Gamboa, Joseph

Opinion

. H E COURT OF CRIMINAL AP~S OF TEXAS ORDER ADOPTING SUMMARY SHEET.

FOR POST -CONVICTION APPLICATIONS FOR WRIT OF HABEAS

CORPUS -SUPPLEMENTAL

CLERK'S RECORD- DEATH

PENALTY

Application for Writ of Habeas Corpus Ex Parte GAMBOA, from BEXAR ·County JOSEPH Name of Applicant) D379 Court

TRIAL COURT WRIT NO. 200SCR7168A-Wl

CLERK'S SUMMARY SHEET RECEIVED IN COURT OF CRIMINAL APPEALS APPLICANT'S NAME: JOSEPH GAMBOA (As reflected in judgment) JAN 08 2015 OFFENSE: CAPITAL MURDER- OTHER FELONY (As reflected in judgment) Aoe• Acosta, Clerk CAUSE NO: 2005CR7168A (As reflected in judgment) PLEA: GUILTY X NOT GUILTY NOLO CONTENDERE SENTENCE: DEATH DATE: MARCH 8, 2007 (Terms of years reflected in judgment) TRIAL DATE: FEBRUARY 23,2007 JUDGE'S NAME: BERT RICHARDSON (Judge presiding at trial) APPEAL NO: _ _ _ _ _ _ ___;__ _ _ _ _ _ __ (If applicable) CITATION TO OPINION: _ _S.W.3d._ _ (If applicable) HEARING HELD: _ _YES NO (Pertaining to the application for writ of habeas corpus) FINDINGS & CONCLUSIONS FILED:_x_YES NO (Pertaining to the application for writ ofhabeas·corpus) · RECOMMENDATION: _GRANT_DENY_DISMISS . (Trial court's recommendation regarding application for writ of habeas corpus) JUDGE'S NAME: BERT RICHARDSON (Judge presiding over habeas corpus proceeding) NAME OF COUNSEL IF APPLICANT IS REPRESENTED: _ _ _ _ _ __

NO. 200SCR7168A-Wl

·sUPPLEMENTAL WRIT INDEX

CAPTION ................................................................................................•........ ~ ............................. 0

REPORTER'S RECORD VOLUME 5 OF 6 VOLUME (S) APPLICATION FOR POST-CONVICTION HABEAS CORPUS (PG 39-120) .............. 1-82

CERTIFICATE ............................................................................................................................ 83

(

•

CAPTION

THE STATE OF TEXAS * COUNTY OF BEXAR * At a regular term of the 379TH Judicial District Court of Bexar County, Texas,

begun and held at San Antonio, State of Texas, before the Honorable BERT RICHARDSON Presiding thereof, which opened on the 18T day of JANUARY A.D~, 2015, and will adjourn. on the 28™ day of FEBRUARY A.D., 2015, the following cause came on for trial, to-wit: NO. 2005CR7168A-Wl EX PARTE: GAMBOA, JOSEPH

vs THE STATE OF TEXAS

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1 Q Now,. your mitigation expert did not testify at 2 trial, I believe. 3 A Linda Mockridge did not testify. 4 Q Okay. And that's pretty much the protocol, you 5 use them as kind of a support team and they're, generally, 6 not going to testify, you get other people to testify for 7 you; is that correct? 8 A Yeah. I think that's been certainly-- let me 9 just think for a s~cond. Certainly, Ms. Mockridge didn't 10 testify in this trial. I'm trying to think if I've ever had 11 a mitigation expert testify in other trials and I don't 12 believe I have. 13 I think, you know, whatever mitigation they uncover, I 14 think it's -- we either try to put on some family to support 15 it or -- or, if we had the actual records from Child 16 Protective Services, I think we probably offered those 17 through the.appropriate custodian and then had Ms. Milam 18 consider those in her -- in giving som~ background on this 19 young man. 20 Q Very good. 21 MR. LANGLOIS: I don't have any further 22 questions. 23 THE COURT: Anything else? 24 BY MS. WELSH: 25 Q Just one last question, just to clear up on this

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1 Dr. Milam thing. In fact, other than a statement that she 2 makes in her affidavit, that says something about brain 3 damage, at trial she actually testified that he is not 4 mentally retarded~ not doing well, it is not from a brain 5 injury, like an accident of some kind, but more genetic.

6 Does that sound familiar?

7 A Yeah. That's --you know, I think that's --that 8 was more the -- the theme and that certainly supported, I 9 think, the evidence that we were -- that we were trying to 10 put on. 11 MS. WELSH: I have nothing further, your 12 Honor. 13 THE COURT: Anything else? 14 MR. LANGLOIS: I have no further questions. 15 THE COURT: Okay. Mr. Hancock, this question 16 has come up in the last two Writs I have done here in Bexar 17 County: In your career, have you had anybody acquitted o£ 18 murder or capital murder charges? 19 THE WITNESS: Well, the answer to that 20 question is "yes," your Honor. I've had-- I represented a 21 young man years ago in the 290th District Court that was 22 found not guilty of capital murder. 23 And I certainly, have had multiple cases where I 24 represented people that are charged with murder and they 25 have been found not guilty by juries, as well.

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1 THE COURT: Was that capital case a death 2 penalty case? '

3 THE WITNESS: It was not. It was -- it 4 was -- even predated life without parole. It was just a 5 life in prison case.

6 THE COURT: Okay. Anything else from either 7 side?

8 MS. WELSH: No, your Honor.

9 THE COURT: Okay. Mr. Langlois?

10 MR. LANGLOIS: No. 11 THE COURT: Okay. All right. Thankryou. 12 THE WITNESS: Thank you, judge. 13 And may I be excused for the entire time? 14 THE COURT: Yes, sir. Yeah. 15 Okay. Lunch? 16 MR. LANGLOIS: I would like to start with 17 Dr. De France. 18 THE COURT: We can start right now and go for 19 a few minutes, or if Dr. De France or anybody else is hungry 20 we can go to lunch and start right after lunch, whatever you ~1 prefer: We started late, so it makes no difference to me. 22 Dr. De France, how are you doing? 23 MR. DE FRANCE: Fine, your Honor. 24 THE COURT: Do you want to start rolling? We 25 can get your qualifications out. That'll probably take us

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1 15 minutes, I think.

2 Come on up and have a seat.

3 (Whereupon, the Witness, Jon De France was 4 (called to the Witness stand.)

5 THE COURT: Raise your right hand, please.

6 State your name.

7 MR. LANGLOIS: Identify yourself, please.· 8 THE WITNESS: Jon F. De France.

9 (Whereupon, the Witness, Jon De France was 10 (sworn in by the Court.) 11 THE COURT: Okay. All right. You can 12 proceed, Mr. Langlois. If you want to just go ~head and get 13 started and you can find a logical breaking point. I'm sure 14 he's going to be on the stand longer than ten or 15 minutes.· 15 MR. LANGLOIS: Okay. 16 THE COURT: We can get some lunch and then 17 come back and finish after lunch. 18 JON DE FRANCE, 19 The witness, having been first duly cautioned and sworn to 20 tell the truth, the whole truth and nothing but the truth, 21 testified as follows: 22 DIRECT EXAMINATION 23 BY MR. LANGLOIS: 24 Q Okay. Dr. De France, would you give us your 25 professional background.

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1 A I'm a clinical neuropsychologist, licensed in the 2 State of Texas.. I'm a neuroscientist. So, I have a very --

3 I have a varied background.

4 Q All right. And you were actually hired by Jay 5 Brandon to do a examination of Mr. Gamboa; is that correct?

6 A He -- he requested the examination, but he didn't 7 hire us.

8 Q Okay.

9 A He --

10 Q Okay. You were retained as an expert, I believe. 11 A Pardon me? 12 Q You're an -- you were an expert in the case? He 13 , asked you to be an expert 14 A ' Yeah. He asked for us to do an evaluation. 15 Q Okay. And tell us what you did for the 16 examination. 17 A Well, it was a little -- it was a little bit 18 different, since Dr. Milam had already conducted an 19 evaluation. So, my recollection is that Mr. Brandon wanted 20 us to -- he came to his own conclusion there was something 21 missing in the evaluation and he wanted us to kind of focus 22 in on some of the areas that that, perhaps, were not 23 sampled or not examined, and so we did that. 24 Q Okay. So, you had the availability of Dr. Milam's 25 work; is that correct?

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1 A Well, not originally. We -- I remember reviewing 2 her ,court testimony or a deposition, but I didn't get her 3 raw data or the background until afterwards, after I 4 finished and started the writing process --

5 Q Okay.

6 A -- but it was very useful after all.

7 Q Let me ask you this: Given what you observed from 8 Dr. Milam's testimony and the tests that she conducted, did 9 you design your evaluation for a specific purpose; other 10 than what she did? 11 A Yes., We did. 12 Q Okay. And could you tell us what -- how you 13 designed your evaluation -- your evaluation and what were 14 the factors you took into considera~ion.

15 A Well, in any kind of what -- any kind of a 16 question when there's violence, we-- we look at the the 17 task, in terms of what we consider dr~ve factors versus 18 control factors. 19 And what we were trying to do is -- what we want to do 20 is -- is determine not guilt or innocence, of course, but 21 determine the likelihood of -- of future violence, but also 22 try -- try to ~xplain -- and it's not -- not assuming guilt 23 or innocence, but it is trying to explain how something 24 might occur, how an action might occur. 25 Q Okay. Now, were you aware at the time that

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1 Dr~ Milam, basically, focused on .what the Halstead-Reitan 2 batteries 3 A Yeah. That was clear from what we read.

4 Q And you're talking about drive versus control.

5 Does that have anything to do with what's called the 6 executive functioning portion of the brain?

7 A Yes. It does. And we kind of reframe it for 8 for a legal proceeding, in terms of a person's capacity for 9 rational thinking and making rational decisions versus their 10 capacity to conform to society's standards. 11 Q Okay. 12 A So, executive functions come into play there. And 13 also Reitan is a well accepted battery of tests, but it 14 doesn't sample the critical tests. Mr. Hancock mentioned 15 this issue of MR, the question of MR. 16 If I may put an aside comment -- and I don't know about 17 the legal standard for mental retardation--· but in terms of 18 psychological standards, we look at -- not only at 19 intelligence level, but you look adaptive behavior. 20 Q All right. 21 A And so -- so, there's two facets of that that need 22 to be looked at for the MR determination. And adaptive 23 behavior is very much going into the quality of a person's 24 executive functioning. 25 Q Okay. Now, the Halstead, the Reitan --

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1 A Halstead-Reitan.

2 Q -- do they, basically, focus upon the executive 3 functioning or do they not?

4 A They do not. As a matter of fact, there's only

5 one subtest of many that -- that samples executive .functions 6 in any -- in any way at all. And I don't think that was

7 given, actually, at least it wasn't in her -- it wasn't in 8 her file that I had.

9 Q So, basically, Jay Brandon had asked you to look 10 at executive functioning elements of Mr. Gamboa? 11 A Yes, that and -- of course, in order to -- to do

12 that, we had to look at other functions as well. Basically, 13 the executive functions are the responsibility of the

14 prefrontal cortex and they are invo~ved in other functions 15 as well. 16 So, one important set of functions for predicting 17 antisocial behaviors is working memory. So, we looked at 18 that as well -- a~ well as attention. 19 Q And you -- based upon examining Dr. Milam's 20 testimony, did it appear to you that she had not 21 concentrated on or not focused on the executive functioning 22 at all in her testimony? 23 A That's true. She did not. 24 THE COURT: What part did he say? 25 THE WITNESS: Executive functioning.

