.
Q A diseased depression nonetheless?
Q Dr. Levy, are you acquainted with Dr. Lunde?
A I know him by name. I have never met him.
Q Would you agree that he's a qualified psychiatrist with fairly good credentials?
MR. NORMAN: Objection. Calling for his opinion and conclusion. This is a matter that, I'm sure, is outside the scope-
THE COURT: Overruled.
THE WITNESS: I assume he is.
Q Are you acquainted with any work that perhaps he has done, a number of books he has published, and articles he has published?
A I haven't read anything that he has written.
Q Let me ask it that way. Do you know whether or not he's one of the leading forensic psychiatrists in the state of California? . . .
THE WITNESS: No, I don't know that.
Q You don't know that. Are you acquainted with Dr. Solomon, George Solomon?
THE WITNESS: Yes, I know him.
Q In regard to the same line of questioning, would you agree that he is, or do you know whether or not he is one of the leading forensic psychiatrists in the State of California? . . .
THE WITNESS: As a matter of fact, I was unaware that he was in forensics.
Q [By Mr. Schmidt] You are not familiar with any of the work or publications that he may have published?
A No. I have not followed his career.
Q Are their opinions, Dr. Lunde and Dr. Solomon, worthy of note, or respect from you personally?
MR. NORMAN: Objection. Improper foundation. He says, he doesn't know anything about him.
THE COURT: Don't argue. Sustained.
Q Do you know them well enough to hazard your opinion on their qualifications to give opinions?
A No. I haven't-I haven't actually seen Dr. Solomon except casually for quite a long period of time. And I have never met Dr. Lunde that I am aware of.
Q Now, Dr. Levy, I believe you mentioned you read the testimony of the various doctors that testified including Dr. Jones and Dr. Delman and Dr. Lunde and Dr. Solomon and Dr. Blinder?
Q That testimony did not cause you to change any of your opinions, is that fair?
A That's fair, yes. . . .
Q Do you disagree, rather, with regard to their diagnosis of a mental illness suffered by Dan White?
A Well, they didn't all diagnose a mental illness, or they didn't all diagnose the same mental illness. I am not sure what you are referring to.
Q I think Dr. Lunde and Dr. Solomon and Dr. Jones and Dr. Delman all suggested that Dan White was suffering from a major mental illness, depression. Assuming that to be true, would you disagree with that diagnosis?
A Well, you mean to assume that it is true? Because that's not the way I recall reading it.
Q Well, assuming that that's-what do you recall reading? Perhaps we can start that way.
A Well, Dr. Lunde called it an obsessive compulsive personality with depression. I don't recall him giving an actual diagnosis. Dr. Jones called it manic-depressive illness. . . .
Q I realize you didn't have total recall, but Dr. Lunde testified the mental illness is depression of a fairly severe degree. Secondarily, also gets a long standing duration of obsessive compulsive personality. But, as you suggested, there was a personality which included depression which does not appear to be his diagnosis. Would you agree?
A Depression is not a diagnosis. Severe depression is not a diagnosis.
Q Again, with Dr. Lunde, he states that:
[Reading]: "Mr. White, in fact, was suffering from very severe depression. He had classical symptoms that are described in the official diagnostic manuals for depression, and I would say both biological and physiological and mental symptoms, and of course, he has characteristics of compulsive personality, which happens to be kind of a bad combination in those sort of people, who are also prone to depression, because as they get older and more involved in the work of adult life, such people tend to become more vulnerable to depression than other people are."
Is that fair? Is that accurate?
A That's what he said. But if an individual was suffering from that severe depression at 11:00 o'clock, it should still be there at 7:00 o'clock.
Q Dr. Solomon, testified: [Reading]: "I think he was suffering from what in the new classification is called a uni-polar depression reaction, and that means he was subject to recurrent bouts of depression to a major degree."
Would that be accurate? . . .
A Well, I am assuming it's accurate to what he said.
Q I am asking you now: Do you disagree with that? . . .
