UNITED STATES OF AMERICA et al v. MICROSOFT CORPORATION

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. DARRYL M. WOODFORK, Defendant ................ : : : : : : : : Criminal No. 06-182 May 22, 2008 9:30 a.m. ............

TRANSCRIPT OF MITIGATION HEARING BEFORE THE HONORABLE JAMES ROBERTSON UNITED STATES DISTRICT JUDGE APPEARANCES: For the United States: MICHAEL BRITTIN, AUSA RACHEL CARLSON LIEBER, AUSA UNITED STATES ATTORNEY'S OFFICE 555 Fourth Street, NW Washington, D.C. 20530 MITCHELL MARK SELTZER, ESQUIRE 717 D Street, NW Suite 310 Washington , DC 20004 [phone] GEORGE ALLEN DALE, ESQUIRE LAW OFFICE OF G. ALLEN DALE 601 Pennsylvania Avenue, NW Suite 900, North Building Washington , DC 20004 [phone] Court Reporter: REBECCA STONESTREET, RPR, CRR Official Court Reporter Room 6511, U.S. Courthouse Washington, D.C. 20001 [phone]

For the Defendant:

Proceedings reported by machine shorthand, transcript produced by computer-aided transcription.

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INDEX

WITNESS HANS SELVOG, Ph.D. By Mr. Seltzer By Ms. Lieber

DIRECT 5 --

CROSS -15 -27 --

REDIRECT 19 -31 ---

RECROSS ------

VICTORIA STARBUCK, Ph.D. 20 By Mr. Seltzer -By Ms. Lieber RICHARD RESTAK, M.D. By Mr. Seltzer 33

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PROCEEDINGS COURTROOM CLERK: This is criminal case number 06-182, Michael

United States of America versus Darryl Woodfork.

Brittin and Rachel Lieber for the government, George Allen Dale and Mitchell Seltzer for the defendant. THE COURT: This is an interesting proceeding. This is

a mitigation hearing in a case in which the classic reasons for mitigation hearing no longer applies. But we are nevertheless -- frankly, reviewing Mr. Woodfork's case makes me wonder why we don't have mitigation hearings like this in every criminal case. Because every

criminal defendant or most criminal defendants have histories, backgrounds, pathologies that perhaps should be taken into account as we enter the new world of -- or the old world of 3553(A) and really consider the nature and circumstances of the defendant. So I will be very interested to hear what the defense has to say. And Mr. Seltzer, are you going to lead this? Yes, I am, Your Honor.

MR. SELTZER: THE COURT:

You may proceed. Just as a preliminary matter, so the This is a little bit

MR. SELTZER:

Court -- I don't do anything wrong here. different. I did file the reports.

There's a total of three

witnesses; each has either a doctorate or a medical doctor degree. The way I wish to proceed, if it's okay with the Court,

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I will simply show them the exhibits that have already been filed. I don't think we necessarily have to move them into I think they're already on file. Just so they

evidence.

identify those.

And that will probably shorten the number of

questions I need to ask to qualify them, et cetera. So unless any party has an objection to that, I would -THE COURT: I frankly don't think you have to worry This is almost like written direct

about qualifications at all.

testimony tendering your witnesses for cross, as we sometimes do in civil cases. So what I would like you to do is to make short

work of the direct, but just focus on, if you will, the bottom line, the executive summary, and then allow the prosecution to do whatever cross they want to do. MR. SELTZER: All right. I'll sit down, Your Honor. I

was wondering about that. cover.

Because frankly, we do have a lot to

But with that in mind... THE COURT: I'm just urging you to cover it quickly,

that's all.

Because you have filed a lot of paper. Right. A lot of it is somebody's

MR. SELTZER: resume'. THE COURT:

Go ahead.

Do it your way, Mr. Seltzer.

I'm not going to stop you except for lunch and dinner. MR. SELTZER: forward, please? All right. Dr. Selvog, would you come

Will you please take the witness stand?

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(Oath administered by Courtroom Deputy.) (HANS SELVOG, Ph.D., DEFENDANT witness, having been duly sworn, testified as follows:) DIRECT EXAMINATION BY MR. SELTZER: Q. Dr. Selvog, would you state your full name for the record

and spell your last name for the reporter, please? A. Q. A. Q. A. Yes. Hans Selvog, last name is S-E-L-V-O-G.

What is your highest level of education? I have a Ph.D. in the field of social work. And do you have a specialty within that area? Yes. For the past 25 years I've been practicing in the area

of forensic social work. Q. A. Is there another term for that area? Well, I'm a licensed clinical social worker, and I've also

practiced -- I'm a licensed sex offender treatment provider in Virginia. Q. Have you ever testified before in any death penalty or other

serious criminal cases? A. Q. A. Q. Yes, I have. Approximately how many times? Approximately 50. Could you just name quickly some of the courts, including

federal courts, that you've testified in? A. Well, I've testified all over the country. Locally I've

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testified in D.C. Superior Court, also federal courts in Virginia, both Richmond division and Norfolk division, Southern District of New York. among others. Q. Have you ever been qualified as what's currently referred to I've testified in federal courts there,

as a mitigation specialist? A. Q. A. Q. Yes. And approximately how many times? About 50. And just real briefly, can you tell us what a mitigation

specialist does? A. Yeah, a mitigation specialist is a role in death penalty

cases that's defined by the ABA standards for defense attorneys as someone who is qualified to do background and social history development to look at how someone was raised, influences on their development and influences negatively or positively on the outcome of the current offense. Q. In this case were you retained by myself and Mr. Woodfork to

perform such an investigation? A. Q. Yes. Would you briefly describe what investigation you did Again, the Court does have the material so you can be

conduct?

fairly brief on it. A. Yes. Primarily it consists of two areas. One is just doing

interviews, personal interviews of the family members and the

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client, and also gathering documents, records, on the client, and reviewing those, analyzing those. Q. Were there any specific records that you focused on that I

believe were included as an addendum to your report? A. Yes. Primarily the most comprehensive documents were

North Carolina, both medical records and -- I'm sorry, I'm sorry. Educational records and mental health records from The school records were beginning in the

North Carolina.