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1 THE COURT: Okay.

2 Q (MR. LANGLOIS) Okay. Now, why is that why did 3 that appear to be important to you, in this case, on 4 .Mr. Gamboa?

5 A Well, executive functioning, the concept is a 6 little complicated. But, basically, it -- it -- the 7 executive functions are involved in sort of harmonizing the 8 person's resources of the brain processes and trying to 9 .harmonize those with the man's situation, whether external 10 or internal. 11 A way to think of it is sometimes people think about a 12 CEO function, and I was thinking about how to describe it. 13 One important executive function is the -- is the judgmental 14 function, self-evaluation and judgmental, and the way the 1~ executive function is sort of like His Honor, in the sense 16 that executive functions tend to be very deliberate, 17 cautious, attentive, but they tend to be quite slow. 18 THE WITNESS: ·No offense, your Honor. 19 THE COURT: None taken. 20 Q (MR. LANGLOIS) The part of the brain that 21 controls the executive functioning, is that a different part 22 of the brain than the areas that Ms. Milam concentrated on? 23 A Yes. 24 Q And what part of the brain controls executive 25 function?

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1 A The prefrontal cortex. 2 Q Okay. Now, Ms. Milam looked at certain issues, 3 such as genetics, congenital, childhood, early childhood, 4 maybe middle/late childhood, adolescence and other factors, 5 perhaps. 6 Did you determine -~ during your investigation, did you 7 find any evidence of, like, repeated concussions, or 8 anything like that, or a brain injury? 9 .A Well, if we progress in the evaluation, and that's 10 the way we sort of structure the evaluation, how we kind 11 of -- that was -- the framework that we used for for 12 interpreting the results as an aggregate. 13 Q Now, you prepared an affidavit -- 14 A Yes, sir. 15 Q -- for Mr. Brandon? 16 A Uh-huh. 17 Q And within that affidavit, did you mention 18 anything about traumatic brain injury? 19 A Yes. 20 Q Why did you mention that? 21 A Well, the data that -- everything is data-driven 22 and his -- the pattern of executive function weakness and 23 also of the working memory weakness, were suggestive of -- 24 of -- of concussions, perhaps repeated concussions. 25 Q Okay. Now, let me talk -- what is working memory?

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1 A Working memory, you can think of it as 2 consciousness, but it has various components. Working 3 memory is sort of like a -- a operating space, a fan, a 4 vessel, where all information comes from all the senses and 5 from our memories and as sort of put together it's used for 6 a guided guiding present and future behavior. 7 The the important thing about -- well, there are 8 certain patterns of working memory to consider which are 9 signals for -- for traumatic brain injuries, but the 10 important thing is that -- to kind of realize is that the 11 working memory is extremely important for a person being 12 flexible in their thinking. 13 And a person who is defficient in working memory 14 functions is -- it's not a matter of being of poor memory, 15 which is one facet, but it's --basically, a person is -- is 16 kind of forced into stereotypical or kind of a rigid way of 17 responding, rigid way of pehaving oftentimes. 18 Q Now, executive functioning is pretty essential to 19 the issue of behavioral control; is that correct? 20 A Yes. 21 Q And that gets into the issue of violent, 22 antisocial behavior? 23 A Yes. The literature is quite vast on that. But 24 the certainly, it is important for, you know, what used 25 to be called psychoactive or sociopathic behaviors and

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1 actions. 2 But, basically, it's the breaking mechanisms. It's the 3 control mechanisms that keep -- that drives and keeps .that 4 in check. 5 Q Okay. Now, that was a situation of Joseph Gamboa. 6 Obviously, he was charged with a violent crime; is that 7 correct? 8 A Yes, sir. 9 Q And central to that, you felt that a thorough 10 examination of the executive functioning needed to be done 11 and was not done by Dr. Milam; is that correct? 12 A That's correct. 13 Q Okay. Did Ms. Milam assess working memory? 14 A No. 15 Q Okay. And working memory, does that bear on a 16 person's capacity for making rational decisions? 17 A Yes. It does. 18 Q Okay. Now, the executive functioning, does that 19 control a person's ability to make rational decisions and 20 decision making? 21 A It is a -- it is a factor, yes. 22 Q Okay. Is it a critical factor? 23 A Well, the the way that _we the way that we 24 structure the evaluation, a person can be deficient in 25 executive functioning to a great degree, but -- but they

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1 may be able to think rationally, but their thinking has a 2 certain characteristic to it. I don't know if that answers .3 your question or. not, but 4 Q Okay. Now, you also did some evaluation and you 5 had information about Joseph Gamboa's development and 6 injuries and stuff like that; is that correct? 7 A Yes. We had -- 8 Q You had to work up -- 9 A Yeah. Dr. Milam did quite an extensive 10 psychosocial history, so it's -- 11 Q You also had available family history and stuff 12 like that? 13 A Yes. 14 Q Interviews with different family members? 15 A From Dr. Milam's --yeah, report and from her-- 16. from her file. 17 Q What are the consequences of impaired executive 18 functioning and working memory functioning? 19 A The consequences? 20 Q. Yes. 21 A Well, that's only part of the equation,· but the 22 consequences by and large with those deficientcies, the 23 person's going to be operating on a fairly concrete or 24 literal level, they are going to be -- tend to be -- 25 function fairly stereotypically, because the executive

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1 functions are important for controlling our emotional 2 responses. 3 People who have executive functioning weaknesses tend 4 to be emotionally labile, tend to sometimes hyper-react, 5 they tend to make bad dec£sions, they tend to be 6 maladaptive, while -- you know, there's been classic studies 7_ for, you know, many years that-- showing that you can take 8 a person and give them an IQ test and you can do a frontal 9 lobotomy on them, separating executive functions and 10 eliminating their control, and the person will do the same 11 on the IQ test. And, in fact, sometimes they do better. 12 Q Okay. 13 A So, it's --the --the issue of intelligence is -- 14 is -- is separate. But, yet -- but the executive functions, 15 trying to put it simply, they -- they control how 16 effective -- how effective they control the intelligence 17 modules of the brain, if you will, but -- to kind of 18 determine how effective a person is in negotiating their 19 environment, how adaptive they are. 20 Q Now, you spent, like, three days examining 21 Mr. Gamboa; is that correct? 22 A Yes. 23 Q And about 15 hours or more of time? 24 A Of actual testing, yes. 25 Q And you made some informal observations, you

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1 started out with some informal observations, and I, believe 2 you observed some -- what you called echopraxia? 3 A Yes. 4 Q Can you explain what echopraxia is. 5 THE COURT: Why don't we just -- it's about 6 five after 12:00. It sounds like this is going to get kind 7 of deep. It's probably a good time to stop and just get .8 something to eat. 9 MR. LANGLOIS: Okay. 10 THE COURT: Okay. Is that okay with 11 everybody? 12 MR. LANGLOIS: We can do that. 13 THE COURT: Okay. Come back at 1:15. 14 MR. LANGLOIS: 1:15? 15 THE COURT: It's about five after 12:00· right 16 now. 17 MR. LANGLOIS: All right. 18 (Lunch recess from 12:05 p.m. to 1:28 p.m.) 19 THE COURT: Okay. We're back on the record. 20 Dr. De France is still on the stand and everybody's had 21 their -- 22 MS. WELSH: We have no Defendant. 23 THE COURT: everybody's had their shot of 24 caffeine, so -- correct? 25 THE WITNESS: Yes, your Honor.

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1 THE COURT: So, I think we're good to go. 2 (Off the record.) 3 (Open court, Defendant-present.) 4 THE COURT: Okay. Mr. Gamboa's back in the 5 courtroom, so we can proceed. 6 Mr. Langlois, your Witness. 7 Q (MR. LANGLOIS) Dr. De France, let me start this 8 afternoon with-- do a comparison to what,you did versus 9 what Dr. Milam did. 10 Okay? 11 A Okay. 12 Q And you, obviously, had an opportunity to look at 13 her results and her testimony and her affidavit, where she, 14 basically, stated that she did her testing and found that 15 Mr. Gamboa was severely impaired; is that correct? 16 A Yes. But the caveat is that I didn't see her 17 notes or her test results until after I finished my 18 evaluation -- 19 Q Okay. 20 A -- but I did read her deposition -- or, her notes. 21 Q Okay. And I think her results's, basically, that 22 Mr. Gamboa exhibited severe impairment on all measures of 23 language that required reading comprehension, his sight 24 reading, sounding out words ability, was at the fourth grade 25 level, but due to his reading comprehension problems,

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1 distraction measures, or personality could not be 2 administered? 3 A That's correct. 4 Q And she did the MMPI and the second requirement, ·5 sixth grade reading comprehension and Personality Assessment 6 Inventory, PAI, required a reading comprehension which she 7 did not do or invaliditied it; is that correct? 8 A Well, she chose the PAI. That was -- that was -- ·9 that's the protocol of hers that I have in my file and that 10 was that was considered invalid. 11 Q Okay. 12 A I re-administered it, however. 13 Q Okay. Now, basically, before we took a break, you 14 indicated that your focus was on the executive functioning; 15 is that correct? 16 A That was -- that was part of it. And in a 17 situation like this, we're also -- we're also interested in 18 personality organization. 19 Q Okay. And let's focus on the executive 20 functioning first, okay, then we'll go to the personality. 21 A Okay. 22 Q And -- and the -- you mentioned the executive 23 functioning is a prefrontal area of the brain; is that 24 correct? 25 A That's correct.

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1 Q And I think you told me that it occupies about 25 2 percent of the brain? 3 A About 25 percent of the anatomic brain. 4 Q Okay. Now, what are the primary functions of the 5 executive function, what does that control? 6 A Well, it -- it controls how adaptive a person is. 7 THE COURT: What? 8 THE WITNESS: How adaptive a person is. 9 THE COURT: Okay. 10 THE WITNESS: There's a lot of different 11 components to executive functioning, but, basically, it's 12 like a conductor in a symphony. It -- it sets the tempo of 13 different processes. 14 It calls -- it recruits different processes at

15 different times. It, basically, is responsible for goal (

16 directedness, being able to carry through a plan, make a

17 plan, carry through the plans, switch plans if one doesn't 18 work. 19 The characteristics of people who have difficulties 20 with executive function, no matter what the reason is, is 21 that they tend to go through life in a very simplistic mode 22 and they tend not to handle stress very well and they -- 23 they usually function pretty well in routine, consist'ent 24 environments, where -- where the boundaries or the rules are 25 well known, but they don't -- they don't negotiate the world

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1 very well, socially. 2 Q (MR. LANGLOIS) Can decision making and being able 3 to create -- kind of like what we call a career path or 4 something like that, you know, what your goals are and stuff 5 like that? 6 A Well, by and large, people who have the kinds of

7 deficiencies that we uncovered, they tend to live moment to \

8 moment and it -- basi~ally, the executive functioning is 9 really not part of the equation. Their controls are the 10 ·brakes, behavioral brakes, people who have behavioral 11 brake~, like car brakes. 12 The executive function is kind of an analogy I started 13 off with this morning, is like His Honor, who is very 14 deliberate, but the executive functioning tends to be very 15 s·low. If if -- if, for example, there was a threat

16 '

perceived in the courtroom here, there's operations that

17 would take over, and that would be the officers, who would 18 respond very fast. 19 And by -- and by habit, and this is, basically, what 20 happens with a person like Mr. Gamboa. What happens is that 21 his -- his executive functions are not strorig enough to 22 to handle a lot of stress and a lot of triggers, but what 23 happens is his priorities flip from from -- you know, 24 from whatever it is. 25 The executive functions go offline as part of their

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1 fight or flight response and then -- but that takes over 2 as -- part of the flight or fight response, the executive 3 functions or memory functions go offline. 4 So, if there's a threat coming into the room, the 5 officers are going to take charge, because His Honor's in 6 charge of the courtroom now, but if the if there's a 7 threatening person coming in, they take charge and they 8 operate very fast, and that's what we want. If the brain is 9 operating fairly normally, that's what you want. You want 10 the fast, stereotypical reflexive systems to take over. 11 And this is what happens in a -- in a person like 12 Mr. Gamboa. They get caught in a -- in a setting where the 13 emotions, basically, drive the fight or flight response. 14 The executive functions are offline, so the rules, or the 15 brakes, are gone; and so, they -- they tend to make these 16 bad decisions, basically. They tend to react reflexively, 17 without thinking through, without deliberation. 18 Q So, does this get into when you talk about the -- 19 the drive and control functions? 20 A Drive versus control, yes. 21 Q Okay. Now, you have to look at some of the 22 factors, the characteristics, you know, like his stress 23 tolerance; is that correct? 24 A That's correct. 25 Q And what did you determine about stress tolerance?