A Yes, I do.
Q Now, I believe you did say, however, that Dan White was moderately depressed?
A Yes, he was.
Q And in using the term depressed were you referring simply to a bad mood, bad feeling, or were you referring to a mental illness?
A No. He was depressed, but it was not a diagnosable mental illness in the sense of uni-polar depression.
Q And he did have, just in the brief time that you interviewed him, several of those symptoms, did he not? Chronic sleep disturbance apart-
A As he reported, yes.
Q Apparent-well, as he reported. You suggested he was being truthful and candid, had you not?
A No. What I am saying, I could not observe it.
I am going on his report which I assume was truthful. . . .
Q Dr. Jones, his opinion is that: [Reading]: "My opinion is that Mr. White suffers a major mood disturbance, and by major mood disturbance, elaborating for purposes of the Jury, that would be a depressive illness, a manic depressive illness, depressed type." Do you disagree with that also?
A I disagree with its cause, as I recall, he said he was not psychotic. And major mental illness is psychosis.
Q You disagree that the DSM manual has various degrees of mental illness, and, I believe, they are indicated by moderate, marked severe and psychotic. Are you familiar with that?
A I am not familiar with that designation.
Q What do you think the grades are, or degrees, for mental illness?
A For mental illness?
MR. NORMAN: Wait a minute. Are we talking about-aren't we talking about depression?
Q Mental illness generally, and as put forth in the diagnostic manual. I mean, do they use those terms? You are not familiar with those terms?
A Those terms are used but they are not considered necessary as part of the diagnosis. The breakdown is psychotic, neurotic and personality disorder. And then assorted other types. If you wish to diagnose degree you can add a further digit to the diagnosis. But it isn't a requirement. And it's either psychosis or not psychosis. And then you get to degree.
Q So if one were moderately depressed he would be psychosis or psychotic, but to a lesser degree. Is that what your testimony is, sir?
A No, not at all. Either he has a psychotic disorder or he does not have a psychotic disorder. Then you can have a degree of illness under that category. But not because you have a severe depression you automatically become psychotic.
Q If you have a severe depression, is it nonetheless a mental illness, using depression as manic-depression, depressive type, or uni-polar depression?
A Well, manic-depressive is mental illness regardless of the degree.
Q And from your testimony then, I would glean they would have to be psychosis?
A It is a psychosis by definition.
Q And you characteristically in psychosis would involve hallucination and delusions, is that correct?
A At times, it might, but it may not. It's simply that you cannot have a manic-depressive illness and not have a psychosis.
Q Now, turning to the morning of November 27th which is, of course, the time that we are going to have to deal with here. What would be your estimate of the degree of depression Mr. White was laboring under?
A In choosing between mild, moderate and severe, I would call it moderate.
Q If the other doctors suggested that it was severe, then your statement would be just-in difference to theirs would be just a matter of degree, is that accurate?
A In that term, it would seem to be, yes.
Q Now, Doctor, assuming that a patient came to you, anyone came to you, this is a hypothetical situation, and he suggested that he had suicidal thoughts, weight increase, change in diet, sleep difficulty, loss of energy, loss of interest in usual pleasures, decrease in sex drive, and indecisiveness, would you then suggest that that person was mentally ill?
A It would seem to me he was having symptoms which would suggest he was having mental illness, yes.
Q And that mental illness would be depression?
A It's one possibility, yes.
Q And that depression would not necessarily involve hallucinations and delusions?
A Not unless it was severe.
Q Severe or psychotic?
A Well, a manic-depressive does not have to have hallucinations and delusions, but when they are severely depressed or severely manic they will have hallucinations and delusions.
Q Now, adding to that: If your patient was a man of ordinary good character and he had inexplicably killed two persons, would you assume he was mentally ill?
A I would have to know much more about that than just that statement.
Q Precisely. You would have to know whether or not he had suicidal thoughts, weight increase, changes in appetite, sleep difficulty, and have a complete history, isn't that correct?
