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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: GRADY NELSON, vs. STATE OF FLORIDA,

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO. F05-00846

Plaintiff, REDACTED TESTIMONY BRAD FISHER, PhD

Defendant. ------------------------------------/ Gerstein Justice Building Miami, Florida November 16, 2010

The above-entitled case came on for hearing before the Honorable JACQUELINE HOGAN-SCOLA, as Judge of the Circuit Court, in court pursuant to notice.

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OFFICE OF THE STATE ATTORNEY KATHERINE FERNANDEZ-RUNDLE BY: ABBE RIFKIN, ASA -AND- HILLAH MENDEZ, ASA -AND- JOEL ROSENBLATT, ASA FOR THE DEFENDANT: TERENCE LENAMON, ESQUIRE -AND-DAVID MARKUS, ESQUIRE

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TUESDAY, NOVEMBER 16, 2010, 11:11 A.M. (The following proceedings are a redacted version of the testimony of Brad Fisher, PhD, omitting objections, rulings and sidebars at the request of the ordering party). BRAD FISHER PhD, called as a witness on behalf of the Defense having been duly sworn by the Cler , was examined and testified as follows: THE WITNESS: I do. THE COURT: Before you begin, address all your

voice up, and state and spell your full name. THE WITNESS: My name is Brad Fisher, F-I-S-H-E-R. DIRECT EXAMINATION BY MS. MAURER: Q A Q Good morning, Dr. Fisher, how are you? Good morning. Can you tell us a little bit about what your job

I am a clinical correctional or clinical

forensic psychologist. It means that I have training as a clinical psychologist, my specialty within that is wor ing in corrections or forensic applications, the applications having to do with the courts. Q Where do you live?

comments to the ladies and gentlemen of the jury,

eep your

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A Q

In Chapel Hill, North Carolina. Part of why we had to postpone our regularly

scheduled activities for you to testify. Can you tell me what your actual title is? A I am a clinical correctional or clinical forensic

psychologist. This is through the American Psychological Association. Q A Do you have a specialty within that? Yes. Within -- I am a clinical psychologist.

Within that, I do forensic wor , wor connected with the courts, and my particular area of focus and my research has

Q A

screening and prison adjustment for Mr. Nelson.

education. A Yes. I received my BA from Harvard University,

Cum Laude in 1972. I then entered a program that combined the center for crime and delinquency and their clinical psychology program at Southern Illinois University. I received my Master's degree there in 1973. At that point I entered one of two programs that was set up in the country for training, clinical forensic or clinical

O ay. Let's first tal a little bit about your

case to do an evaluation connected with those issues, ris

been ris

screening or prisoner classification. Can you tell the jury why you are here today? Yes. I was requested by the attorneys in this

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correctional psychologist. This was the University of Alabama and I received my Ph.D. from them in 1977. Q In connection with your Ph.D., did you have to do

a dissertation? A I did. Well, I did both. A thesis for my

Master's degree and I did a thesis, that thesis was -- the area criminal classification, separating different types of criminals and at the university of Alabama, my dissertation for my Ph.D. was in the prediction of dangerous behavior. Q A Have you ever done any teaching? Yes. I started my teaching bac at the University

of Alabama, and since coming to North Carolina, I have taught both at the University of North Carolina and at Du e University.

Prisoner adjustment assessment. Can you tell the jury what that is? A Yes. Prisoner adjustment assessment is

essentially saying there are differences, there are groups of prisoners. It's ta ing the position that a prison as it receives prisoners can do better than just saying they are all exactly the same. How can we ma e differentiation within them, groups with them, that can help in our prison administration.

Let's tal a little bit about wor

experience.

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prison classification, which are either synonomous or similar. Q So all three of those things mean the same thing? screening.

not, hopefully, moving away from guesswor about prisoner assignments. What sort of cells they need, how high are the

decisions. Q A Q And that is the same thing as prison adjustment? Yes. Yes, it is. Have you done any research with regard to prison

adjustment or creating guidelines for prison adjustment? A Yes. The foundation for this was going all the

way bac to when I was in graduate school. The federal

our psychology center to develop a new classification for the prisoners in Alabama, a new way of separating the prisoners and then to do it. There were 4,000 prisoners, so we actually spent a few years interviewing each prisoner, developing a system for classifying them.