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1 A· Well, his stress --well, there's there's 2 multiple factors, but his stress tolerance, as a simple 3 statement, is it's very low. But what we really want to 4 know is what are the triggers, what causes the -~ what 5 causes the emotional response, and we have some answers to 6 that. 7 Q What are those answers? 8 A Well, part of it is wiring, part of it is genetic 9 or what he is born with. When we did our physiological 10 studies, we found that his fight or flight response w~s 11 about five times normal. 12 THE COURT: His what now? 13 THE WITNESS: About five times normal. 14 Q (MR. LANGLOIS) The childhood 15 A It's the amount of the physiological energy going 16 in, you know, that is -- that is operating all the time. 17 Basically, a person like that, even though they may not 18 perceive to be nervous, because they are habitually at some 19 level, but, basically, there's a basic-- there's a part of 20 their brain that is called the amygdala, that's saying, Go, 21 go, go, threat, threat, threat, all the time and it's ~ort

22 of like a - - it's as a setting function. 23 So, when people have this kind of physiological 24 p~ofile, they tend to hyperreact, they tend to go off, like 25 you said, drive, they go off like a rocket, like a two-stage

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1 rocket. 2 Q So, basically, he doesn't have much stress 3 tolerance because his executive functioning control is 4 controlled -- is driven by factors that make him kind of 5 overreact to situations? 6 A That's --that's --that's a way to put it, yes. 7 Q Okay. 8 A But none of it's simple. Because, basically, the 9 the the stress and tolerance is due not only to 10 biological factors, maybe it's some congenital factors, put 11 also have to do with experiential factors, which are -- have 12 to do with attachment schemes. 13 Q Right. And the attachment, basically, goes to 14 what happens in the early parts of life, you don't hav~ good 15 parenting and other factors like that and you become kind 16 of 17 A Right. The way -- the way -- if -- if I can just 18 use another analogy. The way the brain kind of works is it 19 works like this: If I'm walking through the forest, going 20 down to a river and I see a -- a -- something wiggling, you 21 know, on the ground, before the light reaches the back part 22 of my brain to perceive what it is, my -- my physiology is 23 already changing and going into fight or flight response. 24 My heart is starting to race, my breathing stops,, my muscles 25 start getting intense.

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1 And that happens before I actually can perceive go 2 over and perceive it and to see that it's this piece of 3 string and not a snake. And this is what happens. See, the 4 emotions are elicited at a pre-conscious level. 5 Q Okay. So,- basically, if somebody is somewhat 6 makes a remark towards Mr. Gamboa,. or says something to him, 7 normal people will sit there and say, Well, it's not really 8 a threat, but Mr. Gamboa may perceive it as a threat and 9 then react to that threat in a degree far above than what is 10 necessary. 11 Is that true? 12 A That's true. 13 Q Okay. 14 A That's true. 15 Q Okay. Well, that goes t o - - you know, that's -- 16 his stress tolerance is very low because he's affected more 17 severely by perceived threats or something like that; is 18 that correct? 19 A Right. That's true. 20 Q And then, he has a -- executive function goes to a 21 coping style, that he can't cope with that threat; is that 22 correct? 23 A Because he doesn't have the tools or the 24 resources, he hasn't learned those, yes. 25 Q So, he can't deal with the stress and he doesn't

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1 have any defensive maneuvers; is that correct? 2 A Well, he doesn't have the adaptive ones. He -- 3 when the person who is emotionally driven, overdriven as 4 this gentleman is, he doesn't have the capacity to put the 5 space of time between the initial -- his initial reaction 6 and his -- and his behavioral r~action.

7 Most of -- most people can put some time between it and 8 think about it and deliberate and say, Okay. They didn't 9 really mean to insult me. But a person with that kind of 10 biological makeup, they don't have that capacity, or it's a 11 lessened capacity. 12 But there's another part to it, if I may add, is the 13 appraisal part. Because emotions last about 30 seconds, 14 unless we unless we do something or think about something 15 to make them-- to prolong them, and that's the appraisal 16 part. 17 So, one of the keys -- the reason I say that is what 18 are the triggers, what are the triggers for a,person to make 19 them walk like a two-stage rocket. And so, you have to look 20 at what are the templates, what are the what are the 21 appraisal templates that a person uses and those are related 22 and in many people's cases and in his case to the detachment 23 schemes. 24 Q So, to kind of give a overview of it: Low stress, 25 deficient coping techniques, no -- very limited appraisal of

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1 the situation, and then he has an anger management problem. 2 And then, if he does something that is out of the normal 3 scope of what other people would do, that have those 4 factors, that have good executive functioning, so then he's 5 tagged as having an antisocial behavior problem. 6 Is that correct? 7 A The antisocial is by definition. But the only 8 thing that's interesting is that he may not have a anger 9 problem per se. It's an it's a hyper-reactivity, it's an 10 impulsivity problem. And most aggression, as it turns out, 11 to violence is impulsive, but -- and that's very true in his 12 case. 13 All the evidence suggests that that's really the core 14 of the problem. It's not that he is an angry person. It's 15 that he doesn't have the capacity to control. And what 16 happens because of the way his -- he sees human 17 ~elationships, for whatever reasori -- And we can get into 18 that later -- but, you know, instead of quieting down his 19 fight or flight response, his appraisal templates increase, 20 they amplify the emotion because they -- he looks at the 21 enemy, I'm going to get them first, you know. 22 Q So, with respect to the situation, we make those 23 observations and that's the character that he's displaying 24 to people, then you go back and you develop~ then you 25 determine what the neurological breakdown is; is that

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1 correct? 2 A Yes. 3 Q Okay. And does he have a neurological 4 sensitivity, you look at that; is that correct? 5 A That's correct, yes. 6 Q And you look at his, as you said, emotional 7 accelerators, emotional brakes and a capacity for empathy or 8 developing attachments and also cognitive controls. Now, 9 those are, basically, regulated by the executive functioning 10 part of the brain; is that correct? 11 A That's correct. It's regulated. 12 Q And in his first part, the observations are, 13 basically, his personality makeup and the second part 14 defines whether or not he has any mental deficiencies, is 15 that correct, in the executive functioning? 16 A I don't know what the word "mental deficiencies" 17 really means. 18 Q Well, is that the drive side? 19 A Well, I don't know. I don't think that's a useful 20 term. I think I understand the spirit of whatever your 21 question is. 22 Q Okay. What I'm trying to get at is can you 23 explain to the Court -- well, I guess, we have the drive 24 side and the control side? 25 A Right.

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1 Q Okay. 2 A Right. The capacity for rational thinking and 3 deliberation versus -- 4 Q Now, is the drive side equated to the -- the 5 characteristic or is it related to what the brain is telling 6 you to do? 7 THE COURT: Are we talking -- did you say 8 "drive side" or "dry side"? 9 THE WITNESS: Drive. 10 THE COURT: Okay. 11 THE WITNESS: Drive. 12 Q (MR. LANGLOIS) You said the drive is kind of like 13 the 14 A The driver's side, yeah. 15 Q You said the drive is kind of like a software? 16 A Right. But, again, it'~ a mix of biological 17 predisposition, plus a person's habits or templates that 18 they develop in early childhood usually. So, ~t's a mixture 19 of the two -- 20 Q Okay. 21 A -- where one precedes the other. 22 Q Okay. Now, can you tell us what your findings 23 were that Daneen Milam did not find, regarding executive 24 functions deficiency. 25 A Well, she didn't explore those, nor did she look

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1 at working memory, which is also important, but also 2 personality organization. She didn't explore that, either. 3 But we found this gentleman to have significant deficiencies 4 in all areas of executive functioning, practically all 5 areas. Some are quite striking, you know. 6 There were deficits, in terms of working memory 7 functions, a pattern which suggests traumatic brain injury. 8 The term that they use now is traumatic encephalopathy. He 9 certainly fits that pattern. 10 His memory function has an organic flavor to it and his 11 personality organization, while it may not be asocial, per 12 se, does look to have the risk of asocial behavior because 13 the emotional controls are deficient, but also his view of 14 human interaction is not adaptive, put it that way, it's 15 distorted. 16 And kids learn -- let me briefly mention about the 17 experiential side. Kids learn by modeling. They don't 18 learn by -- you know, they don't do what you say. They 19 learn by modeling. 20 Q Okay. 21 A And it's not only from the parents, but it's from 22 the familial, the friends, peer groups, all these things. 23 That has a big determination, especially in a person with 24 weakenned executive functions. Those things tend to be the 25 real determinants on how a person is going to react in a

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1 particular situation.

2 Q Now, you identified these things, and the affect, ' 3 basically, is emotional -- emotional style and his ability 4 to differentiate the emotional responses. And I believe 5 you're telling us that they were very low, he has high 6 emotions?

7 THE COURT: Can you hold that question for 8 one second?

9 (Interruption.)

10 THE COURT: Okay. Go ahead.

11 Q (MR. LANGLOIS) So, you defined the affect part of 12 the drive side, you identified the --

13 A Well --

14 Q -- the fact that, you know, his emotional 15 responses were, you know, in high gear at times and that --

16 and also prevented his potential to organize his thoughts 17 and behavior; is that correct?

18 A That's correct.

19 Q Okay.

20 A The -- it comes from two differ~nt directions.

21 The one direction is the physiological direction. We know, 22 physiologically, the -- the part of the brain, the medulla 23 are part of the temporal brain, the medulla, is saying, Go, 24 go, go, threat, threat, threat.

25 The other part comes from more the emotionality, just

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1 his emotions are just his -- it's part physiological, but 2 his emotional -- what we call emotionality, his reactive 3 part is extremely strong.

4 And then, on the other side of the equation, on the 5 control side of the equation, those controls are deficient.

6 So, you know, the accelerator is strong, you know, the 7 brakes are weak.

8 Q Okay. And on the cognitive side, we call those 9 emotional triggers, is -- you know, you determined his 10 capacity for realistic,, logical and constructive thinking 11 and, obviously, that was very deficient; is that correct?

12 A This is it's not a simple answer. But to put 13 it most simply is that he -- his capacity -- he has the 14 capacity for rational thinking and emotional being at times, 15 but what the data indicates, what our evidence indicates or 16 predicts, is that he would -- when he gets emotional, his 17 thinking is going to be very fragile and it's going to --

18 it's going to be not very coherent or rational.

19 Q All right. So, in other words, he does·things he

20 shouldn't be doing?