6th grade through the 10th grade; they also summarized his D.C. school career here. And the second set of records are mental health records that included some of the psychological/educational testing that was done, and also some of the clinical treatment he received there in North Carolina. Q. Would you please summarize for the Court the findings you

reached in each individual area? A. Yes, I'll be brief. The first area was -- the first finding

was we learned that leading up to Darryl's mother's pregnancy with him, there was a very conflictual relationship between she and her husband. She was under a great deal of stress. There

was a lot of stress around whether or not the husband even wanted the mother to have the child and wanted her to abort the child, and there was also a lot of violence occasionally between the mother and the husband reported by the family. During the actual delivery, she had a brain hemorrhage,

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and again creating even more stress to her and to her baby. That was the first critical finding. Second was in his infancy, the separation lingered, and divorce, and again, there was a lot of stress on the mother; again, occasions of violence in the home eventually that led to a divorce. And then Darryl's mother was single, had to find a

way of supporting economically, finding income to support her infant and her two older children who are eight and nine years older than Darryl respectively. That was the third finding.

Early on in the school records it shows that the fourth finding was that Darryl had a very difficult time, had some learning problems in school. He failed the first grade, barely

passed the second grade, and there was noted in the records a huge number of absences. I think the first time he tried first

grade it was 46 absences, and the second time was like 26 absences. And when the school contacted the mother about these

absences, she was surprised about these absences, like she wasn't aware of them, but obviously indicated that whatever was going on, whatever struggles she was having making a living to support her family, she was not able to get her young child Darryl to school. Q. So at some point did the family choose to relocate to try to

improve things? A. Yes. When Darryl was in the 6th grade, 12 years old, they

moved to North Carolina to remove him from the difficulty she

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was having with her teenage son and daughter that were having an influence on Darryl, which included substance abuse, cocaine and alcohol abuse among those teenagers, also some criminal behavior of the older teenage son. Q. What interaction was Darryl having with the older siblings

at that point? A. Well, the record shows he was quite close and in very close

proximity and influenced and exposed to a number of unhealthy behaviors, including substance abuse, criminal behavior, behaviors of violence and aggression during those young years. Q. Were there any specific instances that you were able to

chronicle in regards to the substance abuse and alcohol area? A. Yes. Darryl recalled, and his sister confirmed, that when

he would skip school as a six, seven, eight-year-old with his older teenage siblings, that there would be alcohol, they would be abusing drugs. There would be alcohol in the home, and he

ingested alcohol and became extremely intoxicated and lost consciousness because of it at a very young age, which is very detrimental to one's brain development. Q. A. Did that happen fairly regularly, as you understand it? As I understand it, it happened regularly. I think I

estimated maybe once a month for several years. Q. Was Darryl eventually referred for any testing through the

schools, psychological evaluations and things of that nature, in North Carolina?

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A.

Yes.

Once he got to North Carolina, two years later -- the They were in

family moved around a little bit those two years. one county and then moved to a second county.

They were in

Halifax County and then moved to Roanoke, Rapids City school district, a different school district, and because of Darryl's difficulties in school and behavior problems in school, they had him tested. And the psychological and educational testing

showed that he was in the borderline to mild retarded range in his cognitive abilities, intellectual abilities, and that that was a full scale IQ of 71 and a verbal IQ of 68, I believe, or 62. Q. A. What does a verbal IQ of 62 indicate to you? That he was having a number of troubles with communicating,

with talking, with struggling with how to formulate written expression, writing, things like that. Q. In fact, is it correct or not that 62 would actually be a

full range of impaired, or back in the day it was referred to as retarded? That's no longer an acceptable term. But as far as

verbal, is that accurate, a 62 would be actually diminished? A. Q. Yes. And that was based on not just one evaluation, but on Is that fair to say?

several that you included in your report. A. Q. That's correct.

Now, I guess as a further point, was he put into any kind of

special ed or anything like that that you're aware of?

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A.

Yes.

After those -- I'm trying to think of the date. After that

But

after -- I think he was in the 8th grade.

educational and psychological testing, it was recommended that he be put into a special education program, and he was. stayed in that program for the next two years, into the 10th grade. Q. At some point did the family move back to the District of And he

Columbia? A. Yes. When Darryl was approximately 18, maybe going on 19,

they moved back to Washington, D.C. because of the older sibling, his older brother's failing health. Q. Can you give us some detail on the brother? I know you did Can you

put quite a lot of detail in the report on that.

briefly summarize the situation that Maurice Woodfork had? A. Yes. Gerald Maurice Woodfork, Junior, just briefly, was a

hemophiliac since age eight or nine, and at some point was diagnosed with HIV/AIDS as well and had struggled with that most of his life. He was also behaviorally very troubled,

emotionally very troubled, which may be related to those diagnoses, or probably was related to those diagnoses. the record indicates that. At least

And had a history of substance

abuse, had a severe cocaine addiction from early teenage years into his -- up until the time he died. Also with alcohol abuse,

and also had criminal history as a teenager and as an adult. Q. The reporter has asked me to just ask you to slow down just

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a notch, even though I think we're all getting it. little difficult for her. A. Q. Okay.

