Hypnotic Film

Judge Robert Gardner of Santa Ana, Calif., has the reputation of being an innovator. But even to Gardner, the request by the defense attorney was an extraordinary one. On trial was a young Filipino mother, Antonia Thomas, accused of murdering her six-day-old infant by feeding it some caustic substance from a baby bottle. She had already been found guilty in the killing once, but a mistrial had been declared. Between the trials, Defense Lawyer Dudley Gray had read in TIME (Dec. 29) about Thomas Kidwell, an accused wife killer who was shown to a jury on video tape; under a so-called truth drug, he had relived the apparent fact that his wife had shot him first. As a result, the charge against him was reduced from first-degree murder to manslaughter. Gray now sought to introduce a movie film of his client under hypnosis. Judge Gardner was stumped.

The video tape of Kidwell had not been formally introduced as evidence, instead was shown to the jury to back up the district attorney's decision to reduce the charge. Moreover, Judge Gardner was well aware that higher courts have rarely allowed any testimony related to statements made by a person undergoing a lie-detector test or under truth drugs or hypnosis. Still, Gardner was interested.

Horrible Burns. His solution was an elaborate wriggle. "I am tied by decisions of our higher courts," he admitted. "So we have to approach it through the back door. We have to say that we are showing this to the jurors not for the truth of the matters said in this movie, but so they will understand and be able to properly evaluate the testimony of the doctor and the basis upon which he eventually came to a rather brief diagnosis: that at the time of the unfortunate incident, the defendant had a state of mind not com patible with murder."

The specifics of the case were that Mrs. Thomas became pregnant shortly after her Marine husband left for over seas duty. Her husband, nonetheless, incorrectly believed that the child was his. Two nights after she brought her new son home from the hospital, the baby was discovered with horrible burns in his mouth. His gums had been eaten away by an unknown "caustic solution," and so had his larynx and lungs. After 16 days in the hospital, he died. Who would have killed him except his mother? asked the prosecution; her motive was that she was afraid her hus band would learn the truth.

"The Baby Died." Defense Psychiatrist David Johnston testified that Antonia was not capable of murdering her child, and then showed the 47-minute film of one of the hypnosis sessions that had led to his conclusion. In it, Johnston is seen putting her into a trance, then taking her back to the night of the baby's death. She had been given a sedative, she says, and as Dr. Johnston snaps his fingers she remembers being wakened. "The baby cry again," she says. "The baby needs to be feeded, and got to get the bottle. The baby was crying." Now her voice becomes a whimper. "He was crying. He was crying. I said what's wrong with you. The baby's sick. The baby's sick. The baby's sick." She sobs hard. "Help! The baby's mouth! It's getting dark. I don't know why. I don't know why. My baby sick. My baby sick." Dr. Johnston moved to a scene 16 days later, when a policeman came to her motel room. "It was a cop at the door. He say the baby died. The baby died. The baby died. I don't know what happened. The baby always clean. I always change and feed. . ."

To anyone seeing the film, her be wilderment and distress seemed achingly real, but the jurors had been carefully instructed not to consider it as direct testimony. Though they could hardly ignore it, they had also to remember that hypnosis is not an infallible prod to the truth. Mulling all of this over, the jury deliberated for two days. "It's a rare case," said Judge Gardner.*Finally, late last week, the jury unanimously returned a verdict of guilty of murder in the first degree. Said Judge Gardner afterward: "My gamble paid off. The verdict has confirmed my faith in the jury system. They viewed that film, then took into account all the other evidence, and considered it only for its bearing on the psychiatrist's testimony."

*And he made it still rarer. On the second day of deliberations, instead of packing the jurors back into the jury room after lunch, he put them alone on a county sightseeing bus, where they could argue and think amid the pleasanter surroundings of passing scenery.

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