A If it was inexplicable, I would have to know why it was inexplicable.
Q Now, Doctor, in taking the case history of Dan White, I believe you said you arbitrarily started with Thursday, which would have been Thanksgiving Day?
A As I recall, yes.
Q Would it be significant at all if there was testimony that Dan White had not gone out of the house the Tuesday and Wednesday before Thanksgiving? . . .
A No. I would have included that information.
Q But, in fact, you didn't. You started on Thursday, so you didn't have that?
A That's right. We didn't go back any further.
Q If, in fact, had you gone back further than that, just two days, and learned that he hadn't gone out of the house for the entire period and still had sleep disturbance, would that cause you to look further into that?
A It might, yes.
Q Doctor, I believe in your testimony this morning you said that after this telephone call Dan White began brooding about the situation.
And this was the telephone call of November 26th?
A That was his report.
Q Did he use the word brooding?
A What he said was he was thinking over the fact that he was being cheated.
Q So you used the word "brooding?"
Q Now, Doctor, from your testimony that you gave this morning, I would glean that you believed that on the morning of the 27th, without further telephone calls he decided to go down to City Hall. Is that fair?
A That was the way it was reported to me, yes.
Q If I suggested to you that Denise Apcar had called Dan White on the phone on November 27th on at least two occasions, perhaps three, and reported the goings on at City Hall, and that he still indicated he was going to stay home, and later called Denise back and said come and get me, would that be significant to you at all?
A No. I would assume that it was something that he hadn't remembered at the time. That's the reason he didn't tell me.
Q Couldn't it also, perhaps, indicate that there were outside influences or pressures exerted on him on the morning of the 27th to go to City Hall?
A It might.
Q He indicated, in fact, on the evening of the 26th he had no desire or, certainly, did not contemplate going to City Hall on the 27th, is that fair?
A That's what he said, yes.
Q And, Doctor, with regard to remorse, or lack thereof, you testified this morning that at the time you had your interview with Dan White, remorse was not obvious at that time?
A That's right.
Q In other words, he didn't specifically say he was sorry for having killed George Moscone and having killed Harvey Milk?
A That's right.
Q Let me ask you this: Did you ever ask him specifically?
A As I recall, I don't believe I asked him specifically.
Q If I suggested to you that there has been testimony from three doctors that in fact Dan White is terribly guilt ridden and full of remorse, would that change your opinion in any way?
A No. It was something I expected would eventually happen.
Q Doctor, are there any tests that would show guilt or shame or remorse?
A Yes, I think tests would show it.
Q Are you familiar with W.A.I.S or Wexler Adult Intelligence Scale?
Q And the Minnesota Multi-phasic Personality Index?
Q And the Rorschach test?
Q Using these administered by a psychiatrist or a psychologist, would that possibly indicate guilt, shame or remorse?
A Well, some of them could, yes.
Q If I suggested to you that a qualified Doctor of Psychology had administered those tests and came to a different conclusion with regard to the point of remorse, would that change your opinion in any way?
A Well, no. As I said, I anticipated that sometime after I saw him that he would begin to feel remorseful.
Q So, perhaps, his remorse was repressed, would that be fair, at the time that he talked to you?
A I don't think he had had sufficient time to really think about the whole event and put it into context with how it was going to affect him, how it was going to affect everyone else concerned with him or not.
Q Now, Doctor, you would agree that the tests I have outlined are fairly standard tools for psychiatrists and psychologists?
A It's a fairly standard test pattern.
Q Did you perform any other test or any other subjective tests on Dan White?
Q Doctor, I think you also testified this morning that you were unaware of any prevailing attitudes or opinions in psychiatry with regard to the ingestion of sugar, or that type of food, is that fair?
A Yes. . . .
Q In fact, that could be considered to be a minority position, if you will? There are some connections, however vague, between ingestion of sugar and food and violent behavior?
A Anyone is entitled to write a paper on anything they wish.
Q All right. In fact, Doctor, because you perhaps are unaware of any prevailing attitudes does not necessarily make it untrue, is that fair?