\ 21 A Well, part of it because he doesn't -- there's the

22 impulsivity part, but also there's another layer of control 23 where a person kind of looks at foresight or looks at the 24 consequences and the person -- once the fight or flight 25 takes over, then they are not going to be.able to have that

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1 foresight or think about consequences. 2 Q Now, on the control side, you talk about his 3 affect, his coping resources and how he'd cope with things. 4 Now, that's a factor of, obviously, upbringing and, you 5 know, his history and stuff like that; is that correct? 6 A That~s correct. 7 Q Okay. And there, we had a long history of no 8 parental -- he had no parental guidance, basically, very 9 limited parental guidance, very unstructured childhood? 10 A Well, that's what Dr. Milam's notes would suggest. 11 Q Okay. So, basically -- that, basically, went into 12 affect, his emotional containment; is that right? 13 A A defective emotional containment, yes, that would 14 be exactly right. 15 Q Now, getting to the executive part, at the upper 16 levels of emotional control, you determined his ability to 17 organize, his cognitive resources to handle frustrating 18 circumstances and his capacities for flexible thought 19 developing hypotheses or verified conclusions. 20 So, in other words, if a person's out there and he's 21 got these stress factors going on, his capacity to think 22 through the situation is limited; .is that correct? 23 A Yes. It would be diminished. 24 Q Okay. "biminished." 25 And, you know, obviously, it diminishes his attention

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1 ability to suppress the extraneous thoughts and dealing with 2 conflicting information; is that correct? 3 A That's technical~ but that's -- 4 Q Okay. And working memory. Explain working 5 memory. Is that something that, you know, you develop as 6 you go through life and -- to make sure that you work in a 7 controlled atmosphere and that you logically work out 8 things? 9 A Working memory is like consciousness. It's not 10 awareness, but it's like consciousness and it's the-- it's 11 the operating space that we're using at the moment, but it 12 allows us to integrate a whole bunch of different 13 information; 14 But we look at three different aspects of it. One, we 15 look at the ability at the capacity of a person's working 16 memory, how big is the hard drive, so to speak, or -~ I 17 guess RAM is a better metaphor for it, what is their 18 capacity, so so how long can they sustain information and 19 working memory, which is critically important, in terms of 20 executive functioning. 21 Q Did your testing establish that Mr. Gamboa had a 22 very limited working memory? 23 A Yes --. 24 Q Okay. 25 A -- woefully working memory.

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1 Q Okay. 2 A But we look at the maintenance of information, the 3 manipulation of information, and then we look at the 4 interference effects of information. 5 Q So, all the testing you did was to sit there and 6 determine his deficiencies in these functions; is that 7 correct? 8 A Well, we're looking for strengths and 9 deficiencies, but he was -- he was deficient in all areas of 10 working memory. But the more important thing, too, is not a 11 matter of -- is not just an academic exercise in a sense, 12 but it tells us something about what the cause is. And in 13 his particular case, his profile looks like a head injury 14 pattern. It looks like a pattern that we commonly see in a 15 person who sustains a head injury. 16 Now, when we get a finding like that, we have to go 17 back and we have to look for external validity. Well, he 18 didn't have any -- he had one pretty good bump on the noggin 19 with a baseball bat, but I don't think he was -- the 20 notes -- I couldn't read whether he lost consciousness or 21 not, but Dr. Milam's, when I reviewed her notes, she made 22 some notes on it and I couldn't decipher them. Her 23 handwriting's much better than mine, but I couldn't make out 24 whether he had lost consciousness. 25 But regardless, when he was --- when he was in middle

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1 school, or high school, or junior high, he was in -- he was 2 in fights regularly. And then, he took up -- unfortunately, 3 as a sport, he took up boxing, which is not recommended, you 4 know, because-- so, it's very likely that --you know, 5 that -- that all the other things that -- as he developed 6 along his cognitive personality and emotional development, 7 most likely he got a head injury factor here as well, which 8 further diminished his capacities. 9 Q Now, talking about head injuries -- and I want to 10 go to the behavioral factors under the control side, 11 behavioral factors create a strong bias that he has towards 12 impulsiveness, that is, you know, acting without thinking 13 and inability to express appropriate responses. 14 Now, would -- you know, I know that recently there's 15 been more emphasis on observing brain injuries, the 16 consequences of, you know, football concussions or boxing 17 and stuff like this, or where people have had multiple-- 18 not very traumatic head injuries, but then repeatedness of 19 those irijuries kind of -- kind of creates a situation where 20 it becomes more serious; is that correct? 21 A That's very correct, yes. 22 Q Okay. And so, are you saying that Mr. Gamboa, at 23 least the test results demonstrated, that he had some type 24 of influence from brain injury? 25 A From a traumatic brain injury; that's what the--

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1 particularly, the memory results suggest. There's other 2 indications as well. But the memory results, it was fairly 3 clear that his pattern fits the injury profile. 4 Q So, all these factors you observed, you know, 5 were, basically, factors that you tested for; is that 6 correct? 7 A Well, there's evidence for it. We're very 8 data-driven. 9 .Q Does Mr. Gamboa have some type of personality 10 disorder or psychopathic disorder, based upon your 11 examination? 12 A He doesn't have a psychopathic disorder. 13 Q Okay. i4 A He doesn't have a personality -- I mean, 15 psychopathic/sociopathic, in terms of the old definition 16 commonly used, no, he doesn't have that. By definition, 17 he's got the asocial part, but that's by definition. 18 Q Okay. Attachment, how -- how important is 19 attachment? 20 A It's extremely important. 21 Q Can you explain what attachment is. 22 A The attachment scheme is developed in the first 23 three years of life. So, basically, preverbal, okay, so -- 24 which makes th~m very difficult to remediate. But, 25 basically, the attachment scheme sets the stage for -- for

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1 telling a person how to interact with the world and whether 2 the world is safe and secure, trusting, or whether the world 3 is inconsistent, potentially hostile or uncaring. 4 These -- these kinds of templates become become the 5 basis of -- in part, morality, but in part in large part, 6 basically, how a person engages the world, whether they 7 engage the worid with worriness, being hypervigilant, or 8 whether they engage the world as being welcomeing and 9 trusting. 10 Q Now, with regard to attachment, do you also look 11 at the children of -- learn by modeling, in other words, 12 parents model their behavior? 13 A Children mbdel parents' behavior. They don't do 14 what the parents say. They do what the -- what they see the 15 parents do. 16 Q Did you determine, based upon his attachment 17 deficits, that he Joseph Gamboa is not very trusting? 18 A Well, that came through, but his attachment scheme 19 lboked to be insecure as a particular type. Now, it doesn't 20 mean he's got an attachment disorder, but in the context 21 it's an explanatory factor and how-- and to explain how did 22 he get to where he is today. 23 Q Okay. And does he view the world as being hostile 24 towards him? 25 A He has to answer that. But my prediction would

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1 be, yes, to some extent. He doesn't have the same at ease 2 with people that most people have. 3 Q What did you determine about Mr. Gamboa's level of 4 empathy? 5 A He does have basic empathy. He does have it, 6 so -~ we were interested in that because we were looking at 7 issues of autistic kind of behaviors. But he does have the 8 basic empathy. That's why when he put everything-- when 9 you put everything together, we think of his aggression -- 10 the episodes of aggression are not predatory, they're not 11 sociopathic, they're not out of control, they're not 12 repetitive, they're not about pressure. 13 They're basically impulsive, which tells us, you know, 14 the kinds of settings in which he is going to do well and 15 the kinds of settings in which he would do very poorly. 16 Q But while he does have empathy, does he have the 17 capacity to use it? 18 A Well, no. The executive functions that are -- you 19 know, they determine how it's used, in large part. Now, a 20 sociopath or a psychopath can have knowledge of -- and 21 they're very good at reading body language and so forth, but 22 they just don't care, you know, where an autistic child is 23 not going to have that capacity, to read the facial 24 expressions, or body postures, or gestures. 25 Q Okay. So, where does Joseph Gamboa fit into that?

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1 A Well, he's kind of like a person who wants to 2 dance, but doesn't know the steps. 3 Q Okay. He's the type of person that what? 4 A He's the kind of person that wants to dance, but 5 doesn't know the steps. 6 Q Okay. 7 A He's got the basic empathy, but he can't -- again, 8 when emotions take over, when a fight or flight kicks in, 9 everything else is sidelined, everything else just takes -- 10 everything else is taken off the list.of priorities. The 11 priorities are survival, either that or tension relief. 12 (Interruption.) 13 THE COURT: Can you hold on one second? 14 (Recess from 2:01p.m. to 2:06p.m.) 15 THE COURT: Okay. We're back on the record. 16 The class is going to be a few more minutes. So, as 17. soon as they get here, we'll just put it on pause and let 18 the~ quietly file in. 19 Okay. Mr. Langlois, go ahead. 20 Q (MR. LANGLOIS) Okay. So, basically, we've gone 21 over the executive functioning that controls certain 22 emotions and your ability to, you know, control those 23 emotions and things like that; is that correct? 24 A Yes, sir. 25 Q Okay. And what society sees often is a

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1 person's -- commits a crime, you know, commits a murder or 2 something lik~ that, and they translate that into antisocial 3 behaviors, psychopathic behaviors; is that correct? 4 A I can't answer that for sure. 5 Q Okay. Well, if they do, those are the 6 psychological explanations for them; is that correct? 7 A Yes. 8 Q Okay. First off is would you determine or be able 9 to classify Mr. Gamboa as a person who would initiate that 10 type of, quote/unquote, antisocial behavior or behavior that 11 results in criminal conduct or a reason that he's here? 12 A No. I mean, it's a reflection-- it's a 13 reflection of his character or personality and he's very 14 passive. He's --he's --he's a follower, not a leader. He 15 doesn't -- he doesn't initiate it, and we saw that in -- not 16 only behavioralally, but in terms of some of the mental 17 processes. He's kind of slow to get started. It's like 18 he's going in first gear all the time for a long period of 19 time. 20 Q Now, I think you found that the evidence kind of 21 argues against a psychopathic personality? 22 A Yes. 23 Q But that doesn't mean that his perionality is not 24 fraught with contradictions or incompatible dynamics by 25 various circles that -- that he kind of acquired during his

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1 development; is that correct? 2 A That's correct. And·it doesn't mean he has --his 3 personality development isn't adaptive. It can be adaptive 4 in some circumstaBces. It's going to be, predictably, very 5 maladaptive in other circumstances. 6 Q But his personality shows a heightened -- 7 heightened degree of anxiety? 8 A Yes. 9 Q Okay. And that anxiety is developed because he 10 doesn't have those trust factors and he feels the world to 11 be hostil~?

12 A That's part of it. But there's also the 13 physiological -- or, the physiological overdriving is the 14 is the is the underlying factor of the anxiety. 15 Q Which shows lots of breakdown and -- 16 A It provides the momentum for the anxiety. And 17 that's just physiological. That's part of genetics. 18 Q All right. 19 A I could just add that, normally, that's a 20 protective factor. People who have that kind of overdriving 21 tend to learn from negative consequences very well. So, 22 when they don't, they wonder why. 23 Q So, given the -- the fact that Dr. Milam did not 24 screen the executive functioning portion and, you know, she 25 testified as a mitigating expert, if you were to testify

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1 before a jury, or had the opportunity to testify to a jury 2 at a punishment phase to discuss the consequences of 3 impaired executive functioning and working memory 4 functioning, what would the jury have received from your 5 testimony that they would not have received from Dr. Milam'S 6 testimony? 7 A Well, I \ think by factoring in the executive 8 functioning and working memory personality organization, I 9 think the jury may understand how a person can get to his 10 situation. I mean, you always seek an explanation why, why 11 this, why that. 12 Well, it's not a mystery, you know. In a way, you look 13 at -- you know, if you look at his development from the womb 14 to today, then, yeah, you would say, yeah, the prediction 15 would be that, yeah, he would get in serious trouble. 16 Q Okay. Now, that goes into just being able to 17 explain to a jury the fight or flight response, is that 18 correct, in terms of whether it's physiologically or 19 personality? 20 A Yes, sir. 21 Q Is that correct? 22 A That would be -- that would be part of it. In 23 this stage of the proceedings, the question is, I mean, 24 could he have made other choices? Could he have made other 25 choices?