But it's a

What was Darryl's relationship with his brother during that

period of time? A. Well, Darryl has always had a close relationship, at least

in proximity, for the most part, and spent a lot of time with his older brother. He cared about his older brother. The

records indicate that he was upset about his older brother's illnesses, and that his older brother did not take care of himself and continued to abuse substances. Q. What effect did that have on the family unit, if you can

answer? A. Yes. Again, the record shows clearly that it had quite a

negative effect in the home, the older brother's illnesses and his substance abuse behaviors. times, threatening at times. He was aggressive, suicidal at And Darryl, which is consistent

with what all the records say about Darryl, that he was easily distracted by things in his environment because of his attention deficit issues and learning issues. And so this had a negative impact on him. Q. Did the family make any attempt to separate the brother from

the rest of the family to protect it or not? A. Well, they made some attempts along the ways, but they But yeah, there were some

weren't always successful to do that.

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attempts.

I mean, his mother was concerned about him, had him

committed to inpatient substance abuse treatment for I think several weeks. Q. Around the time of the brother's death, or shortly

thereafter, was there any notable change in Darryl's behavior? A. Yes. That was roughly when Darryl began a serious -- began

to get in serious criminal trouble, committing criminal offenses. Q. I noticed in preparing your report, and I'm sure previously

you've reviewed quite a few studies, most of them were done by the Department of Justice dealing with risk factors. correct? A. Q. That's correct. Could you give us a brief discussion, as you did in your Is that

report, starting with what's called individual risk factors? A. Yes. There was a metaanalysis -THE COURT: me, Mr. Seltzer. questions. MR. SELTZER: BY MR. SELTZER: Q. What were the primary individual risk factors, as you see Okay. Brief discussion sounds like a narrative to Ask him a couple of leading

Lead him.

them? A. Was the natal and birth stress and problems with the

pregnancy, and the issues going on in the home causing the

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stress on the mother was one of the significant ones.

Also his

learning problems and his diminished cognitive abilities. Q. Was there any effect due to his relationship with his

brother and/or the alcoholism issue? A. Yes, that also was a cause and effect point, that his

siblings had a corruptive influence on his young school years. Q. In a related area, what would you see as the key family risk

factors, again just in outline form? A. Yeah, the family risk factors were the violence between the

mother and father early on, the struggle she had to support the children on her own, the substance abuse and criminal behavior of the older siblings in the home. Q. So what do these studies tell you? What is the likely

result of these type of factors? contribute to behavior? A.

I mean, how does that

Well, when there are these many factors that I outlined on

my report in an individual's life, it's highly predictive of later -- the possibility, the high probability of later violence in a person's life. Q. And to your knowledge, was he ever treated or did he ever

get any kind of training or medication for Attention Deficit Disorder? A. No, he did not. MR. SELTZER: THE COURT: I'll pass the witness, Your Honor.

Thank you, Mr. Seltzer.

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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 BY MS. LIEBER: Q. A. Q. Good morning, sir. Good morning.

CROSS-EXAMINATION

In reviewing your report and listening to your testimony, I

just have a few follow-up questions for you. Having gone through all of the various factors that you discussed in that report, I focused at page 18 of your report on the actual bottom line, the summary conclusions that you reached. And what I thought was notable was that you said Is that fair to

basically the odds were against Mr. Woodfork. say? A. Q. Yes. Okay.

And the odds that were against him were the prenatal

injuries suffered by his mother, the sort of difficult family circumstances that he had, the polysubstance abuse, some mental health problems, and learning disabilities. of encapsulation of -A. Q. Yes. At the same time, what you say -- your leading statement in Is that a fair sort

the summary conclusion is that despite the many obstacles that faced Darryl growing up, there were moments where he tried to fit in and become part of society. A. Q. That's correct. So, for instance, he held a job as a plumber for some time? And that's right, he did?

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A. Q.

Yes. And he also held a job for an even longer period of time,

working six days a week from 7:00 a.m. to 7:00 p.m. as a tow truck operator? A. Q. Yes, ma'am. And actually chose to leave that job to take a different tow

truck job? A. Q. A. Q. A. Q. Yes, ma'am. And I think he also worked in an auto parts store? Yes. And took some community college classes? Yes. So even though he did have this sort of background that no

one is challenging or questioning in terms of the very difficult environment in which he was raised, and the actual physical injuries, he did show signs of being able to be a productive member of society for chunks of time? A. Q. Yes, ma'am. And so it's fair to say, sir, isn't it, that regardless of

sort of these truly mitigating factors, with respect to an ultimate sentence, you're not in any way suggesting that Mr. Woodfork is not criminally responsible for the murders that he committed? A. Not in any way. MS. LIEBER: Court's indulgence.

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THE COURT: questions --

Dr. Selvog, let me ask you a couple of

THE WITNESS: THE COURT:

Yes, sir. What we are

-- that occur to me.

considering, of course, in the case of Mr. Woodfork is what the sentence has to be for the crime to which he has pleaded guilty. And the sentencing range, the guidelines range goes up as far as life in prison. Does your discipline and/or your study comprehend any predictive conclusions about what might become of a man like Darryl Woodfork who spends 20, 30 years in prison? THE WITNESS: Yes, sir, I appreciate that question.

