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Stone v. State11/25/1987
been excluded with the exception of Wilcock, and I don't know how the jury would construe that or could possibly construe that. The request will be denied."
I do not find action or inaction of opposing counsel in the adjudicatory process to be a suitable determinate of "fairness" as a basis for denial to requesting counsel, as here occurred. The essential nature of the witness for defendant as facing an admitted murder charge was obvious. Perhaps counsel could have pursued the request more diligently, but long experience in trial activities teaches that over-diligent pursuit on contested court decisions has an unacceptable trial price in undesired court response. To reverse what is frequently said in affirming appellate cases, the cold, printed page does not realistically communicate what the trial court in person discerns: it does not reveal the practical drama as the trial advocate relates to and is perceived not only by the trial judge but by the jurors. "Methinks thou dost protest too much" has a real and dangerous attribute in trial conduct.
I posture a second reason why a murder-case psychiatric witness should not be subjected to the same exclusion action as is the witness whose testimony is not similarly based on individual character. The communicative factors available to the forensic psychiatrist or psychologist should not be denied by removal from the courtroom, both in relation to the defendant, and, more particularly, by analysis of the comparable opposing testimony of other expert witnesses. Perhaps the denial is not raised to the level of reversible error in this case, but surely it was wrong to deny the request. The lack of certainty and absolutism in psychiatric testimony calls for as much exposure to fact and conflicting analysis as is possible, in that "as much as possible" contact and observation can hardly be enough for the most reliable psychiatric opinion.
I respectfully dissent.
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