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1 Well 2 Q Well, of course, he could have made other choices, 3 but he doesn't have the capacity to make those choices?

A That's what I meant to say.

5 Q Okay. 6 A Because he is limited in a number of choices that 7 he makes and -- and because of the executive functions, 8 he's --and there's his strong emotionality. Even the pro 9 social choices that are available to him, he'd probably have 10 a difficult time making. So, the question is -- is does he 11 really have a choice. 12 Q Now, is that what you would explain to the jury, 13 that the implications of a strong fight or flight response 14 in the face of a weak executive and working function -- 15 working memory functions result in being very impulsive? 16 A Yes, . very impulsive. 17 Q Okay. And so, the display by Mr. Gamboa to be 18 impulsive -- impulsive would cause a person to shoot a 19 person sometimes, would it not, because he's not --he 20 doesn't have the ability to determine that really, you know, 21 this isn't a fight situation, this is a flight situation or 22 be able to work out the situation because --but he can't 23 because he has a very damaged executive functioning portion 24 of his brain? 25 A Not -- what you say is true, but not all impulsive

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1 people shoot people, hurt people. But, basically, you know, 2 when the fight or flight comes online, the thinking part or 3 the rationality goes offline. 4 Q Okay. And you said that Joseph Gamboa's not a 5 person who initiates things, or I guess he's not likely to 6 be aggressive. But if he's provoked or if he has that false 7 belief he's provoked, due to a lack of executive 8 functioning, then he does appear to be aggressive? 9 A Yes. That's a good way of putting it. 10 Q Okay. 11 A He's not going to intentionally harm somebodyj 12 but but he may -- he may take it as an insult, you know, 13 some fairly benine or innocuous kind of statement on the 14 part of someone else. And once that initiates that's the 15 appraisal part, and once the appraisal part is his 16 appraisal templates just amplify the emotionality. 17 The initial gut reaction is "huh," and then-- and then 18 the appraisal part just amplifys it and then he -- the fight 19 or flight takes off and he's --and he starts to fight or, I 20 mean, gets in a fight. 21 Q That pretty much summarizes what you -- 22 A But he's reactive. That's the point. What you're 23 saying, he's reactive, not proactive. He's not a predator, 24 but, you know, you need to understand how he might get into 25 real trouble.

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1 Q One of your findings, that you thought was kind of 2 interesting echopraxia? 3 A Yes. 4 THE REPORTER: Pardon me?

5 THE WITNESS: It's E-C-H-0-P-R-A-X-I-A .

. .'!:~.

6 Q (MR. LANGLOIS) Kind oftell us what that is and 7 why it surprised you to find that or what you 8 A Well, it's a frontal lobe sign or a primitive sign 9 and normally disappears. You see it in children. It 10 normally disappears by the age of seven. But, basically, 11 it's very uncommon to find that in an adult. And why we 12 took such great note of it was because it fits some of the 13 other stuff. But, basically, it told us about how severe -- 14 severely deficit the executive functions are. 15 Q What is echopraxia? Is it if you look at somebody 16 doing a motion, or something like that, they can't duplicate 17 it? 18 A It's the ability to reverse. If you have a 19 five-year-old child and ask them to do this and use the same 20 hand sign, they will mirror that. They don't have the 21 ability to reverse it. 22 Q Okay. And Mr. Gamboa doesn't have that ability? 23 A Well, he made those errors; that was quite 24 striking. But also, once you have that, then you can never 25 rely on things. So, we also found his -- he couldn't

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1 reverse mental images. We would -- did some tests for 2 reversing mental images, doing rotations. That was fairly 3 tough. That's fairly uncommon, to find that in an adult . .4 Q So, in other words, it's kind of like reading with 5 a mirror and the like, I mean, you can't translate the 6 A Yeah. You can't translate. This is doing a 7 rotation, you know. I can imagine what that monitor looks 8 like. If -- if I would sit in front, I would do that 9 rotation in my head, but that's something which is very 10 difficult for him. 11 And, again, that's very uncommon to find and it sort of 12 adds to the weight of the evidence about having some sort of 13 brain damage. And I hate that term, actually, but -- 14 because it doesn't mean anything. But --but -- but our 15 results do -- do echo Dr. Milam's results in that regard, 16 she -- the specificity, but she noted he did have some 17 organic brain damage. 18 Q Now, when you ever ~- you do any type of 19 psychological testing that has to do with, obviously, 20 determining, you know, IQ or adaptive behavior or ability to 21 learn or anything like that, like this, is there some type 22 of validity testing to make sure that the person's not, 23 creating false answers or just trying to randomly guess or 24 something like that? 25 Do you do some type of validity testing?

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1 A Well, we do some -- we do validity testing, but we 2 look at every test individually for -- for consistentcy, for 3 what doesn't make sense. Everything -- everything that a 4 person does is a datapoint for us. Even if the -- if the 5 if the results are invalid, it's a datapoint, because you 6 have to ask why. 7 So, I looked-- looked at --Dr. Milam's PDI was 8 considered invalid, but if you look at his -- at the 9 sequence of his iesponses, one of the -~ one of the -- one 10 of the hypotheses could be that he couldn't read, didn't 11 understand them, an overhypotheses, though, but that he was 12 highly persevered, because once he started off with a false 13 answer he kept on going. So, there was a string of false 14 answers that was -- that was quite stunning. 15 Q So, that kind of established he doesn't really 16 know whether it's true or false? 17 A It was an overhypotheses, it has a couple of 18 you know, it has implications, but has possibilities. But 19 you look elsewhere to confirm or -- or -- rule in or rule 20 out one of the hypotheses. 21 But, certainly, we saw high levels of separation on 22 some of the sight tests, but there's no question there's 23 no question that reading comprehension is a real was a 24 real problem. 25 Q Okay. Were you able to validate your test?

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1 A We were, yes, our tests were validated. 2 MR. LANGLOIS: At this time, judge, I'll pass 3 the Witness. 4 THE COURT: Okay. Why don't we take about a 5 five-minute break. 6 Okay? 7 You can take Mr. Gamboa out for a second. We're just 8 going to take a quick break for a second. 9 Okay. 10 (Recess from 2:20p.m. to 2:35p.m.) 11 THE COURT: Okay. All right. 12 CROSS-EXAMINATION ·13 BY MS. WELSH: 14 Q Dr. De France, my name is Mary Beth Welsh. We met 15 briefly right before we. started. 16 A Yes 1 ma'am. 17 Q I have a few questions that I want to go over. If 18 you don't understand my question, which is entir~ly 19 possible, just ask me to repeat it or -- repeat it in a 20 different way and I'll try to do that. 21 A Sure. 22 Q As far as assessment tools for neuropsychology, 23 the Halstead-Reitan is one of many; is that correct? 24 A It's one of many. That's right. 25 Q And the Delis-Kaplan is, in fact, one of many,

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1 which is one you use; correct? 2 A Well, they sample different kinds of functions, 3 but, yes, you're right. 4 Q If you're looking at the tools used-- not looking 5 at what they test, but there's a whole list of tools that 6 are used to assess all kinds of functions, like -- and even 7 in the executive function, the Delis-Kaplan is listed as one 8 of the different tools, as well as the Halstead, 9 specifically, the category test. And I think you alluded 10 during direct that there was a test on the Halstead-Reitan 11 that does test executive functioning, but you didn't name 12 it. 13 Were you referring to the category test? 14 No, ma'am, to the Trails B test. 15 Q Okay. 16 A The category test was actually designed to sample 17 frontal function, but the research shows that it's more 18 of -- it's sensitive to generalized brain damage, moderate 19 to severe. 20 Q As a neuropsychologist, part of what you do is 21 determi0e what -~ which of all of these assortments of the 22 tests you're going to use to make your as~essment; is that 23 correct? 24 A Yes. 25 Q And we could have five neuropsychologists in this

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1 room and all five of you may very· well come up with a 2 decision to use different tests. Wouldn't that be fair to 3 say? 4 A Depending on what were trying to sample, they 5 wouldn't be remarkably different. There might be a lot of 6 overlap. There may be one or two different, but there would 7 be a lot of overlap. 8 Q But -- but there's a lot of tools to choose from 9 and you have to assess which ones to choose? 10 A That's correct. 11 Q Now, in your assessing what needed to be done for 12 this trial or what should have been done for the trial, did 13 you at any time actually talk to Dr. Milam? 14 A No. 15 Q Did you at any time talk to the defense attorneys 16 that tried the case? 17 A The defense attorney? 18 Q The defense attorneys. There were two attorneys 19 that tried the case, one of which was in here this morning. 20 A Yes. I did. I talke~ to Mr. Brandon. I talked 21 to 22 Q No. The two -- Mr. Brandon came -- 23 A He came later. I'm sorry. 24 Q into this case much later. I'm talking about 25 the trial attorneys.

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1 A No. I didn't. No. 2 Q So, you were not aware at -- when you were doing 3 this assessing of exactly what the strategy was of the 4 defense attorneys; correct? 5 A That's correct. 6 Q You don't know what they wanted to achieve, what 7 they wanted Dr. Milam to look at? 8 A That's -- that's very true. 9 Q And wouldn't it be fair to say that even -- even 10 you, when you perform tests, could come back how, or even 11 taking Mr. Gamboa's, you could look it and say, Do you know 12 what, we probably ought to do this test and this test and 13 this test that we didn't do before? 14 A Well, that's very true. Because we were-- we 15 were on a time limit. There were some tests that we would 16 like to have done. 17 Q It's true of all of us; right? 18 A Absolutely. 19 Q In our capacities as professionals, we -- you 20 know, I'll walk out of here this afternoon and say, Manj I 21 could have asked this question, or I should have asked this 22 question, or I should have argued. 23 We can look back and see where we could have done 24 things differently? 25 A That's very true. I have that experience often.