A No, I wouldn't say that it's untrue. It just simply hasn't been demonstrated.
Q To satisfaction in your mind?
A To my mind and the majority.
Q Nonetheless, it is a viewpoint that has at least surfaced?
A I'm sure there are people who believe in it wholeheartedly.
Q Would you agree that there has been research in that area?
A There has been.
Q There has been much research and publications in that area?
A Publications, yes.
Q And, of course, you have no training or experience with regard to that particular facet of the field?
A I have never gone into that in any extent at all.
Q Over and above a causal relationship, if in fact it may exist, or may not exist, just over and above that, would you, suggest that a radical change in diet would be a symptom of perhaps depression?
A It could be a symptom of a number of things, and I would imagine depression would be one of those.
Q And do you think a radical change in diet perhaps would be indicated if one were normally health conscious and ate healthy well balanced meals and then as erratically start to eat donuts and cupcakes and that sort of thing?
A It could be. It's not typical of the sort of thing you see with people that are depressed.
People who are depressed lose their appetite, and it isn't a matter of switching from one type of food to another, so much as it is just not eating.
Q Well, I think we've gone through that, and you have said it also could be a weight gain, at least sometimes, although it's less frequent, is that fair?
A There are some people who react to most stresses by eating, and in people like that the tendency would be to eat more when they get depressed.
Q So that does occur, correct?
A Yes, but it isn't 'specific for depression.
Q No. But, nonetheless, it's a symptom, or a possible symptom?
A It's a possible one, yes.
Q So with regard to depression, just generally, you can attach some significance to diet and the change of the diet?
A You mean the effect of the diet or the fact of diet?
Q The fact. It's just a change of diet?
A The fact of change would indicate something is going on that's different.
Q Now, Doctor, you testified to certain forensic conclusions, and you did write a report which was provided to me?
Q Well, regardless of the back-dating, or whatever, when did you come to your conclusions, your forensic conclusions?
A I'd say the conclusions would have been on November 27th. Q And that was after a two-hour talk with Dan White?
Q Doctor, would it be fair to say that you made some snap decisions?
A I don't believe I did.
Q Did you consult any text or materials?
The diagnostic and statistic manual?
Did you consult that with regard to anything that you saw?
Q Did you consult with any other doctors?
Q Did you review any of the witnesses' statements
A At that point?
Q At that point.
Well, that's when you made your conclusions, is it not?
A That's right.
Q Did you consult any of the material that was available to you save and except for the tape of Dan White on the same date?
A No. That was all that was made available to me at the time.
Q And yet you feel that your forensic conclusions were not snap decisions?
A No. I was basing it upon what I had available.
Q Since that time a wealth of material has become available, transcripts of statements of witnesses, correct?
A That's correct.
Q Have you reviewed those?
A No. I reviewed the medical reports. The transcripts of the doctors.
Q What medical reports did you review?
A I reviewed the transcripts of the testimony of the doctors that you called.
Q You mean the testimony in the trial here?
A In the trial, yes.
Q So you reviewed that last night?
Q And that was provided to you by Mr. Norman?
A That's correct.
Q You didn't talk to any witnesses, did you?
A No, I did not.
Q Now, I don't mean to be facetious, but this is a fairly important case, is that fair?
A I would certainly think so, yes.
Q And it is a customary tool that one would seem to gather information from people that perhaps knew him in the past, his aides, things such as that, before making a forensic conclusion?
A I have to point out, this is an unusual situation, as I mentioned. This is the only time in my whole career that I have examined the individual for the District Attorney in a case like this. I have testified in this way in other cases and it's been based strictly upon the reports of the other psychiatrists, and my opinion related to that.
Q I understand, Doctor.
A If he had refused to talk to me, I might still be here testifying in this fashion based upon my review of those reports.
Q Yes. But in the report itself, Doctor, you made a conclusion on November 27th, regardless of when you wrote your report.
