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 1      MR. POPE:  If it please the court, Your Honor,
 2 the State would call Dr. Donald Morgan to the stand.
 3      THE COURT:  Let the record reflect that this is
 4 a hearing to determine competency under State
 5 v. Blair.
 6      DR. DONALD W. MORGAN, having been first duly
 7 sworn, testified as follows:
 8 DIRECT EXAMINATION BY MR. POPE:
 9 Q    Dr. Morgan, if you could state your name and
10 occupation for the court, please?
11 A    Donald William Morgan, professor of psychiatry,
12 University of South Carolina School of Medicine.
13 Q    Okay.  How long have you been employed there,
14 Dr. Morgan?
15 A    Fourteen years.
16 Q    Can you relate to the court what your specific
17 position is there at the University, and
18 particularly at William S. Hall Institute?
19 A    I'm the director of the Forensic Psychiatry
20 Training Program and coordinator of the Forensic
21 Psychiatry Training for residents and medical
22 students as well as fellows.
23 Q    Dr. Morgan, could you relate to the court your
24 background and training that allows you to perform
25 mental evaluations?

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 1 A    Yes, I'm a board certified psychiatrist.  I'm
 2 also certified in forensic psychiatry.  I have done
 3 a number of these evaluations over the years for a
 4 variety of courts, both criminal, civil, military,
 5 and family courts.
 6 Q    Okay.  Dr. Morgan, you said that you have done
 7 a none over the years.  Do you have an estimate of
 8 how many evaluations that you have done over the
 9 years?
10 A    Many many.  More than two hundred.
11 Q    Doctor, are you also licensed to practice
12 medicine here in South Carolina?
13 A    Yes, I am.
14 Q    And for how long?
15 A    For fifteen years.
16 Q    In addition or as part of your medical
17 education and training, have you specialized in
18 forensic psychiatry, is that correct?
19 A    Well, I did a rotating internship at Triplet
20 Army Hospital in Honolulu.  And then a three year
21 general psychiatry training at Walter Reed Army
22 Medical Center.  I then did three years at Donstead
23 Medical Center and received a degree of Doctor of
24 Science in medicine.
25      I have really never had any formal forensic

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 1 training because I was really in this field before
 2 we had formal programs, but I have tried the
 3 forensic boards and have passed them.
 4 Q    And, doctor, in competency hearings or
 5 testifying as a forensic psychiatrist, have you had
 6 an opportunity to do that in the courts in South
 7 Carolina?
 8 A    Yes.
 9 Q    Approximately how many times have you been
10 qualified as an expert?
11 A    Over a hundred.
12 Q    Okay.
13      MR. POPE:  Your Honor, at this time I would
14 move to have Dr. Morgan qualified as an expert in
15 forensic psychiatry.
16      THE COURT:  Do you wish to voir dire the
17 witness in regard to his qualifications?
18      MR. BRUCK:  No, Your Honor, we agree that Dr.
19 Morgan is eminently qualified.
20      THE COURT:  Very well.  The court will qualify
21 this witness to render an opinion in the area of
22 forensic psychiatry.
23      You may proceed, counsel.
24 Q    Dr. Morgan, pursuant to an order of this court,
25 dated March 23rd of 1995, did you have an

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 1 opportunity to evaluate the defendant Susan Smith?
 2 A    Yes.
 3 Q    I hand you up this order and ask if you
 4 recognize that?
 5 A    Yes, this is the order that we received from
 6 Judge Howard.
 7 Q    Pursuant to that order you did an evaluation,
 8 is that correct?
 9 A    Yes, sir.
10 Q    Okay.
11      (Order of Evaluation as to Competency and
12 Criminal Responsibility marked as State's Exhibit
13 No. 1 for identification)
14      MR. POPE:  We move State's Exhibit 1.
15      THE COURT:  For purposes of this hearing only,
16 State's Exhibit No. 1 into evidence.
17 Q    Dr. Morgan, pursuant to that order --
18      THE COURT:  That's without objection, is that
19 correct?
20      MR. BRUCK:  Without objection.
21 Q    Pursuant to that order, did you or other
22 persons examine or evaluate the defendant?
23 A    Yes, we did.
24 Q    And in addition to yourself, who also examined
25 or evaluated the defendant?

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 1 A    Dr. Geoff McKee, a forensic psychologist; and
 2 Dr. Tracy Gunter-Justice, who was at that time a
 3 fellow in forensic psychiatry and has now joined our
 4 faculty.
 5 Q    Dr. Morgan, prior to the actual examination of
 6 the defendant, were you able to review or obtain
 7 other information on the crime and on the
 8 defendant's background, and information such as
 9 that?
10 A    Yes, I did.  Your office supplied voluminous
11 reports and records of investigations and various
12 statements in a chronological fashion, which made it
13 very easy for us to understand the incident, the
14 circumstances surrounding the incident.  And prior
15 to seeing Ms. Smith, Mr. Bruck provided us with at
16 least as much information, much of that going to
17 background, her background and her prior psychiatric
18 difficulties and prior treatment, work history,
19 school history, and a partial draft of social
20 history that was done by Dr. Arlene Andrews.
21 Q    Were there other sources that either you
22 yourself and the other doctors gathered information
23 upon which you made your evaluation?
24 A    Well, Dr. Mckee had available to him rather
25 extensive testing that had been conducted prior to