L

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\

1 Q Yes. In your practice -- you stated in your -- I 2 believe it was your affidavit and even with your listings of 3 your credentials and all, that you had been an expert in a 4 number of legal cases. 5 Can you be a little bit more definitive? 6 A Well, without -- well, there are certain things 7 that I want to talk about, but -- 8 Q Well, no, I mean, number wise, a number of legal 9 cases. Have you worked on ten legal cases, 15 legal cases, 10 a hundred? 11 A Oh, not a hundred, no, because I don't do this for 12 a living. Probably probably 20. I've been doing more 13 and more recently, but I have been involved-- I don't want 14 to get too much in detail, but --but I've done some capital 15 cases and did some sexual predator cases. 16 Q So, of the number of legal cases, how many -- and, 17 again, I'm not asking for any detail. What those legal 18 cases are is really irrelevant here. 19 A Yeah. 20 Q But what I want to know is how many of the cases 21 you have been involved in are actually criminal cases. 22 A I'd say a dozen, talking about serious felony 23 cases. 24 Q At the time 25 A And I'm not talking about drug arrests and stuff

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1 like that. 2 Q Okay. At the time that you, I believe, did your 3 affidavit and you got your credentials, you had stated you 4 had direct involvement. in a capital case for the State. Is 5 it one capital case you have been involved in or is there 6 more and some were for the defense? 7 A Well, no. I have done -- I have worked for the 8 prosecution and defense -- for the prosecutor. 9 Q And how many capital cases did you do? 10 I guess I shouldn't say that you do. How many have you 11 been an expert for? 12 A Oh, gees, it's probably-- Oh, boy. It's 13 probably-- I'd say six to eight, something like six or 14 eight, six capital. I've done a couple of -- for the 15 prosecution. I've got a couple ongoing . 16 Q . Well, you just you just made the statement, 17 which is going to lead sort of to my next question, that 18 it's not what you do for a living. 19 A That's correct. 20 Q In fact, yours is a clinical neuropsychology and 21 that's what-- 22 A Well, I'm a -- yeah. I'm a clinical 23 neuropsychologist, ,but I have -- I see patients of all age 24 groups, children, adults, adolescents. 25 Q So, I don't see anywhere in-- in your

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1 credentials, which, by the way, they are I'm not 2 questioning your expertise. However, I, in my studies, have 3 seen that forensic neuropsychology has become a specialty 4 where the neuropsychologist actually spends time and focuses 5 on the legal aspects of the nuances of what they are testing 6 for. 7 Is that fair to say? 8 A Well, not quite, but that's -- I understand the 9 sense of the question. The -- yeah, you know, in the last, 10 say, six years, there's been-- there's been some attempt at 11 getting special -- doing specialties in forensic psychology. 12 And I will say in my own defense that I have been trained, 13 of course because I've had a lot of CEUs. 14 Q Okay. It's not a defense. Again, I'm not 15 questioning your expertise. I'm just looking at the fact 16 that -- are you familiar with the -- a forensic clinical 17 neuropsychology textbook? 18 You're familiar with those kind of textbooks; correct? 19 And this actually -- 20 A Well, there's a number of them. 21 Q Okay. This one -- I'm sorry. Let me rephrase 22 that because it'll be more specific for you. It's Applied 23 Clinical Neuropsychology, 2011 copyright (indicating). 24 A I don't think that's in my library, but I've 25 probably got equivalents. I mean, there's a number of them

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1 out there. 2 Q And they talk about forensic clinical 3 neuropsychology, where they specialize in the forensic 4 application of your knowledge and skill. 5 A Well, I -- well, I do have some of those books in 6 my library, but I try to stay current with the literature, 7 too, because, like, over the last four or five years I have 8 been doing more and more of these kinds of cases, so 9 Q Well, bottom line, with the forensic, in dealing 10 with the legal aspects or the nuances in fact, she 11 they talk about in this -- in this book, that, in the 12 forensic setting, many other issues, other than just the 13 the clinical issues, surface, such as -- one of the big ones 14 is mallingerring and some of the things that will affect 15 for example, you didn't evaluate Mr. Gamboa until he was on 16 death row for nearly a year versus her, as in Dr. Milam, 17 evaluating him during the trial; 18 That could -- that could bring some nuances and 19 differences; correct? 20' A Well, that's very true. But let me say this: I 21 have had a lot of experience in evaluating for 22 mallingerring. Because most of the legal cases we have done 23 have been in-civil court, they have to do with injury and 24 there malingering is a real issue. 25 But I will say, too, that we -- we pay a lot of

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1 attention to internal consistency and, eventually, the 2 external consistency doesn't make sense, so -- but we 3 evaluate everything, in terms of level of effort and we 4 evaluate everything -- every test, in terms of authenticity 5 of effort. That's really a major -- a major point for any 6 kind of evaluation. So, we spend a lot of time with that. 7 Q And the bottom line for my point is you, as an 8 expert, or Dr. Milam as an expert, it's important to 9 understand within the legal setting exactly what needs to be 10 obtained, exactly what the defense attorneys want to convey 11 to the jury; correct? 12 A That's --that's true. 13 Q And it may be part of their decision process as to 14 whether or not they want to put on the technical stuff that 15 we heard for an hour and a half, which I'm not questioning, 16 is not -- it's probably very valid and there's no denying 17 that he had a horrible childhood, but they have to decide 18 what impressions the jury's going to be left with, are they 19 going to -- are they going to listen to his family, give 20 this heartwrenching background of how horrible his life was, 21 or are they going to want more technical stuff. 22 Do you see what -~ it's a decision-making process, do 23 you understand that? 24 A Well, I -- 25 Q "Yes" or "no"?

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1 Is it a decision-making process the defense attorneys 2 have to do when they are trying a case? 3 A Well, in a sense-- well, of course, it's the-- 4 the attorneys are the -- they are sort of the quarterback. 5 Q Well -- and they have to decide whether they want 6 to go into more detail in one area or get on the -- the -- 7 that he's brain-impaired and he suffers from this terrible 8 childhood, that nobody denies or what to do, it's a 9 decision; correct? 10 A Yes. It's their decision. 11 Q Now, you did speak a little bit -- first of all, 12 when you were getting preparing for this and you were 13 talking to or, evaluating Mr. Gamboa, you mentioned that 14 you looked at Dr. Milam's -- I'm not sure if you actually 15 just looked at her notes or did you actually read the 16 record? 17 A I didn't get wh9t I have in my file. This is 18 this is my file for him. 19 Q Okay. 20 A What I have in there, I did not receive until -- 21 her work, I did not receive until I finished the evaluation 22 and started writing the report. 23 MS. WELSH: May I approach 24 THE WITNESS: I did 25 MS. WELSH: Hold on just a minute.

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1 Your Honor, may I approach? 2 THE COURT: One at a time -- You can ,3 approach -- ~o the Court Reporter can get it down. 4 Q (MS. WELSH) This is my copy of the record, but I 5 just wanted you to look -- do you remember looking at 6 anything that was -- looked like this, like it was a record 7 or transcript (indicating)? 8, A Yes. Well, yeah, I think I did. 9 Q Okay. Well, you were flipping 10 A That was -- that was for 11 THE COURT: Hold on a second. One of you at 12 a time. Let him finish if he is talking. 13 Q (MS. WELSH) You were talking of her notes and 14 then you said "deposition" a few times, so I just wanted to 15 clear up for the record that you actually did look at the 16 record, that you got the record. 17 A I don't recall-- I don't recall whether it was a 18 deposition or a court recording. I didn't review that 19 before we did the evaluation. I didn't review all her 20 her details of the family history and her actual test 21 results until we were, essentially, completed, because I 22 was -- otherwise, I would have designed the tests -- the 23 battery of tests a little bit differently, but -- but, 24 anyway 25 Q Which, again, brings us to the fact that you

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1 looked at Mhat she did and then you 6an decide to do more or 2 different testing, which is very -- it doesn't mean she was 3 wrong, it just means you could add to it; correct? 4 A No. I never said that she was wrong, because our 5 testing -- our results, basically, complement each other and 6 we both say the same things, in terms of -- in terms of the 7 summary. 8 Q When you reached your conclusions on Mr. Gamboa, 9 had you read any of the police reports having to do with 10 this particular offense that he was on trial for? 11 A No. 12 Q Had you talked to Mr. Gamboa at all about this 13 offense? 14 A I don't do that. They tell you. I don't ask any 15 questions about that as part of -- never -- never ask a 1£ question about that. Now, they tell you. Along the way, we 17 have notes. 18 Q Did Mr. Gamboa tell. you anything about this 19 offense? 20 A I have some sketchy notes, but -- 21 Q What did he tell you? 22 A Well, he said he didn't do it. 23 Q Okay. Did he say who did it? 24 A Well, that's all --basically, from-- 25 Q No.

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1 "Yes" or "no"? 2 Did he say who did it? 3 A Well, no, not -- not definitely, but there was -- 4 but that's to me, that's hearsay and I don't 5 Q Well, it's not hearsay because it was coming from 6 him and we are allowed to ask questions about what he said. 7 A Right. 8 Q So, did he offer who might have done it, if he 9 didn't do it? 10 A Well, there are some names and I can show you the 11 names, but I don't 12 Q And they were? 13 A I can show them to you, but I -- 14 Q You can't just say them? 15 A -- I don't want to -- Pardon me? 16 Q You can't just say it? 17 A I'd rather not, but I can show-- no, I can get 18 THE COURT: Well, here's how it works. If he 19 told you-- unless there's an objection, if he told you who 20 did it or anything that he said to you is fair game in this 21 proceeding~ unless there's an objection. 22 So, you can go ahead and testify as to what he told you 23 or --about who did it. I don't thi~k there's any-- 24 MR. LANGLOIS: Your Honor -- 25 THE COURT: I think it's fair game, unless

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1 there's some legal objection to it. 2 MR. LANGLOIS: I don't know what discussion 3 he had. I thought he already told him that -- he didn't go 4 into anything about the facts of the case and that's pretty 5 much the answer. 6 THE COURT: Well, I think his answer was that 7 he was told who did it and he had some names and he didn't 8 want to answer it and -- because it was hearsay. And, quite 9 frankly, that's not his call. 10 I think he's --there's not any reason why he can't 11 answer her question as she has posed it, unless, number one, 12 he didn't tell him or, number two, he doesn't know. 13 THE WITNESS: I'm sorry. 14 THE COURT: Okay. So -- so-- and there's 15 not a need to show it. I mean, if you've got a document in 16 front of you.where he said who else did it, then you can 17 answer that question. 18 THE WITNESS: I'm sorry, but I don't think 19 if I said that he said who did it, I think I misspoke. 20 THE COURT: I'll tell you what: Let's start 21 over. Ask your ·question again. 22 Q (MS. WELSH) When you were speaking with 23 Mr. Gamboa -- I'll ask both quest1ons again -- did he 24 ever -- what did he tell you about whether or not he 25 committed the crime?

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1 A He denied doing the crime. 2 Q And in denying doing the crime, did he tell you 3 who did the crime? 4 THE COURT: That just calls for a "yes" or 5 "no" at this point. 6 THE WITNESS: Well, what level of -- Okay. 7 Your Honor, what level of certitude? 8 Well, I would have to say, you know, my -- my

9 interpretation, no. 10 . Q (MS. WELSH) Okay.

11 A He gave a name, but I -- 12 Q Did Mr. Gamboa suggest to you other individuals, 13 by name, that may have been involved with this offense that 14 he did not commit? 15 A I think -- yes. There were some -- 16 Q And those names were? 17 A there was some conjecture, but it's -- it's 18 conjecture. Look, I'm not -- I wasn't part of the police 19 investigation and that's not -- it wasn't my job. 20 Q Okay. Dr. De France, the point is perhaps you're 21 making it without even giving the names. The reason the 22 defense attorneys oftentimes do not expose their clients to 23 this type of evaluation is because they talk and they give 24 information that may come back to hurt them. 25 Do you see that?

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1 Do you agree with that? 2 A I agree with that. 3 Q Okay. So, the defense attorneys, in making their 4 decisions on what -- how in-depth they go and who is

5 evaluating their client, that all comes into play because 6 the clients talk; correct?