I'm aware in the field that most individuals like Darryl who have committed violent offenses, even who serve long terms of imprisonment and are eventually released, usually do very well in recidivism, in terms of violence recidivism is minimal. THE COURT: Is that just a function of age, or does it

have something to do with the particular profile of this offender? THE WITNESS: Well, it certainly is a function of age,

and it certainly is a profile of this particular offender. Because as the reports indicated, the evaluations when he was a child and a teenager, they all recommended structure, and that he would benefit from structure and a more controlled environment. And that's what he will receive in the prison

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setting, and hopefully he would take advantage of some of these programs. THE COURT: Well, understood that prison is a But I'm asking you to postulate the

structured environment.

return to an unstructured society of somebody with Darryl Woodfork's psychological profile and mental capabilities, who has spent all these years in prison. THE WITNESS: Now what happens?

Well, in my experience, 25 years or more

in this field, and the individual, Darryl, looking at the context of the family that he would re-enter, I mean, his older brother is deceased, no longer a factor, his older sister has changed dramatically and has made significant changes and progress in her life to be stable, working jobs, going to school. The mother now is more stable in her life. They're

living -THE COURT: 30 years? THE WITNESS: THE COURT: 30 years? THE WITNESS: Yes. But they'll be changed and stable. Well, good point, Your Honor. How old is the mother going to be in

How old is the sister going to be in

So there's no predicting, but I think Darryl would, given that context, given his own -- the extensive time, he would have a chance to change and reflect and make something of his life, which most of the men I've dealt with in the 25 years

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do.

And they establish relationships even in prison that are

very meaningful and very stable once they're released. MR. SELTZER: If I could just ask a quick follow-up,

hopefully to aid the Court on that. REDIRECT EXAMINATION BY MR. SELTZER: Q. I know you didn't include this in your report, and hopefully

we'll address this separately, but are you aware whether Darryl is married or not? A. Q. A. Q. Well, yes, he is. And does he have young children? Yes. And are you aware of what kind of relationship he's

maintained with them both prior to and since he's been incarcerated? A. Q. Has he had a positive relationship?

Yeah, he cares about his children very much. Does that add at all to your equation of a predictor of

ability to re-enter society, albeit in a fairly long period of time? A. Yes, that contributes positively to his goals while he's in

prison. Q. Okay. Thank you. THE COURT: All right. Dr. Selvog, thank you. You may step down, sir. I think

that completes your testimony. THE WITNESS:

Thank you, Your Honor.

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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 Honor.

MR. SELTZER: from the witness room?

Your Honor, may I get the next witness

The defense calls Dr. Victoria Starbuck. (Oath administered by Courtroom Deputy.) (VICTORIA STARBUCK, Ph.D., DEFENDANT witness, having been duly sworn, testified as follows:) DIRECT EXAMINATION BY MR. SELTZER: Q. Dr. Starbuck, would you please just state your name and

spell your last name for the reporter, please? A. Sure. It's Victoria, middle initial N, last name is

Starbuck, S-T-A-R-B-U-C-K. THE COURT: You have the advantage, Ms. Starbuck, of

having a name that every American can spell. MR. SELTZER: She's a 50 percent shareholder, Your

BY MR. SELTZER: Q. The Court does have your CV, so I won't go into it at But could you just tell us what your highest degree

length.

was, in what area, and also list your post Ph.D. training? A. Yes. I have a Ph.D. in psychology, I did a clinical

residency/internship at the Baltimore Veterans Hospital, and completed postdoctoral training in clinical psychology from George Washington University. Q. And are you licensed in any of the local jurisdictions?

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A. Q. A. Q.

Yes. Which ones are those, please? In the District, in Maryland, and Virginia. And have you testified previously as an expert in any

criminal proceedings? A. Q. A. Q. A. Yes, I have. Approximately how many times? Approximately five times. And which courts were those in, if you recall? Three of them in the District and two federal courthouses in

Maryland. Q. Now, in this case you were basically retained by the defense Is that right?

to do a neuropsycho evaluation of Mr. Woodfork. A. Q. Yes.

Again, the Court has your report so I won't keep you on But could you just describe first of all the procedure,

long.

the investigation that you followed? A. What I do for the neuropsychological evaluation is basically

to evaluate cognitive functions, including things like level of intelligence, attention, processing speed, language abilities, in addition to psychological aspects of functioning, looking for possible depression or anxiety or other psychological factors. Q. And in the case of Mr. Woodfork specifically, without

listing every test, could you just tell us what type of testing regimen you conducted and on what occasions?

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A.

I saw Mr. Woodfork on three occasions, two in 2006 and one

in 2007, and conducted a very thorough neuropsychological evaluation of him, looking at basically his attention, his level of intelligence, his learning, memory capacities, language function, central executive function, and various motor tests and psychological testing. Q. In the area of intelligence, what results and conclusions

did you reach in that area? A. Mr. Woodfork came out with a full scale intelligence score

that is in the borderline range, which is -- the actual number was 79. That's one step up from the extremely low range, which

is the lowest range of classification. His verbal IQ score is 75, which is also in the borderline range, and his performance IQ score is 89, which is in the low average range. Q. And can you just briefly educate us as to -- it seems like

there's a fairly wide gap between the performance IQ and the other two numbers. A. There is. What does that indicate?

That difference between his verbal and

performance IQ is significant, and basically points to his deficits in verbal processing which were also noted at previous evaluations that he had as part of his education and other psychological evaluations, and consistent, generally consistent, with his performance in school. Q. Are you aware also of -- did he have any -- well, you

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reviewed some previous reports, previous tests that were done in North Carolina by various evaluators. A. Q. A. Q. Yes. One specific one, a Dr. Fuchs? Yes. Can you compare your results to those of Dr. Fuchs, and sort Is that correct?

of explain any differences, if there are any? A. At the time Dr. Fuchs saw Darryl, he was considerably so he was administered a

younger - I think it was 1991 -

different form of the intelligence test which would have been appropriate for his age at that time. His scores came out actually pretty significantly lower than they did at the time that I saw him, but the overall pattern was consistent. What I mean by that was that his verbal

IQ was significantly lower than his performance IQ at that time. Q. Now, at that time I think he had a verbal IQ as low as 62.