In the report itself it says, in fact I will read this: [Reading]: "In this regard if you have any questions please get in touch with me. I am sure there are aspects of this Defendant's life that were not touched upon in this interview. And should those seem significant areas, I would be happy to talk with him further."
You didn't talk with him further?
A No. I was not requested to.
Q I see. And you didn't request to talk to him further?
A No. I was not going to do a complete assessment.
Q Well, in fact, you didn't do a complete assessment. Is that fair?
A I would say that it's not as complete as I would have done if it had been another type of appointment.
Q Well, this was an important case, was it not?
A Yes, it was.
Q And yet you didn't do the complete assessment?
A I was not asked to do a complete assessment.
Q You go on. [Reading]: "I also feel that information obtained from witnesses such as his aide, people at the Mayor's office, might prove useful in getting a more complete picture with regard to his emotional state just prior to the events."
Is that correct?
Q You didn't gather any of that type of material prior to the time you made your actual forensic conclusion, is that fair?
A These conclusions are based on what I had at the time.
Q Did I understand your forensic conclusions then to go to the time that you saw him as opposed to the time of the crime?
A I could only truly assess him from the time that I saw him. A mental status examination can only be at the time you see the individual.
Q You saw him some eight hours after the time of the crimes, is that fair?
A Approximately, yes.
Q All right. So your mental status examination would be directed to the eight hours later?
A And what an individual might be like several hours earlier depending upon how he appeared at that point, yes.
Q You made that decision on the night of the 27th also, is that fair?
Q I believe you indicated that you are not competent to give an opinion on the actual state of mind; you can just simply talk about possible capacity; is that fair?
A Well, in terms of what a psychiatrist is asked to do, yes, in terms of capacity, rather than actual states of mind. . . .
Q Now, you concluded on that evening, that he was probably able to premeditate, and you based that upon what he indicated here in the statement, and the discussions with Dan White?
Q Yet, Doctor, you go on to say: [Reading]: "I could not obtain any direct information from the defendant which would make me firmly believe that premeditation was involved.”
A He did not give me information to the effect that he did premeditate.
Q In fact, a large part of your conclusions are based upon simply talking to him, listening to a tape, talking to Tom Norman for a few minutes; isn't that correct, Doctor?
A It was an assessment of the mental state during the interview.
Q Which was all of eight hours after the crime?
A All of eight hours after the crime.
Q You also suggest, Doctor, that your opinion is based, at least in part, upon the fact that he took the gun to City Hall, and the fact that he had a peculiar mode of entry into City Hall; is that fair?
A What I am saying is that those would be suggestive of premeditation, wouldn't pertain to the capacity.
Q Well, if those are suggestive of premeditation, Doctor-if I suggested to you there were explanations for both of those, that have been testified to here in court, would that change your opinion at all with regard to premeditation?
A It would not-well, I am not sure what you are referring to. The capacity to premeditate would not be changed. Any information that might pertain to what he actually did or what he actually thought could influence me whether he did, indeed, premeditate.
Q Well, you didn't conclude that he-that he did, indeed, premeditate; isn't that fair?
A I was unable to conclude either way. It isn't really my business to do so, anyway.
Q Doctor, you-Doctor, he told you, I believe, in reciting the events of November 27th, Dan White indicated that he went through the window because he realized there was going to be an embarrassing situation at the front door; is that correct?
A There could be an embarrassing situation, yes.
Q He also told you why he took the gun, did he not?
A No, he didn't really say why he took the gun.
Q In your report you say: "The defendant stated that he had carried his gun on previous occasions, especially around the time that he served on a committee which denied certain requests of the White Panthers. He received some threats at that time. He did not, however, carry the gun all the time and he was unable to give any explanation as to why he had the gun with him on the day of the offenses."
He did indicate to you, however, in the past he had taken it when he was feeling threatened; is that accurate?
Q Now, Doctor, we don't need your expertise for this, but approximately a week before these tragedies, we had an occurrence called "Jonestown,” which was directly connected with the People's Temple out here; do you recall that?