court in Alabama under Judge Fran

Johnson, then, ordered

walls, are they going to be troublema ers, those

higher ris

inmate. So you are ma ing decisions, that are

Yes. Ris screening is just saying who is a

Say it one more time. Ris

That's ris

screening, that's prison adjustment, that's

ind of

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This classification was primarily for adjustment issues, who is a minimum custody, who is a maximum custody, how do we define differences in those types of prisoners. And so I did over a couple of year period, we evaluated each prisoner, we put them in their categories, we designed a new system for doing that for the state. Q In designing that system, how many individual

inmates did you do a prison adjustment assessment on? (Omission). THE WITNESS: There are 3,000 something in the prisons, and then there were another close to a thousand in jail awaiting -- they were held off going to prison until we developed the system. So close to 4,000. BY MS. MAURER:

or guideline creation for prison adjustment? (Omission). THE WITNESS: Yes. The primary one was after that wor at the University of Alabama, I was contacted and developed a grant for the National Institute of Corrections which is part of the Federal Justice Department to develop national guidelines for prisoner classification. This was a several year project where we went out to jurisdictions across the country, including Florida, and loo ed at their methods for classifying, refined them.

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Have you wor ed on any other national guidelines

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It used consensus models and other models to develop a set of national guidelines for ma ing these

adjustment. BY MS. MAURER: Q Do prisons actually use these guidelines that you

helped create? A Yes. Well, before we developed guidelines there

were a lot of prisons that did not have systems for classifying prisoners. Nowadays almost all systems that I am aware of, jails and prison systems, have a classification system. And all the ones that I am aware of used a basis of the model that loo s at patterns of past behavior as a primary guidepost. Q What are they actually using these guidelines for?

What are they determining? What are the jails trying to decide? (Omission). THE WITNESS: The jails are trying to ma e decisions having to do with limited resources. Each inmate can't be put in a separate cell and have the highest level of custody. They have to ma e some decisions about which inmates they're not going to worry about as much and be in a

differentiations of prisoners of ris

screening of prison

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dorm setting, don't need a double escort, whatever the decision about the security levels be, and who is the one that they are -- they don't have that comfort level with,

that high level of security. BY MS. MAURER: Q Are these security concerns that prisons are

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Yes. They are administrative concerns. Any

prison or any jail says we have a lot of people coming in, now we are going to ma e decisions about who goes where, who goes into the single cell, the maximum security and the minimum security, and it helps do that better. Q Can you describe for the jury what your procedure

actually is when you do a prison adjustment assessment? A Yes. The prison adjustment assessment is based on

the cornerstone for pretty much all classification models, which loo s at primarily past patterns of acting out or delinquent behavior in similar settings. So in a jail, if a person has been in jail for a while, you loo at the prior jail records. If a person has been in

and jail record before that for their patterns of behavior. Is the severity high? Is the recency high? Is the frequency high of criminal behavior, acting out behavior,

prison for a long time, you loo

loo ing at when loo ing at the guidelines?

that they don't thin

is going to adjust well and will need

at the prior prison record

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problematic behavior? There are additional factors that play into it and you would loo at, for example, are they gang affiliated? Are they drug addicted? Are they an older inmate?

of disruptive behavior while in the time that they have

outside to past patterns of behavior.

assessment, what are you actually trying to determine?

have adjusted and then you're having those additional factors that I mentioned. Also they have a drug problem, also they're young or old, and then you are using that to ma e decisions. In this case I'm ma ing a statement about how I thin a person is going to adjust. In a prison's case they would say they need to be in a single cell, they need to be double handcuffed or have a double escort, these types of decisions. Q A How did you get involved in this case? I was as ed by Terry Lenamon, the attorney, to do

an evaluation. Q A Are you being paid to be here? I hope so, yes.

You are trying to ma e an assessment of how they

When you are loo ing at those factors in your

been incarcerated. If you don't loo

But the primary factor is to loo

at the past patterns

at that, you loo

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rates for your field? A Q A Yes. I'm not quite sure how you could not be. Have you ever wor ed for the prosecution before? Yes. I have done some evaluations, not testified,

but done evaluations in Georgia. Q Have you testified as an expert in court

previously? A I have. My first testimony in court was in 1976

or '75. My first testimony in Florida was in 1978. Q A In what area were you testifying as an expert? In the Florida case, it was in prisoner

adjustment. In the other cases, I'm not really sure. I testify in those areas where a clinician frequently testifies. That could be giving a psychological test, it could be prison adjustment. The area of prison adjustment is probably the one where I'm called upon the most often. Q expert? A I testify at least, I would guess, three or four How often have you testified in court as an

times, five times in a month, and have a similar level for the last 30-odd years. Q A Do you testify in more than one state? Yes. I have testified in over 30 states, and I

To your

nowledge are your rates the standard

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have done and am doing several federal cases now. Q before? A No. MS. MAURER: Judge, at this time I would offer -(Omission). BY MS. MAURER: Have you ever not been certified as an expert

A Q

Yes.

a chance to tal to Grady? A Q I have. Have you had a chance to review documents with

regard to Grady's case? A Q Yes, I have.

have loo ed at? A

The records I have reviewed are the records that I

requested the attorney to request from the Department of Corrections in the jail, which are his DOC and jail records that they summarize his behavior, a few other things such as movement and the li e, but essentially his behavior during incarceration.

records?