7 A The clients talk, yes. 8 Q Okay. And he told you he didn't do it. But did 9 you see any other reports on -~ of the other offenses that 10 he committed? 11 A I -- I heard about them, but I didn't see any 12 reports. 13 Q Because you've talked in terms about Mr. Gamboa 14 being reactive, perceiving threats and -- in fact, I think 15 in your -- your -- you talk about he would be rather passive 16 and feels comfortable in structure and routine. Those were 17 your words in your affidavit. 18 Are you aware that, on June 25~h of 2005, which was 19 right about the same time of this capital murder, that 20 Appellant was just hanging out with a buddy of his, found 21 some bullets for his revolver, put the bullets in it -- This 22 is testimony straight from the trial record, so I'm not 23 going on anything that -- it's not conjecture -- (reading) 24 He put some bullets in the gun, put the gun in his pocket 25 and told his friend to start his car, which his friend did

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1 because he thought that Gamboa might shoot him. 2 (Reading) They drove to an area -- by the way, 3 Appellant told the guy where he wanted him to go. They went 4 to the Prime Time Bar, Appellant got out, started talking to 5 some people and th~n just started shooting. He did the same 6 thing at a gas station, no apparent threat, no -- he went up 7 to the people with the gun. 8 (Reading) In fact, there was one incident where 9 Appellant saw a Corvette and said he was going to jack the 10 guy, he told his friend. Appellant saw two girls and asked 11 them to pretend to be prostitutes, so that the guy would 12 stop, but the girls refused. 13 This doesn't sound like a person reacting. He sounds 14 like he's he's planning something, he wants that Corvette 15 and he has a plan to get it. 16 Wouldn't you agree? 17 A Well, I'm not familiar with the-- those 18 scenarios. 19 Q Those --that's not just a scenario, sir. Those 20 were facts -- 21 A Well, they may be. 22 Q -- that came out at trial. 23 A They may be, but you're asking me to comment on 24 it. The -- I don't think that's totally inconsistent 25 with -- with our findings, but our findings are pretty clear

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1 that he tends to be more passive than being proactive. 2 Q So, in the facts of this case -- 3 A But I can't speak -- I can't speak to the facts 4 and the circumstances. That's why when we do these 5 evaluations -- I mean, we're not the judge or the jury. I 6 mean, we don't determine guilt or innocence. What we are 7 asked to do is provide information to the court. 8 Q Well, in fact, that brings -- you talked about 9 you're there to ask -- answer the question "why" and we've

10 done studies /

11 A Sure. 12 Q -- throughout history trying to understand why, 13 right, why people do bad things 14 A That's true. 15 Q -- right? 16 A Absolutely. 17 Q And as a society, would you agree that it makes us 18 feel better sometimes to think that there's some reason that 19 a person is committing crimes, other than they are just flat 20 out mean? 21 A I would very much agree with that. 22 Q You talked about him being good in organized 23 settings or he would be passive . 24 .Are you aware that, in December 14th, 2007, shortly 25 after being sent to death row he assault~d one of the other

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1 inmates with a spear that he made himself? 2 And this is not out in general population. He pushed 3 the spear through his the hole in his door, in his cell, 4 to try to attack this person, unprovoked, he's in his own 5 secure cell, he modifies whatever he can come up with and 6 makes a spear, so that he can stab someone and then flushes 7 it down the toilet. 8 Were you aware of that? 9 A I was aware of the -- of the event, but I don't 10 know the particulars of the circumstance; so, I'm not sure 11 what you want me to comment on. I mean -- 12 Q I am just stating that he is in prisGn now, he is 13 on death row, he is in a very secure situation, he 14 shouldn't -- if he's as passive as yqu say he is, then on 15 11 -- November 21st of 2008, he assaulted an officer. 16 On January 11th of 2009, he assaulted an offic~r, again 17 with a weapon that he made, 12-inch piece of rolled up 18 newspaper with razor blades attached, that required 19 treatment beyond first aid. 20 Again, he stabbed through the slot in his cell door, so 21 nobody's even safe to walk by his cell, and then he flushed 22 it down the toilet, so that no one would find any evidence 23 of it. 24 January 30th of 2009, he assaulted an officer by 25 throwing a homemade spear. He likes to make weapons,

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1 apparently, because then he flushes them, so he has to 2 remake them. So, he made another weapon and he attacked the 3 officer as they tried to remove him from the day room. He 4 speared him in the leg. 5 February of 2009, he possessed a weapon, intended to 6 injure, again something he made, rolled up -~ paper rolled 7 up, with a piece of metal four inches in length, attached to 8 the end and sharpened, so -- and the list goes on, I might 9 add. I mean, it's -- it continues to go on, which seems to 10 suggest that even in the prison environment he's not 11 necessarily going to be passive and he 12 A Well, I think I think the point that Dr. Milam 13 made and our data suggests or indicates that he's going to 14 do best when ~here's a lot of routine and consistency and 15 where things are simple, but he's going to be reactive, not 16 going to be proactive. 17 Now, I don't know the circumstance for those things. I 18 believe what you say, because I'm sure it's documented, but 19 I think you need to look at the motive, if there was -- if 20 something was triggered in this gentleman. 21 I don't know. Now, I -~ and nobody -- nobody is 22 claiming that he's a saint, that all of his behavior has 23 been exemplary and nobody's saying it's excuseable, okay, 24 but what we are trying to do is figure out why. 25 And like you were asking, we want to know why, because

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1 it makes - - i t ' s helpful. But more than that, it's -- it 2 comes down to the basics that says what is his level of -- 3 of blameworthyness. 4 Yes, he may have done some of those deeds, but if we 5 look at -- if we take his behavior and look -- take a 6 broader view of it, if we understand it, then maybe we 7 can -- it's not to excuse it, but maybe we can see another 8 way for justice to be s~rveed. 9 Q Do you see how statements like lack of adequate 10 controls -- let's see, I think you .used some statements 11 like -- I can't find them-- basically, that he had no 12 impulse control. 13 Do you see how that could be -- no doubt -- Here we go,

14 (reading) No doubt he would have been acting reflexively, 15 without regard to the consequences; he has -- doesn't have

16 the ability to understand those consequences; he has total 17 lack of control. 18 Do you see how that might come across as or be a 19 two-edged sword when it comes to deciding what to put before 20 a jury? 21 A Well, I think-- I think that's --that is a 22 fairly accurate reflection of the situation. I don't know 23 all the -- the jury needs to make their own decisions, but 24 that's the-- I think that's --reflects the facts of the-- 25 of the situation.

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1 Q Well, the fact that it's a two-edged sword, 2 meaning that somebody could look at.that and say, Oh, poor 3 thing, let's give him a bre~k, somebody else could look at 4 it and say, Oh, my gosh, this person's got to go, he's a 5 total danger -- 6 A Absolutely. 7 Q -- those are things that the defense attorney has 8 to weigh; right? 9 A Well -- and we weigh, too. Because when we do 10 these things -- I'm going to digress. The one place where 11 I've got to disagree with Dr. Milam is we do make risk 12 assessments, because public safety is an important issue. 13 And ~ot everybody likes to hear what we have to say, in 14 terms of defense attorneys, about -- about their clients, 15 but it is a two-edged sword, definitely. 16 But if there is -- if there is a history of unprovoked 17 assault, then that needs to be handled and controlled -- 18 Q Well -- 19 A ~-but that's not --all we're-- all we're doing 20 is -- is -- when -- when people -- people have different 21 styles of -- varying styles of the way that they handle 22 things, and that's .what we are --that's what we're testing, 23 in part. 24 We're testing trait factors, in part, but sometimes 25 we're testing these trait factors, that there are -- there

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1 are predictable ways of responding, and that's what 2 Dr. Milam and I were looking at, in part. 3 We are making our judgments, our conclusions, about how 4 they respond in a -~ in a prison environment, based upon 5 those kinds of traits. And the literature shows, I think, 6 that the level of service -- you know, it helps us determine 7 the level of service, that, you know, he should do best in 8 a -- in a controlled setting, but we are not saying that he 9 would be doing well to be released--- 10 Q I'm going to say, if that's his best, then we're 11 in big trouble; right? 12 A Well, I think we need to know the circumstances, 13 with all due respect. There's more to the story. 14 Q Well, with all due respect, he is in his cell, he 15 has fa~hioned a dagger or a spear and he reaches out to 16 someone that is crossing by his cell door. That's the 17 facts. 18 A But that's -- 19 MR. LANGLOIS: Judge -- 20 THE COURT: Hold on a second. 21 Mr. Langois? 22 MR. LANGLOIS: ~- we are getting into the 23 punishment phase of the trial. This doctor, you know, ?4 talked about executive functioning and how it affects a 25 person. It has nothing to do with the behavioral, and we

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1 are past things like that. 2 He never testified that he wouldn't do anything. He 3 just explained exactly -- you know, based upon his brain 4 damage and stuff like that, at how that affects certain 5 things, having the controls, affect and stuff like that. 6 All this testimony here is just not even relevant -- 7 THE COURT: Okay. 8 MR. LANGLOIS: to this Hearing and I would 9 object to it 10 MS. WELSH: Your Honor -- 11 MR. LANGLOIS: -- if she wants to make the 12 point, you know, he did this, those are things up in TDC. 13 That has nothing to do with how his brain is functioning; 14 that's all. 15 THE COURT: Okay. 16 MR. LANGLOIS: If she wants to be -- certify 17 herself as an expert, that certainly has more authority and 18 more knowledge than our doctor does, then she should get up 19 on the stand and take it. 20 But, you know, the questions relate to whether or not 21 these studies were valid and whether or not the executive 22 functioning is something that the jury should have heard. 23 That's the whole ,thing, not what he's done up in prison, you 24 know. That would go to, you know, future dangerousness and 25 we are not into that area.

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1 MS. WELSH: May I respond? 2 THE COURT: I'll give you a little latitude 3 on that, just tie it into his expertise, rather than just 4 questioning him on whether or not he knows it happened. 5 MS. WELSH: Well, I -- 6 THE COURT: That's my ruling, so you can 7 continue your questions. 8 MS. WELSH: I actually don't have that much 9 more on that. 10 THE COURT: Okay. 11 Q (MS. WELSH) The -- the bottom line being that in 12 your affidavit that you did talk about whether or not he 13 would be -- do well in these settings and -- and Dr. Milam 14 did the same thing, talked about the same thing; correct? 15 A That's correct. 16 MS. WELSH: Your Honor, at this time, I would 17 like to offer into evidence the prison records, just because 18 I had referred to them, just so that they are part of the 19 record. 20 You have the originals along with the business 21 affidavit in the court's file. I filed them and gave 22 notice. Just because I did refer to· those incidents, they 23 will be part of the record. 24 THE COURT: Okay. Is that -- it was file 25 stamped the 9th of April?

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·1 MS. WELSH: It's -- it's in a manila 2 envelope, yes, sir. 3 THE COURT: Okay. Mr. Langlois, any 4 objections? 5 MR. LANGLOIS: Judge, I don't understand the 6 relevancy of those criminal records. It has nothing to do 7 with this. This is not a punishment hearing. 8 THE COURT: Okay. 9 MR. LANGLOIS: It has to do .with whether or 10 not -- you know, the issues that I raised in the Writ. I 11 don't understand why she is bringing that in. It has 12 nothing to do with it. It's post-trial. 13 · The whole issue here is what happened at trial, whether 14 or not Mr. Gamboa received the effective assistance of 15 counsel and whether or not there was, you know, testimony 16 that should have been provided at that time. 17 I don't see anything that happened after· the conviction 18 that is relevant in this case and that's exactly what those 19 reports are about. 20 THE COURT: Okay. Is there an exhibit number 21 on them or are they just part of the 22 MS. WELSH: No. I need to have them marked. 23 THE COURT: Just so I can rule on that. 24 (State's Exhibit No. 1 marked.) 25 MS. WELSH: And, again, the purpose that the

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1 State is offering those is simply because I did allude to 2 them, based on the doctor's affidavit on what --kind of how 3 he would be in controlled situations, and I'm going to move 4 away from that at this point. 5 THE COURT: Okay. Here's my ruling: For 6 now, they are admitted. When you submit your proposed 7 findings of fact and conclusions of law, quite frankly, they 8 would be relevant and admissible only as it goes to his 9 testimony and how he reached his opinions about the 10 Defendant, not as to any issues of future danger or about 11 his conduct in prison, so -- 12 MR. LANGLOIS: He never testified about his 13 future dangerousness, your Honor. 14 THE COURT: That's what I'm saying. So, my 15 point is they are only relevant to the extent that he has 16 interviewed the Defendant, he's testified about his 17 functioning. And so, I don't I don't believe, at this 18 point, that they are relevant to any issues of future danger 19 in prison. 20 So, quite frankly, I'm going to let them in. I don't 21 know how they are really going to factor into any proposed 22 findings of fact and conclusions of law. Now, you can 23 submit them to me, I'll I'll consider them, and then you 24 can make any objections on those proposed findings that you 25 want.