Q Do you think that there might possibly be some security precautions indicated at City Hall with regards to People's Temple and possible further violence?
A Possibly the security at City Hall was stepped up as a result of that, but I don't know for sure.
Q Now, in fact, there were rumors of hit squads, and that sort of thing, were there not?
A There were such reports, yes.
Q Now, in May of 1979, looking back, we know that didn't happen, but at that time, there were 900 bodies laying out there in Guyana, and would it seem that it might be possible that on November 27th they were threatening persons out there; isn't that fair?
A It was possible, yes.
Q Now, premeditation, Doctor, means, to you, I believe, you testified simply as "planning?"
A Planning, to consider prior, beforehand.
Q And would crawling through a window indicate there was premeditation?
A It could, it couldn't.
I don't know whether it does or not.
Q Well, Doctor, you based, at least part of your conclusion that there was premeditation on the fact that he possessed a gun, and means of entering City Hall, which you thought were certainly suggestive of premeditation?
A Yes, suggestive.
Q Now, if I suggested to you there were-there was testimony in this courtroom that the key to the side door to City Hall was in his aide's possession, and he knew that, and in fact, the key to the car also, and if you were planning a get-away, and these keys were available to him, and he knew that, and he didn't take either one from his aide, prior to the time he entered City Hall, could that suggest against premeditation?
A It could.
Q And if that were so, would that cause you to change your opinion in any way with regards to premeditation?
A Not with regards to the capacity to premeditate.
Q Additionally, if one were planning these killings, is it logical that he would identify himself or conceal his identity?
A There are so many variations in types of antisocial criminal behavior that I hesitate to give an opinion.
Q Now, Doctor, you suggested in your report that there was some impairment of Dan White's ability to premeditate; is that a fair statement?
A To premeditate?
A I don't believe I said that.
Q I believe you said "Mental capacity was somewhat impaired?"
Q And that was due to what you termed "emotional disturbance;" is that fair?
A That he was in a turmoil.
Q Now, was he in a turmoil at the time you saw him or was the turmoil at the time the crimes were committed?
A From the way it's described, I would see him as being in a turmoil at the time it was committed, and to a much lesser extent when I saw him.
Q I see.
What kind of-what kind of turmoil would that have been, Doctor?
A As I say, it was a state of frustration, anger, rage, betrayal, all sorts of emotions, which would have negative connotations to them.
Q Frustration, anger and rage?
A And a feeling that he had been let down.
Q Now, Doctor, given that emotional turmoil, I believe you have indicated you think that was probably true, and if it were true, that Dan White were suffering from a mental illness of perhaps ten years' duration, would that, in your opinion, increase the degree of impairment of his capacity? . . .
A Not necessarily, no, depends on the type of mental illness.
Q Well, depression.
A No, if he were severely depressed, like a manic-depressive, I would not expect this type of activity.
Q Well, Doctor, I mean, you wouldn't expect this type of activity from someone of good character either, would you?
A More so than from someone that was suffering from a psychotic depression.
Q So I can glean from that that it is more probable that people with good character are prone to this type of act?
A To this type of act, yes.
Q Doctor, what are the elements for first-degree murder?
A First-degree is murder that is willful, deliberate, premeditated and with malice.
Q Does the concept of deliberation come into it at all?
A Yes, it does.
Q In fact, it's defined by the term "deliberation,” also, is it not?
Q What was-what does the term "deliberation" mean to you?
A To me, what it means is an individual who is giving consideration to his activities and arrives at the result through careful, thorough weighing of the pros and cons of the act, of the proposed course of action, and reflection on consequences of the behavior.
Q And thusly, it would be a weighing of the pros and cons, mature, meaningful reflection' upon the act; is that fair?
A That is part of the definition.
Q That differentiates it from premeditation; it's simply planning ahead; is that fair?
Q Now, I took particular note, Doctor, that you not once in this report addressed the issue of deliberation; in fact, the word is not even mentioned; is that fair?