What would that mean to you? A. 62 is in the extremely low range, which is the lowest range

of classification for intelligence, and would place him at about the very lowest end of the first or second percentile of the normal, general population. Q. Okay. It's an extremely low score.

Did you perform any tests related to what they call

central executive functioning? A. Q. Yes, I did. Can you just briefly explain to us what central executive

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functioning means? A. Certainly. Central executive functions are sort of higher

order cognitive abilities that allow us to plan and organize information that permit mental flexibility and generally monitor and control our impulses and our behaviors. And the central

executive functions are mediated primarily by the frontal lobes in the brain. So I did a number of tests to look at central executive functioning. Q. A. I did a whole battery of executive function tests.

What is the name of that battery of tests? It's called the Delis-Kaplan Executive Function System, and

it's a battery that is designed specifically to evaluate executive functions, very well normed and relatively new. Q. A. Q. It's commonly called the DKEF? The DKEF. Right.

Are you aware of how accurate those tests are considered to

be, based on the studies? A. Well, as I said, it's very well normed. The population

where they derive the norms consisted of over a thousand individuals ranging in age from eight to 89. it's very well documented. Q. What were Darryl's results on the DKEF battery and the It's published,

related tests? A. Darryl performed in the impaired range on just about every

single measure of central executive functioning that was

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administered.

He demonstrated difficulty with mental

flexibility, planning and organization, concrete responses to various kinds of verbal tests of executive function, and he also had difficulty inhibiting his responses on several measures. Q. Would that lead you to draw any conclusions about his

ability to inhibit behavior, specifically negative behaviors? A. Well, that would suggest that he did have difficulty with I mean, the tests results are

response inhibition.

generalizable to some extent. Q. Okay. Did you perform any tests for what's now called ADD,

or Attention Deficit Disorder? A. Q. A. Yes, I did. Could you just tell us the results of that test? Certainly. I did several tests for attention, broadly

speaking, and one test in particular that is often used to diagnose Attention Deficit Disorder. It's a test that's

administered on the computer, it's called the Conners' Continuous Performance Test. And Darryl's performance was

impaired in several aspects of attention, but in that test in particular he demonstrated a classic pattern of results that is consistent with Attention Deficit Disorder. Q. As far as you know, what's the accuracy rating on those

tests, or the likelihood that they predict ADD? A. It's - well, I don't want to keep saying the same thing What the test

extremely well normed, well published tests.

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permits you to do is to compare the person who you're looking at to the normal population, and also compare them to a population of specifically diagnosed Attention Deficit Disorder people, and then compare them again to another population with neurologic dysfunction. What it does is plot the probability that this

particular person matches one of those three populations. And his profile matched the attention deficit group with I think 97 percent likelihood. wasn't just a gray area in that case. Q. And you also had a chance to review some of his school Is that correct? So it was a real match. It

records and interviews and prior psych evals. A. Q. Yes.

Were those consistent with a pattern of behavior indicating

Attention Deficit Disorder? A. Q. I thought so, from what I reviewed. And just briefly, what is the relationship between -- is

there a relationship between ADD and the deficits in the central executive functioning? A. They often do go hand in hand. You can have either

Attention Deficit Disorder or central executive dysfunction, but very frequently if you've got attention deficit, you will also manifest at least some symptoms of central executive dysfunction. Both of those capacities are again mediated by the

frontal lobes in the brain, so it makes some sense that you often see them together in the same person.

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Q.

Did those in combination have any, in your opinion, specific

effect on ability to inhibit behavior? A. Q. I'm not sure I understand your question there. Well, I think you testified as to the central executive When you look at the

function and separately as to the ADD.

overall picture, shall I say, of Darryl, including the ADD and the central executive function, does that lead you to any conclusions as to his ability to inhibit his behavior? A. Yes, it would. I mean, I think he's at a significant

disadvantage in that particular ability because of the Attention Deficit Disorder and also central executive dysfunction. MR. SELTZER: I'll pass the witness, Your Honor. CROSS-EXAMINATION BY MS. LIEBER: Q. A. Q. Good morning, Dr. Starbuck. Good morning. I want to just talk about two basic areas, first

intellectual functioning and then central executive functioning. With respect to his intelligence, you said that his full scale IQ is 79. A. Q. Right. And the next -- and that's considered borderline. Is that Is that right?

correct? A. Q. Right. Is there a margin of error in IQ testing?

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A. Q.

There is. In other words, like plus or minus one or two points,

something like that? A. Q. A. Exactly. And is that the margin of error, generally? Right off the top of my head, I don't know what the exact And it also depends. You can use different

margin would be. criterion. Q. A. Q.

So it can vary a little bit? Yes. And is 80 considered low average? Is that the next sort of

block? A. Q. Yes, that would be the next block. So it's fair to say that while Mr. Woodfork's full scale

intellectual functioning is below average, it may be that he's actually at the very low end of low average? A. Q. A. That's correct. In sort of the broad full scale? Well, that would be with respect to his performance IQ, but

not necessarily his full scale IQ. Q. Okay. Well, I guess what I'm trying to get at is the number

79 is awfully close to 80 -A. Q. A. Right. -- which is the next sort of block in the IQ... Classification.

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Q.

Thank you.

Classifications.

