PART 35 (49 page)

Alvarado responded to Ellis's cross-examination that he had been assigned legal counsel when he was first arraigned in court. However, he did not even speak to this lawyer at that time. The lawyer merely stood beside him and had the case adjourned. Alvarado said he had never had an opportunity to speak to the lawyer. He admitted he did not complain to the lawyer about the police beatings.

“And when you were in court on July fourth, did you tell the judge you had been beaten by the police.”

“No, I didn't tell that.”

“When you were brought to the Tombs, did you receive a medical examination?”

“Yes, sir.”

“Did you tell the doctor who examined you that you had been beaten?”

“I don't think I have a chance to tell him that.”

“Did anyone stop you from speaking when the doctor was examining you?”

“No, sir.”

“And didn't the doctor ask you questions?”

“I believe so.”

Ellis took out Alvarado's blue medical record cards, which had been subpoenaed from the Tombs. He introduced these into evidence, then stood before Alvarado, reading them.

“Didn't you tell the doctor you were an addict?”

“I believe so.”

“Is there any doubt about that?”

“No, sir.”

“And didn't he give you pills for your withdrawal pains?”

“I was a little sick then, but it was pain from the beating.”

“But you didn't tell the doctor about the beating, did you?”

“No, sir.”

“You didn't tell anyone about the beating when you were in court or when you were first brought into the Tombs, did you?”

“No, sir.”

“You didn't tell anyone about this beating until after you were in the Tombs six days and had a chance to realize the tough position you were in?”

“Objection.”

“Sustained.”

“I have no further questions.”

Sandro rose and walked to Alvarado.

Alvarado testified that while in the Tombs, a few days after first being committed there, he had to be sent to Bellevue after suffering some sort of attack where he couldn't breathe and from which he had passed out on the floor in his cell. A doctor from the Tombs treated him with oxygen, and then an ambulance rushed him to Bellevue where he underwent various examinations. He was returned to the Tombs sometime the next morning.

Sandro questioned Alvarado about any previous history of fits, seizures, epilepsy, or the like. He had had none, nor had anyone in his family.

Alvarado testified that his heroin habit cost about six dollars a day. Although he had been taking narcotics for eight years, his habit was small, and it had been broken by three visits to prison, one lasting as long as two and a half years. He had also been on self-imposed withdrawal from time to time.

Sandro had no further questions.

Sandro and Sam were pleased. Alvarado had held up well under cross-examination. Suddenly, they turned as Siakos stood and began to ask Alvarado questions.

“Now, Mr. Alvarado, when you were in court with Hernandez, did you speak to your lawyer?”

“No, sir.”

“Did Hernandez?”

“I'm not sure. I don't think he did.”

“Was there some reason for this?”

“I wasn't feeling too good.”

“What the hell's he doing? That's
our
defendant on the stand,” Sandro said. “Every question is potential dynamite. He might open doors we can never close.”

“What the hell can we do?” Sam whispered. “Go up there, and tell him to sit down.”

Sandro stood, walked to Siakos, and whispered the message as firmly as possible while yet maintaining his outward calm before the jury. Siakos nodded, then asked Alvarado if he had seen Hernandez at any time on July 3rd. Alvarado said no. Siakos asked if he had ever been in Hernandez's apartment. Sandro was just starting to his feet again as Alvarado answered “No,” and Siakos quit.

Sandro called for a doctor from the Tombs as his next voir dire witness. It was Dr. Joseph Waters, who had examined Hernandez, again. Sandro wanted him to decipher Alvarado's medical records from the Tombs. The doctor, looking just as much like a butcher as before, testified that Alvarado had been given an examination prior to his being put into a cell in the Tombs on July 4th, 1967, and that examination revealed a man who had been a drug addict for eight years and who was suffering at the time of his commitment from withdrawal symptoms relating to narcotics.