To your

nowledge did you review all of his jail

Can you tal

to us a little bit about what you

-- let's go on and tal

O ay. Dr. Fisher --

about Grady. Have you had

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Q A Q A Q

And when you met Grady, did you interview Grady? Yes. How many times did you interview Grady? Three occasions. And can you estimate for the jury how long total

you tal ed to Grady? A

Well, each session is over an hour, but less than

two, so six hours or so, five or six hours.

were spea ing with him? A

How he is doing in his case, in jail.

In other words, what misbehaviors does he have and since there so frequently are those misbehaviors, you get the detailing of it that can give you more information about their ta e on it or more information about how it was

Q A

Does Grady's age matter? Yes. Most classification systems that I am aware

of, I can't thin of one that doesn't have in there age as a factor. With the position and the research showing that younger inmates tend to be more problematic. He's in his 50s.

document these things. Do jails document misbehavior by an

I want to tal a little bit about how jails

disposed of or any of those

inds of things.

What sorts of things were you loo ing for when you

As far as I

now, yes.

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inmate? (Omission). THE WITNESS: Yes. Jails document pretty much everything. But, yes, they certainly document disciplinaries. BY MS. MAURER: Q How do they document? What do you mean, when you

say disciplinaries? A Disciplinaries are a misbehavior that is written

up but again, given a formal designation. In other words, you have disciplinaries for getting in a fight. Disciplinaries for not being in line properly at lunch. The whole continuum of behaviors of concern to a jail administration. Q Is a disciplinary report the same thing as a

disciplinary -- in certain places? A Yes. Well, you get a disciplinary. I got in a

fight, I got a disciplinary. The disciplinary report is then written up. Q The disciplinary report is a result of the

disciplinary -A Q Correct. Are there any other sorts of reports that jails do

to document inappropriate behavior or not rule following in a jail?

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Yes. Well, for a given discipline, you have the

computer sheet which will show a disciplinary, when it happened and what it is. You have a separate thing -- but that's a computerized version, and then you have a written up incident report that will have the officer said I was coming down the wal way and saw this happen. In many cases, depending on the disciplinary, you'll have a follow-up in which in case there's a grievance proceeding where the inmate may say, no, I didn't do this or yes, I did and then the response is given, we find you guilty or we find you not guilty. That would be for the higher level. That wouldn't be given if you were not standing in line properly, but that would be given when you have something li e a fight. Q A Q And all these things are documented? Yes. Can you describe what sorts of behaviors jails do

give disciplinary reports for? (Omission).

behaviors that would be of concern to a school teacher. THE COURT: Let me just interrupt you, Doctor. I thin what we should do is direct this inquiry to Florida jails and/or Florida facilities to ma e it relevant to this

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THE WITNESS: Yes. I thin

I have described the

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case. Can you do that, Doctor? THE WITNESS: Yes, I can. BY MS. MAURER: Q Let me rephrase the question. In your experience

in Florida jails and prisons, what sorts of behaviors do inmates typically get disciplinary reports for? A Yes. Based on my review of Florida's

disciplinaries over many years and many prisoners, they give disciplinaries for misbehaviors starting from not showing up to an assignment on time, not standing in line on time, not getting bac in your cell when requested to, through the more -- the higher level disciplinary, such as possession of contraband. The contraband could be a drug, the contraband could be a weapon. These types of things and then at the higher level you have threatening to riot, trying to escape, beating up another inmate. You have that whole continuum and within that there are

summarizes the continuum. Q So are there disciplinary reports given for

behaviors that are both serious and mild? A Q Yes. So based on your interviews with Grady and your

review of all the documents from the jails, how many

obviously lots of gradations. But I thin

that that

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disciplinary reports has Grady had? A He has had no disciplinary reports in his current

incarceration, the last six years or his incarceration

Based upon the research you have done in this

case, have you reached an opinion with a reasonable degree of psychological certainty as to how Grady will continue to adjust to prison and jail? A Q A adjusting. Q A Shifting topics a little bit. What is a red suit? A red-suited inmate, the ones I frequently visit, Yes. What is that opinion? That he'll continue to adjust the way he has been

is a designation, it's a classification for inmates either have gotten in so much trouble that they are red suited or -- and, again, I'm spea ing about in the jail. This is not a prison statement. In the jail red suited means you have gotten there either based on multiple infractions or notoriety of crime. Q How can you compare the security measures the jail

gives for a red suit person versus a person who is not in a red suit? A It's one of the highest levels of security and

classification. So it's what I described before, they have

before, which I believe is bac

in '93, '92, '93, '94.