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1 I'm just going to allow them in, only because he's 2 referred to them a couple of times and he's aware of them. 3 Okay. 4 MS. WELSH: And, again, your Honor, just 5 because I referred to many of the incidences that are in 6 there, that's just to show that I wasn't making something 7 up -- 8 THE COURT: Correct. 9 MS. WELSH: -- that I had it on paper. 10 THE COURT: Correct. 11 Q (MS. WELSH) Just a few final questions and then 12 I'm finished. When you were reviewing things for your !3 evaluation of Mr. Gamboa, as well as testifying here, did 14 you review any findings made by a Dr. Gilbert Martinez? 15 A No. I did not. 16 Q Did you see any reports or any findings made by a 17 Nadine Maz? 18 A No. 19 Q Did you talk to any people that know the Defendant 20 but aren't his f~mily?

21 A No. 22 Q In fact, from what I gathered from you, really, 23 you're concentrated on your testing and -- and him pretty 24 much. Is that fair? 25 A That. And Dr. Milam•s file, yes, that's true.

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1 MS. WELSH: Pass the Witness, your Honor. 2 THE COURT: Mr. Langlois? 3 REDIRECT EXAMINATION' 4 BY MR. LANGLOIS: 5 Q Dr. De France, you were questioned by the 6 prosecution over the issue of who made the decision to 7 decide, you know, what was going to be presented at trial 8 and, obviously, you had-- weren't even concerned with what 9 happened at trial; is that correct? 10 A That's correct. 11 Q All your involvement in this case has been 12 post-trial? 13 A That's correct. Yes, sir. 14 Q Okay. And you were asked by Mr. Jay Brandon, who 15 was the original Writ lawyer for Mr. Gamboa, to evaluate the 16 executive functioning; is that correct? 17 A That's right. 18 Q Okay. And executive functioning, basically, is a 19 consistent factor, is it not? 20· A It is. 21 Q Okay. And it has -- it is a determination of 22 whether or not there is brain damage or brain impairment; is 23 that correct? 24 A Well, those are separate questions in a way, but 25 we found that -- deficits of executive functioning, some of

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1 which could be developmental. But we found evidence, too, 2 that it looked like it was actual acquired brain trauma. 3 Q And your evaluation established that Dr. Milam 4 certainly did some thorough testing; is that correct? 5 A Yes. I mean, our -- our testing actually agrees 6 with hers: The issue -- the issue is that she -- she didn't 7 explore some critical areas that should have been explored. 8 Q And that was your -- and that was your 9 determination, that there's other areas, particularly the 10 executive function area, that she did ' not cover in her 11 testing? 12 A That. And personality organization -- 13 Q Okay. 14 A -- and a working memory, yes. 15 Q And based upon that, that evidence likely would 16 have benefited the jury in making their decision on 17 mitigating factors; is that correct? 18 A Yes. 19 MR. LANGLOIS: Okay. No further questions. 20 THE COURT: Anything else? 21 MS. WELSH: Nothing further, your'Honor. 22 THE COURT: Okay. Can he be excused to go 23 back to

24 MS. WELSH: Yes.

~

25 THE COURT: -- Houston or Maine.

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1 THE WITNESS: I'm going to Houston, sir. 2 THE COURT: Okay. Doctor, thanks again. I 3 appreciate it. 4 Anything else, Mr. Langlois? Any other witnesses? 5 MR. LANGLOIS: Not at this time, judge. 6 THE COURT: Okay. State? 7 MS. WELSH: Nothing, your Honor. 8 THE COURT: Okay. Any other evidence I need 9 to consider? I know there was some rumblings about an 10 affidavit that was mentioned yesterday. Do you have another 11 expert that could not be here 12 MR. LANGLOIS: Yeah, Dr. Weaver. 13 THE COURT: Okay. 14 MR. LANGLOIS: At this time, judge, I'll 15 offer intb evidence -- well, it's evidence -- his 16 affidavit's been submitted with the Writ and ask the Court 17 to consider that-- or, within the Court's power to consider 18 affidavits in the use of findings of fact and conclusions of 19 law, if it becomes applicable. 20 THE COURT: Anything from the State? 21 MS. WELSH: Yes, your Honor. The affidavit 22 is attached to the Writ, which simply makes it -- supports 23 the Writ and perhaps gets him in a hearing; however, we are 24 now in a hearing and the affidavit is in violation of the 25 rules of .evidence. It's hearsay, inadmissible and we object

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1 on that basis. 2 THE COURT: Okay. Let me just ask the 3 parties real quick: I understand, at least in a proceeding 4 like this, that the rules of evidence, typically, apply that 5 an affidavit, although it's sworn to, would not afford the 6 opposing side the opportunity to question or cross-examine 7 the affiant in that matter. 8 Mr. Langlois, any-- any response to that, that {t's 9 just been attached to the Writ? 10 I know it's common that affidavits are attached, which 11 kind of gets us into court. 12 MR. LANGLOIS: I believe that, while the 13 rules of evidence do apply at the hearing, the judge can 14 also, you know, regulate or have the discretion to allow 15 affidavits and -- and the testimony. 16 THE COURT: Okay. 17 MR. LANGLOIS: My position is that I think 18 that they are admissible if the judge, you know, allows them 19 to be considered. 20 THE COURT: Okay. Let me just make 21 MR. LANGLOIS: Certainly, the State has a 22 right to file an opposing affidavit to his affidavit and 23 they did not. 24 THE COURT: Let me just make this ruling on 25 it: Before we formally rest and close on this, I'll give

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1 the State the opportunity to file any opposing affidavit, if 2 they feel it's appropriate. 3 Alternatively, I think it's already part of the Writ, 4 so it's there for consideration. What I will do is e-mail 5 each of the parties. If I have any concerns about the 6 affidavit or any questions about it, I'll advise the 7 parties. And if the State, at that time, chooses to file an 8 opposing affidavit, they can. Or, rather, than resting and 9 closing today, if my position is -- is that the affidavit is 10 sufficient for consideration based on the content of it, or 11 my review of any case law that relates to that, I'll advise 12 both parties and just come back and hear what that witness 13 has to say, if, in fact, you want to put him on. 14 So, I' 11 just I'll let you know within the next few 15 days how I'll proceed on that and then if, for some reason, 16 the State feels like it's appropriate to just file an 17 opposing affidavit, if you'll just let me know how long you 18 need to get somebody to respond to that, I'll give you the 19 .time to do it. 20 I'll have the Court Reporter go ahead and prepare the 21 record, based on everything we have done so far, and at 22 least we can kind of get things going and you can get your 23 proposed findings of fact and conclusions of law ready, or 24 just anticipate doing those as soon as Angie's done with the 25 record.

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1 Let me make it real 6lear on the TDC records, I don't 2 think this Hearing was about future danger. It was more 3 along the lines of merital issues involving the Defendant; 4 so, those records are being admitted not to establish that 5 the Defendant is a future danger, but simply to support the 6 State's position that Dr. De France either reviewed them or, 7 had he not reviewed them, that the representations made by 8 the State were accurate in the cross-examination of that 9 witness, not in supporting any claim that, in fact, the 10 Defendant's a future danger, so that the death penalty was 11 valid in this case. 12 Anything else that needs to be brought to my attention, 13 Mr. Langlois? 14 MR. LANGLOIS: No.t that I'm aware of at this 15 time, judge. 16 THE COURT: Okay. All right. Ms. Welsh? 17 MS. WELSH: The prosecution does not present 18 themselves as an expert in any type of neuropsychology, just 19 for the record. 20 THE COURT: Okay. So, what I'll do is I'll 21 advise I'll advise each of the parties, probably 22 within I may be able to do it tomorrow, since I had 23 planned to be here tomorrow to just do a little research on 24 the affidavit, I'll review it. 25 If I'm uncomfortable with the content of it, or if I

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1 just decide, Hey, it's all fair game, I'll let you know. If 2 you want to -- if you want to file an opposing affidavit, 3 everybody just gets a copy of the e-mail, just let me know 4 how long you think you'll take. 5 If -- if I feel that it's appropriate just to exclude 6 it and you want to bring in that expert, we can cross that 7 bridge on another day. 8 Okay. Anything else? 9 MS. WELSH: No, your Honor. 10 THE COURT: Okay. Mr. Gamboa, do you need to 11 talk to Mr. Langlois for anything? 12 THE DEFENDANT: No, sir. 13 THE COURT: Okay. Take care of yourself. 14 Okay. 15 P R 0 C E E D I N G C 0 N C L U D E D 16 17 18 19 20 21 22 23 24 25

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1 THE STATE OF TEXAS 2 COUNTY OF BEXAR 3 I, ANGELITA RANGEL JIMENEZ, Certified Shorthand 4 Reporter in and for the County of Bexar, State of Texas, do 5 hereby certify that the above and foregoing contains a true 6 and correct transcription of all portions of evidence and 7 other proceedings requested in writing by counsel for the 8 parties to be included in this volume of the Reporter's 9 Record, in the above-styled and numbered cause, all of which 10 occurred in open court or in chambers and were reported by 11 me. 12 I further certify that this Reporter's Record of 13 the proceedings truly and correctly reflects the exhibits, 14 if any, admitted by the respective parties. 15 I further certify that the total cost for the 16 preparation of this Reporter's Record is $ _________ and will 17 be paid by THE STATE OF TEXAS, COUNTY OF BEXAR. 18 WITNESS MY OFFICIAL HAND this the day of 19 ____________ , 2013.

20 /s/Angelita Rangel Jimenez 21 Angelita Rangel Jimenez, Texas CSR 6016 Expiration Date: 12/31/14 22 P.O. Box 680665 San Antonio, Texas 78268

23 Phone: (210) 288-0312 E-mail: . Srradj@sbcglobal.net 24 Court Cause No. 2005-CR-7168A-W1, Ex Parte: J. Gamboa Vol. 5 of 6, 4/24/2013 25

ANGIE RANGEL JIMENEZ, CSR (210) 288-0312

•

Certificate

THESTATEOFTEXAS * COUNTY OF BEXAR

I, Donna Kay M£Kinney, Clerk of the 379TH Judicial District Court, in and for Bexar County, State of Texas, do hereby certify that the above and foregoing are true and correct copies of all the proceedings had in the case of .

EX PARTE: GAMBOA, JOSEPH 2005CR7168A-Wl

I

HONORABLE BERT RICHARDSON PRESIDING the same appear from the originals now on file and record in this office.

GIVEN UNDER MY HAND AND SEAL of said Court at office in the City of San Antonio, Texas, on this the 6TH day of JANUARY, A.D., 2015.

Donna Kay M£Kinney

Clerk of the District Courts Bexar County, Texas

By__~r+~~~~~--------

JAM . OSlO

DEP ~ DISTRICT CLERK

************