The doctor admitted that at no place on the chart of that first physical examination was there an indication of a pulse rate, a heart rate, an evaluation or report of the patient's head, lungs, chest, abdomen, or anything else. No X-rays had been taken. The doctor indicated that the examination was more or less a gross-inspection examination, where the doctor stands some distance from the patient and merely observes him.

Dr. Waters acknowledged that the doctor who had made this cursory initial examination of Alvarado had already obtained from Alvarado the information that he was an addict, and so might have attributed the poor appearance and condition of the prisoner to withdrawal symptoms.

Sandro questioned the doctor concerning the reports of the illness which caused Alvarado to be transferred to Bellevue on July 9th, 1967. Ellis objected. He wanted Dr. Maish, the doctor who had actually examined Alvarado in his cell and sent him to Bellevue, to testify. Sandro said that he had subpoenaed Dr. Maish, but he had not as yet arrived.

The judge called recess for lunch, telling Sam to call the doctor's office to be sure he would arrive after lunch.

In the afternoon, Dr. Edward Maish, took the stand. He was tall, bald, gaunt. He testified that he had found Alvarado on the floor of his cell on July 9th, 1967, and as a result of his diagnosis, had sent him to Bellevue for further examination. The doctor said he did not recall all the circumstances of that evening, but he was sure he could refresh his memory from his charts. Sandro introduced Alvarado's medical card, relating to that night, into evidence. He had the doctor read it aloud to the jury.

Patient was found unconscious on floor. An apparent clonic seizure, Cheyne-Stokes breathing, spasmodic shaking, tachycardia, rapid pulse, exquisite tenderness in the epigastrium. In lucid moments, patient stated he was beaten in police station.

The doctor described the apparent clonic seizure as a condition where the extremities were all twitching and shaking. In addition, Alvarado's eyes were rolled back, and he was salivating. CheyneStokes breathing was a special kind of abnormal breathing, the doctor explained, where first the patient breathed deeper and deeper, then stopped completely, then started in again with shallow breaths. Tachycardia was fast heartbeat.

The doctor said that he had also found Alvarado to have marked tenderness of the epigastrium. Sandro had the doctor point out the region of the epigastrium. The doctor pointed to the center of his chest, just beneath the rib cage, the very place where Alvarado said he had been punched by the police.

“There was also guarding and rigidity of the abdomen,” the doctor added.

“And what did that mean to you, Doctor?”

“That meant the prisoner might have been bleeding internally. That's why I sent him to Bellevue. When there's internal bleeding, there's also rigidity. From what he said about a beating, I wasn't taking chances. But the report from Bellevue was negative. No internal bleeding,” the doctor added with apparent pleasure.

Although the doctor's testimony was sliding smoothly into the minutes of the trial, Sandro could feel the doctor's reluctance, a hostility growing with each question. The doctor didn't appreciate being subpoenaed into court, away from his practice, and now, it apparently seemed to him, having his medical opinion questioned.

“Doctor, does the fact that there was no internal bleeding mean that Mr. Alvarado did not have a clonic seizure?”

The doctor studied Sandro. “No.”

“Does it mean he didn't have Cheyne-Stokes breathing?”

“No.”

“In other words, all the other things you diagnosed did not change, even though Bellevue ruled out internal bleeding?”

“Right. That's right.”

“When you use the words
apparent clonic seizure
, does that mean, as far as you could diagnose, that he was actually having a clonic seizure?”

“That's what I saw. It appeared that way to me.”

“What causes a clonic seizure, Doctor?”

“It's from the brain—brain disorder, something like that. He was having a fit.”

“Doctor, can you have a clonic seizure resulting from brain damage?”

“That's what I said.”

“A person could get hit in the head, and it might cause such damage. Isn't that right, Doctor?”

“No, not just a blow to the head.”

“How about if he was hit really hard, Doctor?”

“It would have to be very hard.”

“Suppose instead of something's hitting a person's head, his head banged into something hard, several times.”

“I'm not a neurologist. I can't tell you all the possibilities.”

“It could happen, couldn't it, Doctor?”