And with respect to central executive functioning, I was reading your report, and I look on page five - again, as I did the previous witness, just sort of the bottom line, the summary and recommendations - and what stood out to me was you're discussing the suggestion of significant difficulty in planning, organization, and initiation and disinhibition of behavior. A. Q. Do you know anything about the facts of this case?

I have read backgrounds. Okay. I mean, in terms of the facts of the criminal case.

I'm sorry, not Mr. Woodfork's personal history, but the actual facts of the crime that we're discussing. A. Q. I'm not -- I mean, I couldn't tell you point for point. Okay. Well, are you aware that he actually -- that

Mr. Woodfork actually got a group of people together, organized other members of his neighbor to retaliate for a shooting? you aware of that? A. Q. A. Yes. That Mr. Woodfork himself was the organizer? Yes. MR. SELTZER: I'm going to object because that's beyond Are

her kind of knowledge, and the record is what it is on who played what roles. THE COURT: I'm going to allow it. I mean, the word

"executive" has something to do with -- I think that's where

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you're going, Ms. Lieber. MS. LIEBER: BY MS. LIEBER: Q.

Go ahead. Thank you.

It is, Your Honor.

That he sort of marshalled a crew of people together to

retaliate for a shooting, were you aware of that? A. Q. A. Q. Yes. That's an ability to organize. Yes. And that in fact over the ensuing 10 days, they planned and Is that fair to say?

plotted retaliation shootings, and basically staked out various locations looking to retaliate against some individuals for that shooting. A. Q. Are you aware of that? I mean, not specifically.

No, not particularly.

And that throughout the course of those 10 days,

Mr. Woodfork was in contact by phone and in person with a number of the other people that he was organizing to conduct this retaliation. A. Q. No. Does that affect your assessment that he has difficulty Are you aware of that?

organizing and planning? A. Well, that's a very good question. I based my assessment on

his test results, which clearly demonstrated difficulty with planning and organization. Q. I guess just finally, Dr. Starbuck, you talk about

disinhibition of behavior, so it's sort of harder to control his

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behavior.

You're not telling the Court that you think that

Mr. Woodfork is not criminally responsible, are you? A. I've never -- that's not part of my report, and that That's not...

wouldn't be something that I would put forth. MS. LIEBER: MR. SELTZER: THE COURT: Okay. Thanks very much.

Just a quick follow-up.

Yeah. REDIRECT EXAMINATION

BY MR. SELTZER: Q. I know you've only briefly seen a criminal outline and don't If I were to tell you that the series of

know all the facts.

events began by one of the victims shooting at some acquaintances of Mr. Woodfork, do you think his deficits would affect his ability to restrain from reacting to that? A. That would be consistent with what I found in his testing,

that it's an impulse response control that is lacking. Q. Okay. Thank you. THE COURT: Dr. Starbuck, I am frankly less interested

in what he did and why he did it than in what if anything your tests tell us about future development of Mr. Woodfork. You

suggest in your report that there's at least the possibility of frontal lobe dysfunction that has to do with overall executive functioning. That is, as I understand it from your report, an Right?

organic brain condition. THE WITNESS:

Correct.

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THE COURT:

And if it exists, is it correctable over What I'm trying to get at, of

Is it modulated over time?

course, is what could we expect of the executive function and disinhibition of behavior and so forth that you've discussed of a man who is 25, 30 years older than he is now, after spending that much time in prison? THE WITNESS: Right. Well, the executive function

deficits are modifiable to some extent with rehabilitation, and that would involve psychological rehabilitation and cognitive rehabilitation to implement strategies and organizational systems so that he's functioning more in a structured fashion. I think that treatment of the Attention Deficit Disorder, which is very treatable, also would result in a significant improvement in his impulse control capacity and general ability to function in a group, in a society. THE COURT: Now -- well, I shouldn't assume anything.

Is the effectiveness of ADD therapy or work on Attention Deficit Disorder and on the structural things you've talked about, is it more effective with younger children than it is with adults? THE WITNESS: It really depends on the individual.

It's hard to predict for anyone in particular how well they're going to respond, but certainly if it's implemented earlier, you have a better chance of effecting a more permanent response. THE COURT: And what if anything do you know about the

availability of Attention Deficit Disorder therapy or the other

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sorts of structural development therapies that you've talked about within the Bureau of Prisons? THE WITNESS: THE COURT: That's outside of my area of knowledge.

Thank you very much, Doctor. You're welcome. Nothing further. We thank the witness. That concludes

THE WITNESS: MR. SELTZER: THE COURT: your testimony. THE WITNESS: MR. SELTZER: Honor. THE COURT:

Dr. Starbuck, thank you.

Thank you. If I might get our final witness, Your

You may. Defense will introduce the testimony of

MR. SELTZER: Dr. Richard Restak.

Would you just remain standing to be sworn, Doctor? (Oath administered by Courtroom Deputy.) (RICHARD RESTAK, M.D., DEFENDANT witness, having been duly sworn, testified as follows:) DIRECT EXAMINATION BY MR. SELTZER: Q. A. Q. Good morning, Doctor. Good morning, Mr. Seltzer. In a loud clear voice, would you please state your name for

the record and just spell your last name, please? A. It's Richard Restak, M.D., last name is R-E-S-T-A-K.

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Q.