A I don't believe it's mentioned.
Q Yet that would be information for a conclusion that we would need here; is that fair?
A It's one, yes.
Q Now, you testified that you thought you did a fairly adequate job or adequate enough in this case; is that fair?
A For the purpose of the report.
Q The purpose of the report was to determine whether or not this was some sort of diminished capacity defense?
Q Diminished capacity relates directly to deliberation, does it not, the ability to and capacity to deliberate?
A That is one of the factors.
Q You didn't address that issue at all, did you?
A I didn't include it in the report.
Q I see.
Now, would it be fair to say that mental illness, depression, might have an effect on the capacity to deliberate?
Q You didn't address the issue of deliberation, and yet you found no reason to conclude that he didn't deliberate or premeditate, as you put it, in your report, and you found no reason to indicate he did not?
A I didn't put "deliberation" in there, as to whether he did or didn't, or whether he had the capacity to do so.
Q In fact, you have indicated in your forensic opinion that he had the capacity to premeditate largely because there was no reason to conclude to the contrary; in other words, it's an absence of information; is that fair?
A That's right.
The assumption is that people have these capacities, unless you can demonstrate some reason why it should be impaired.
Q Mental illness, if it were true, would be a reason, would it not?
A It could be a reason, yes.
Q Emotional turmoil could be a reason?
A It could be.
Q In fact, you have indicated that he, at least, was in an emotional turmoil at the time of the crimes; is that fair?
A Yes, he was.
Q Now, by suggesting-you also had the term "probably able to premeditate." Would there be some issue in your mind as to the issue of premeditation; is that fair?
Q We use the "reasonable doubt standard,” here, do we not?
Q In fact, I believe you even said that his ability or capacity to premeditate, in your report, was not all that clearcut?
A No, his ability to premeditate seemed to be adequate, but whether or not he had premeditated, no.
Q All right, and let me frame another question with regard to the issue of premeditation.
You did indicate that, in fact, from the information you had, that this area was not all that clearcut?
A Well, you asked about his capacity to premeditate, whether that could be affected somewhat by his emotional state, any reason it could be, but I didn't locate anything to make me think that it was.
Q You go on to say: In fact in that area, it was not all that clearcut; is that fair?
A No, I don't see that section.
Q Well, I think I may be belaboring the point, but it starts at line 12, page 168, and you are talking-you say: "I felt this area was not all that clearcut."
A There, we were talking about actual premeditation, because we are going into the behavior that he manifested.
Q So, on that occasion were you hazarding an opinion as to actual premeditation, as to capacity?
Q You testified here that you are incompetent to do just that?
MR. NORMAN: Objection. That misstates the evidence. He never testified he was incompetent to do anything.
THE COURT: He said that it was not his area or province to determine that.
Q Now, Doctor, with regard to malice, as you understand the law, there is a distinction between malice and intent to kill; is that fair?
Q Can you tell me your understanding of the term "malice,” or "malice aforethought?"
A Well, if you view malice as involved in an activity where there is a high risk of someone suffering death, an act carried out for a base-antisocial motive, with a wanton disregard for human life, and with an awareness of the duty not to act, a duty by law.
Q And again, referring to the preliminary hearing, at page 166, on line 25, the question was asked: "As you used the term, 'malice,’ what is your understanding of that term?" And your answer is: "Well, the definition that I use in terms of his behavior was-would be pertaining to expressed malice, which is a manifestation of intentional and unlawful killing."
Q Now, Doctor, if there were simply a manifestation of intentional and unlawful killing, with nothing more, that would be no more than voluntary manslaughter; is that fair?
Q Now, Doctor, did you say that Dan White was in an aroused emotional state?
A Yes, he was.
Q And certainly an aroused, emotional state would interfere with his capacity to harbor malice or premeditate or deliberate; is that fair?
A In his case, I can't answer all as one thing; I would have to say: No.
Q Let's take them individually. As to premeditation and deliberation, it would interfere with that ability, would it not? . . .