“I don't know. I guess so.”

Sandro studied the July 10th diagnosis sheet again.

“Doctor, how did you determine this exquisite tenderness in the area of Alvarado's epigastrium?”

“By palpating, touching the patient. He grimaced with pain.”

“And when you touched the epigastrium and there was a wincing on the face, that was an objective finding, was it not?”

“Yes.”

“Even while he was unconscious?”

“Yes.”

“Would that indicate to you that this objective finding was a severe injury?”

“It would indicate an injury.”

“You have certain medical tests, do you not, Doctor, to determine whether a person is conscious or not?”

“There are ways, and there are ways that addicts can fake these things. I've been in prisons for four years—”

“Doctor, I don't mean to interrupt you,” Sandro interrupted, “but I'd like to follow the questions chronologically. We'll save time if you will answer my questions, all right?”

“All right.” The doctor glanced at the judge.

“No one has mentioned anything about narcotics since you've been on the stand, isn't that right, Doctor?”

“No, but I'm telling you. You asked me.”

“I understand that, but we have to restrict ourselves to this case. Would you answer my questions, sir? I don't mean to cut you short, but I would like to keep a chronological order.”

“I did not know at seven o'clock this morning when I was served that I was going to become an expert. Otherwise I would have studied.”

“I understand that, sir.”

“I don't even remember the case, to tell the truth. I am trying my best. I did not come here to be cross-examined. I'm not on trial.”

“Doctor,” the judge intervened, “you're here as a witness to try to help the jury as best you can. Now, just do your best to respond to the questions. I'll try and get you back to your office quickly.”

The doctor nodded. “I certainly will.”

The judge nodded to Sandro.

“Doctor, are there certain tests to determine a person's consciousness?” Sandro asked.

“Yes.”

“What are the tests, Doctor?”

“Various things. Tactile stimuli, pinpricks, various things.”

“And when you said before that addicts can fake these things, you were aware, at the time you examined this defendant Alvarado, that certain illnesses or conditions, even unconsciousness, can be simulated by a prisoner.”

“I sure was. I've seen it.”

“And to be sure a prisoner is not simulating, Doctor, do you administer these tests carefully?”

“Sure.”

“And did you use these tests to determine consciousness on the defendant when you found him on the floor that night?”

“Evidently I did.”

“And the man was unconscious?”

“According to my report.”

“Is there any question about it in your mind, Doctor?”

The doctor read. “No. He was unconscious.”

“And that determination was made by you, being careful to account for a prisoner's being able to fake things.”

The doctor hesitated. “Right.”

“And, Doctor, can the other conditions you found, the clonic movements, the twitching of all the extremities, Cheyne-Stokes breathing, salivation, rolled eyes, be simulated?”

“In my opinion, yes. I've seen addicts do a lot of things.”

“Can any of these symptoms be simulated by an unconscious person, Doctor?”

The doctor stared at Sandro. “No,” he said, at last.

“Your witness, Mr. Ellis,” said Sandro, turning to the counsel table. Sam was looking down at his notebook, crowing softly.

Ellis questioned the doctor about his experience with addicts and the ability of addicts to simulate any sort of infection, disease, discomfort, or complaint in order to get out of prison and get to Bellevue or someplace where they might be able to get narcotics. The doctor indicated that anything could be simulated, even the clonic movements, the salivation, the rolled eyes, the Cheyne-Stokes breathing. He testified that he had sent the defendant to Bellevue as a precaution, for he wasn't sure what the defendant might have had, and he didn't want to take a chance.

“In other words, Doctor, you had some doubts about this patient, and you wanted him rechecked at Bellevue. Isn't that right?”

“Well, I must have had doubts. I didn't want him bleeding internally. Mind you, I don't recall the patient at all, but according to my report, I must have had doubts, otherwise I wouldn't have had him re-examined. Bellevue found he was not bleeding internally.”

“I have no further questions,” said Ellis, turning, resuming his seat.