The Court has your CV, so I will not go through it in great Could you just tell us your highest degree and where

detail.

you did your internships and residencies? A. My highest degree is a medical degree from Georgetown, and

then I did internship with St. Vincent's Hospital in New York, I did some psychiatry training at Mt. Sinai New York, at Georgetown here in Washington, and I completed my neurology residency at George Washington. Q. A. Q. A. Q. And are you board certified in any areas? Yes. What areas is that? Neurology. Can you give us an estimate of how many publications you've

authored in the area of neurology and related areas? A. so. Well, I do technical writing, which is probably about 15 or And then I do writing which is more broad based for public;

that's 18 books and maybe 50 or 60 articles about the brain. Q. A. How many times have you testified before in a court of law? I think I testify in the average of about maybe two or

three, maybe three or four times a year. Q. So is it fair to say you've probably testified more than

50 times? A. Q. A. Yes. Have you ever testified for the prosecution? In criminal matters?

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Q. A. Q.

Yes. Yes. Can you give us an example of any time you've testified for

the prosecution? A. The Menendez case in California, I was a prosecution witness

in that. Q. And are there any -THE COURT: The two brothers? Yes, Your Honor.

THE WITNESS: BY MR. SELTZER: Q.

Are there any prominent cases in this area that come to mind

that you've testified in? A. Q. A. Q. A. Any what? Prominent cases. For prosecution, a criminal case? For either side. Either side? Well, I was involved in the Kansi case, which That was the man who shot individuals outside

was in Virginia. of the CIA.

I was involved with the Riddick Bowe case, which That's a charge of, I think it was kidnapping

was in Georgia. of the wife. Q.

It was a criminal case.

And I take it you have reviewed Dr. Starbuck's report and Correct?

materials. A. Q.

Correct. And is it fair to say that you were retained in this case to

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do a neurological medical follow-up of her findings? A. Q. Yes. What did your evaluation in this case consist of, just

briefly? A. It consisted of examining some documents, which included It

records from school going back many years, actually.

consisted of -- I mentioned going over Dr. Starbuck's report, as well as some previous psychological reports. In addition, I

looked at other materials and carried out an exam myself of Darryl Woodfork, and then I spoke with his mother and I spoke with his sister. Q. Were your findings generally consistent with those of

Dr. Starbuck? A. Q. A. Yes. Do you have any differences that you would like to express? No differences. In fact, hers were much more detailed and

lengthy, because mine is a little abbreviated form of what we call neuropsychological testing. Q. any? A. Attention Deficit Disorder and some evidence of frontal lobe But they dovetail quite a bit.

Well, in your opinion, what are Darryl's chief deficits, if

type of issues. Q. What would those two diagnoses indicate to you as far as his

ability to disinhibit behavior or affect his impulse control? A. Well, it's a circuit between the frontal lobes and other

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parts of the brain, and it has to do with what we call executive function, having to do with control, seeing the consequences of one's actions, being able to inhibit impulses, as you mentioned before. Everybody gets angry, but the frontal lobe usually

causes us to control our anger. But the biggest issue is the inability to sort of logically and linearly think through the consequences of one's actions. Q. In your opinion, and I know you address this briefly in your

report, was there any kind of treatment he could have had historically or as a teenager that might have helped him improve his impulse control? A. Yeah, what they call medications for Attention Deficit

Disorder would certainly have been helpful, yes. Q. What about going forward, what would you think -- is there

any treatments that would help him going forward to improve his impulse control? A. Well, I think it's still time to use medications that would I think some

help that, attention deficit, and also depression. antidepressant medicines. Q.

Do you know whether that type of medication is effective in

adults as well as younger people? A. Q. It is. One last area. I did notice that at your recommendation we

did conduct an MRI exam of his brain.

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A. Q. A. Q.

Correct. And I believe your report referred to that as negative? Correct. Could you explain what that means and what the significance

of that is? A. Yeah, you do the testing because of the indication of the We have documented at

consecutive head injuries that he had.

least four severe -- you know, pretty severe head injuries; hit with a swing, a bat, things like that. So that, coupled with

his frontal lobe problems that I described earlier, mandated that we do an MRI. The MRI was normal. isn't a problem there. for instance. That doesn't prove that there

It's like a patient who has epilepsy,

We know they have epilepsy, everybody has

witnessed their seizures, yet you can do consecutive brain wave tests, EEG's, and they may be all normal. You don't turn around

and say, well, I guess they don't have epilepsy; you just say, well, it didn't show up on the test. with this MRI. Q. Okay. Thank you, Doctor. I think the government may have a So that's what happened

few questions. MS. LIEBER: for this witness. THE COURT: Dr. Restak, does your evaluation of this Your Honor, we don't have any questions

defendant permit you to make any predictions about what might be

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his profile after 25, 30 years in prison? THE WITNESS: That's a really hard question to answer.

And I don't know whether I'm an expert on being able to answer a question like that. Your Honor? THE COURT: Well, as I have been saying all morning, Could you just be a little more specific,

one of the questions that I have to answer in figuring out the sentence for a man who's already pleaded guilty is I must consider the history and characteristics of the defendant, but I also have to consider issues including protection of the public after his release. And I have to consider what sentences -- if

I had any control over this, and I frankly have very little control over this, what needed educational and vocational training during incarceration should be prescribed as part of the sentence. So I am thinking frankly about the terms and conditions of incarceration, and I'm considering the future and the protection of the public if he's released after a long period of time. Those are what I have to think about. THE WITNESS: Yes, Your Honor. First of all, I think

the medication, as I mentioned; secondly, I didn't go into it in my testimony, but there is a lot of cultural deprivation, a lot of lacking knowledge, fund of knowledge, reading/writing skills. All these things I think will enhance brain function and will enhance his ability to reason and to see things clearly. I also

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think his impulse control will improve. The other point I make when I examined him, and I've seen quite a number of people that have been accused or even convicted of what he's been who showed no remorse or anything, and I got the feeling that there was some remorse about it. that would be another element. That's about as far as I would want to extrapolate, you know, two decades ahead. THE COURT: Thank you. So

Anything further of Dr. Restak? MR. SELTZER: THE COURT: No, Your Honor. We thank the witness. You're excused.