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the tallest walls, the single cell, the most detail for movement, security during movement, these types of things.

A Q A Q

Well, he's red suited, yes. Do you now why he's in a red suit? Because of his crime. Is he in a red suit for any reason for his

behavior since he's been incarcerated? A In my opinion he couldn't be because he doesn't

have disciplinaries. Q A Q A He could or couldn't be? Could not be. O ay. He would have had to have earned his way there

through that route. Q A Q prison? A Well, the main difference is that the jail Jail and prison are two different places? Yes. Can you describe some differences between jail and

population is transient. you are still going to trial or

So, the prison has the advantage of having it's ind of security somebody -- it's custody and security set up for a longer term.

coming bac

to a trial. So it's transient. Prison is not.

Do you now what Grady's classification is?

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Frequently both the inmates and the staff that are there, everything is sort of set up in sort of the long-term whereas jail, a lot more movement around, lot more of, oh, I'm going to court I'll be leaving here. It's much harder to do a classification that is the same because the population is always changing.

He's been in jail for the last six years, since

In your opinion where is it more difficult to

adjust and follow the rules and maintain the behavior? (Omission).

prison when he goes to prison?

been adjusting as well. If anything, it's going to be a better environment for him to adjust well to. Q A Why is that? It's the same, all the way down the road. So it

doesn't have the transient population. In terms of classification, they have a much greater ability to put people of similar age and however they want to do the classification effectively, that can be done in prison a lot more easily. Q Are you aware of why Grady is in jail?

I thin

he will continue to adjust the way he's

Dr. Fisher, how do you thin

Where do you now is Grady now, jail or prison?

Grady will adjust to

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A Q

Yes, I am. What is your opinion of the fact that he has

adjusted so well to jail when he has -(Omission). Q What is your opinion of Grady's arrest and his

adjusting so well? Can you offer an explanation? (Omission). Q Can you describe Grady's behavior in jail, to your

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or inmates? A Q He has not. Do you now if he's had any verbal aggressive

behavior with guards or inmates? A Q A Q He has not. Do you now if he's violated any rules? He has not. Do you now if he's been in trouble for shouting

or disobedience? A Q He has not. Do you now if he's had any trouble following

directions or subordination? A Q He has not. Do you now if he's been uncooperative with guards

or inmates? A He has not.

nowledge? Do you now if he's had any fights with guards

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other minor offenses you mentioned earlier? A Q He has not. Earlier, you indicated you had did a study, can

you remind us how many individual prisoners you did assessments on in the research you did? A In the Alabama study and then reclassification of

Alabama's prisoners, we had a total of 4,000, being 3,000 from the prison and a thousand coming into the prison. Q Do you still do individual assessments on the

individuals? A Q A Q A Q Yes, I do. How often do you do that? Again, I do a couple or more each month. And for how many years have you been doing that? 33. And I'm bad at math. Can you have add up an

estimate of how many total prisoners that has been that you have done a prison assessment on? A Well, I do a few a month. 12 times 30, so over

thousand, I guess it comes out around 1300.

Yes. The 4,000 was just sort of a, whatever you

would call it, a crash course. It was the federal judge

O ay. Is that on top of the 4,000?

anything minor li e being late for dinner or some of the

Do you now if he's been in trouble for

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saying I want you to reclassify all of Alabama's prisoners. We did. We met with each of them individually, but that was every day all day long.

(Omission). Q Out of your experience with all of those inmates,

how frequently do prison or jail inmates get a disciplinary report if they have been there longer than a year? (Omission). Q A Q A Q that -(Omission). A Q None. And in your recollection and in your experience of an How long has Grady been in jail? He's been incarcerated since 2005. How many years is that? He's in his sixth year. And how many disciplinary reports has he had in

inmate with a cleaner record? (Omission). MS. MAURER: I have no further questions. (Subsequent proceedings were reported but are herein omitted at the request of the ordering party).

with all of the over 5,000 prisoners, can you thin

So we are tal ing about 5300, approximately?

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CERTIFICATE OF COURT REPORTER

STATE OF FLORIDA COUNTY OF MIAMI-DADE

I, BRYNN DOCKSTADER, Court Reporter for the Circuit Court of the Eleventh Judicial Circuit of the State of Florida, in and for Dade County, DO HEREBY CERTIFY, that I was authorized to, and did, report in shorthand the proceedings and evidence in the above-styled cause, as stated in the caption hereto, and that the foregoing pages constitute a true, accurate and correct computerized transcription of my report of said proceedings and evidence. IN WITNESS WHEREOF, I have hereunto set my hand in the City of Miami, Dade County, Florida, this 8th day of February, 2011.

________________________ Brynn Doc stader, RMR