THE WITNESS: As I viewed it in his case, it did not interfere with premeditation, and there is the possibility that it interfered with deliberation.
I do not think it interfered with the ability to act with malice.
Q Are you talking about what actually happened, or his capacity?
Q And those are your ultimate conclusions, based on what you testified here?
Q Now, is a dream-like fog or dream-like state consistent with a strong emotional disturbance?
A Yes, it is.
Q And, in fact, Dan White, in his interview with you, told you that he was in a dream-like state, or fog-like state; is that fair?
A Substantially, yes.
Q Now, with regard to that, would that be consistent with high wrought emotion?
Q Is there some physiological reason, perhaps, for that dream like fog or state that you are aware of? . . .
A It's a sympathetic nervous system discharge which creates elevated blood pressure, increased pulse.
Q In fact, doctor, would you say that this never would have happened, and by "this,” I mean these two killings, if Dan White were not upset, depressed and angry?
A I don't see him as the sort of person who would simply carry out an act like this unless he felt himself quite justified.
Q Well, Doctor, referring to your statement in the preliminary examination, page 164, and I am starting at line 17, you stated in response to a similar question that he was under a state of upset; that he was feeling depressed, angry and if it weren't for feelings, those things-none of this would have happened?
Q That is as to personality, but with regard to character traits, would you define him to be a moral person, truthful person?
A Yes, I would say: truthful, moral, honest, industrious, hard-working.
Q Would it be fair to say that acting out of malice or with malice, it would be out of character for him?
A He would have to be quite angry to act with malice, yes.
Q In other words, he would have to have an aroused heat of passion?
A He would have to be quite angry.
Q "Heat of passion,” is a legal term, of course, and if it produces any killing, then that is voluntary manslaughter?
A It's one of the considerations, yes.
MR. SCHMIDT: No further questions.
REDIRECT EXAMINATION by Mr. Norman:
Q Dr. Levy, while at the time you had rendered your opinion as of the 27th, or formed your opinion as of the 27th of November, in the evening time, you have told us that you went over some material which is, as a matter of fact, has been identified to in this court, those being the testimonies of Dr. Jones, Dr. Blinder, Dr. Solomon, Dr. Delman and Dr. Lunde, each respectively, and in reviewing that material, as to those persons just named, did you consider the background which they had and which they testified to in this court, concerning the defendant, upon which, or at least, part of which was the basis of their respective opinions?
A Yes, they all did put in a considerable amount of time in talking with the defendant and talking with family members and other people associated with the case.
Q Well, Doctor, again, have you considered that material which they considered, about which they gave testimony in that connection, in your opinion here, which you have said was not changed from your initial opinion of November 27th?
A Yes, my opinion today is based upon their testimony, plus my own assessment.
Q I take it that your opinions have not changed in that regard?
A That is right.
Q Doctor, do you feel, given that you have an opinion that the defendant was in some sort of turmoil at the time of the killings, that that turmoil, in view of all the facts and the circumstances, and his activities, was sufficient in magnitude to prevent or preclude premeditation or deliberation or malice?
A No, I don't think it would prevent or preclude it at all.
A To me, it suggests the extent of his anger.
Q Would you say that it's an extension of his anger?
A It could be viewed that way.
Q You have said and testified here that he felt angry, he felt betrayed, do you feel that humiliation was any other emotion which was entertained by Mr. White?
A Yes, I think that is a very strong emotion with him.
Q Asked about his character, you said something about his killing in justification or feeling justified; in this case, Doctor, do you feel that he felt that he was justified?
A At the time I saw him it seemed that he did feel that it was justified.
MR. NORMAN: Thank you, Doctor Levy.
RECROSS-EXAMINATION by Mr. Schmidt:
Q This is going to be very brief. Is there anywhere in your report, the report that was drafted some time after November 27th, but dated November 27th, did you say that he felt he was justified?
A I don't think it's in there, no.
MR. SCHMIDT: I don't think it's either.