Thank you, sir.

THE WITNESS: THE COURT:

Thank you, Your Honor.

Anybody have any more?

Anything further, Mr. Seltzer? MR. SELTZER: Your Honor, as the Court is aware, we're

currently scheduled for sentencing a week from tomorrow. THE COURT: Yes. Originally I think we had hoped to have a

MR. SELTZER:

two-week gap, and due to various scheduling issues we ended up this way. I can be ready to go forward, but I think given

everything that's come down today, and also keep in mind that a big part of the picture is still not before the Court, which is the 5(k) issue, my preference would be to put it off for say another week.

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I'm not trying to delay this, but I would like to have a chance to digest the government's materials. know where they're going to land. I frankly don't

I expect he'll get a 5(k),

but I don't know where that range is likely to be or what exact factors. So with all that in mind, I think it would make sense for us to have an extra week or so, if it wouldn't inconvenience the Court. THE COURT: The Court is not inconvenienced. As I have

said I think more than once on this occasion, Mr. Woodfork isn't going anywhere and we need to take all the time we need to take for this matter. Mr. Brittin, do you have any objection to extending the sentencing for some period of time? MR. SELTZER: As I said, it doesn't have to be a

lengthy time, and I would defer to Mr. Brittin as to how much time he needs to get his committee to respond. I would note this is still a sealed matter. THE COURT: Well, then, I would note for the record

that one of the people in the courtroom is the wife of my law clerk, who is here by special permission of the Court and who is a student of the subjects that are being testified about. without objection, she's here, and she's under the same constraints that my law clerk is, by the marital privilege or some other rule that applies. I don't know. So

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MR. SELTZER:

We appreciate that. That's fine.

We did have a chance

to briefly speak with her. THE COURT:

All right. Judge, the government can be ready next

MR. BRITTIN: Friday on the 30th.

If Mr. Seltzer feels on behalf of

Mr. Woodfork that he needs some additional time, that would be fine. On the 12th of June, the 13th, Friday the 13th, I will not be available. I'll be in another jurisdiction. And I would

ask if it's convenient for the Court, if it is going to continue the matter, if we could try for a Friday. I have a large number

of other court commitments over the next month so. THE COURT: Yeah, yeah, okay. And I would suggest, if it works for the

MR. SELTZER:

Court - and I expect, of course, that that proceeding won't be as lengthy as this because there will be no testimony - just an extra week I think will make a big difference. the 6th of June. THE COURT: Well, all of us are going to be out in Friday In other words,

Pennsylvania romping around at the judicial conference. the 13th doesn't work. MR. SELTZER: We could meet you out there. No.

Well, I could do it at the beginning of the following week, if Mr. Brittin could live with that. THE COURT: Well, Mr. Brittin wants a Friday, and I'm

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happy to accommodate him.

But the first Friday that I see that Is that too

we could do it would be Friday, the 20th of June. long? MR. SELTZER:

It's acceptable to me, Your Honor.

As

you say, I think under the circumstances my client is not being prejudiced. I would note that I have one -- I would ask that it I have a fairly complex

perhaps be first thing in the morning.

matter in the other courthouse that involves a client that's charged here and there. But at any rate, if we could do it first on your calendar on the 20th, I could certainly manage that. MR. BRITTIN: Judge, I would be available. Mr. Dale,

as you probably know, has a very legendary summer vacation scheduled, and my colleague, Ms. Lieber, is not available on that day. THE COURT: Mr. Seltzer, why don't we just do it on the We can live with that,

date originally scheduled, May 30th? can't we? MR. SELTZER:

I can live with that.

I would just ask

the government to give me a little bit of leeway to review the report. I mean, frankly, I know you have extensive materials I

was going to summarize in a brief sentencing memo and confer finally with probation, also. THE COURT: with May 30th. Let's get it done. We're going to stick

Accommodate each other as much as you can.

Rebecca Stonestreet

[phone]

k i n g r ep o r t e r 2 @ v e r i z o n . n e t

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Let's not string this out. MR. SELTZER: THE COURT: That's fine. Thank you, Your Honor.

Does either side want to comment,

summarize, discuss, or otherwise verbalize what we've just heard? MR. SELTZER: I think the Court has articulated some of To the

its concerns and what you see are the major issues. extent I can, I will try to address those.

Again, I'm going to try to get a brief memo into the Court. THE COURT: Yes, I hope you will focus your sentencing

memorandum and your argument very specifically on 3553(a)(1), history and characteristics, on 3553(a)(2)(c), protection of the public, and on 3553(a)(2)(d), needed educational and vocational training. Those, it seems to me, are the swing issues in

figuring out what is the appropriate 3553 sentence -MR. SELTZER: THE COURT: Yes.

-- for this defendant. I think on the history and

MR. SELTZER:

characteristics you have quite a bit. THE COURT: about it. MR. SELTZER: MS. LIEBER: THE COURT: All right. Thank you. I have a lot about that, yes. No question

Thank you, Your Honor. Thank you. Counsel are excused.

Rebecca Stonestreet

[phone]

k i n g r ep o r t e r 2 @ v e r i z o n . n e t

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(Proceedings adjourned at 10:50 a.m.)

CERTIFICATE OF OFFICIAL COURT REPORTER

I, Rebecca Stonestreet, certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.

_______________________________ SIGNATURE OF COURT REPORTER

_________ DATE

Rebecca Stonestreet

[phone]

k i n g r ep o r t e r 2 @ v e r i z o n . n e t