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 1 our evaluation.  We looked at the information
 2 available within the Women's Correctional Center,
 3 the warden's jacket, her medical -- her current
 4 medical status.
 5      We did not do any independent evaluations of
 6 anyone prior to seeing Ms. Smith.  But following
 7 that, we had an opportunity to talk with Dr. Sey
 8 Halleck.  We had a conference with Ms. Andrews.  And
 9 we interviewed some people here in Union.
10 Q    Gathering that information or reviewing that
11 information, is that part of the standard procedure
12 of an evaluation?
13 A    The fact that she was a safekeeper and confined
14 to the Women's Correctional Center made it somewhat
15 different than our normal procedure.  Normally they
16 would -- this person with these charges would be
17 admitted to our hospital.  But we -- our hospital is
18 not a secure facility and we certainly could not
19 guarantee her safety.  But that's about the only
20 difference is that we don't have a twenty-four hour
21 a day nursing observations, nor did we control her
22 treatment.
23 Q    You said that you did not control her
24 treatment?
25 A    We did not control her treatment, which we

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 1 normally would have done.
 2 Q    As far as the difference that you were talking
 3 about versus the defendant being a safekeeper; so,
 4 in other words, instead of the defendant being given
 5 over to your custody at William S. Hall, you and
 6 others doctors were required to go to Women's
 7 Correctional for visits?
 8 A    Yes, sir.
 9 Q    Do you feel that that in any way would alter
10 your findings or change your findings in any way?
11 A    No, they would not change my findings in any
12 way.  That is not the usual thing that we do.
13 Normally they are admitted.
14 Q    But you have done that in other cases, is that
15 correct?
16 A    We have done it in several other cases, yes,
17 sir.
18 Q    Okay.  Doctor, in addition, you indicated that
19 you received a social history and a medical history
20 and various things that you gathered.  What is the
21 significance of all of this information?  How do you
22 use that in what you do?
23 A    Well, no single piece of information stands
24 alone.  And what we try to do is gather enough
25 information that we can verify from various sources

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 1 the information, rather than just saying well, the
 2 defendant told you something.  I mean, that -- well,
 3 that's terribly important.  Just having the
 4 defendant tell you something really is not as
 5 valuable as having other people confirm and finding
 6 records that predated the incident to help you
 7 confirm what's being said.  So that's very
 8 important.
 9      The other part of it is that in order to
10 understand criminal responsibility, one has to
11 understand the incident as best as possible.  And
12 that's where the records from your office with the
13 investigation and the statements and chronology was
14 very, very helpful.
15 Q    When you say the incident, you are talking
16 about the crime itself?
17 A    Yes, sir.
18 Q    Talking about criminal responsibility?
19 A    Criminal responsibility for the act itself.
20 Q    Doctor, when was it that you actually conducted
21 your examination of the defendant?  When did that
22 take place?
23 A    I saw her five times for one and a half to two
24 hours each time.  I was accompanied always by Dr.
25 Gunter, who took excellent notes, and Dr. Mckee, who

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 1 also took notes.  And they clarified things by
 2 interjecting and made sure that the data that we
 3 were going after we actually obtained.  More than --
 4 more than a check on myself, they are active
 5 participants.
 6      And the dates that I saw Ms. Smith was April
 7 20th, April 21st, April 24th, May 5th, and May 12th.
 8      Dr. Mckee saw her for psychological testing
 9 twice in addition to that.  I did not go over those
10 testing sessions.
11 Q    Did you and the other doctors make a
12 determination as far as the number of times -- did
13 you determine that schedule the number of times that
14 you felt that you needed to make a proper
15 evaluation?  You weren't limited in that regard,
16 were you?
17 A    We had no limitations.  We planned ahead of
18 time how we would conduct this.  We agreed upon
19 ourselves what would be reasonable.  Of course, had
20 we seen something different, we could have extended
21 it to -- you know, or we could have had any
22 extension that we wanted on the order.
23 Q    If you had needed --
24 A    If I had needed more time, we certainly could
25 have had more time.  And certainly the Department of

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 1 Corrections was very cooperative in allowing our
 2 access.
 3 Q    Doctor, are you familiar with the statutory
 4 requirements in South Carolina for a person to be
 5 found competent to stand trial?  Do you understand
 6 those requirements?
 7 A    It's my understanding that it's similar to the
 8 Duskie Standard, that the person must have a
 9 rational as well as factual understanding about the
10 charges and proceedings against the person; and that
11 the person must be able to cooperate with their
12 attorneys in their defense.
13 Q    Dr. Morgan, in determining if the defendant was
14 able to understand and determine that she would
15 cooperate with her attorneys, what did you and the
16 other doctors do to determine whether she understood
17 the nature of the proceedings?
18 A    Well, we began that on the very first day.  We
19 asked Mr. Bruck to accompany us to the interview.
20 We made sure that she understood her rights and had
21 her waive rights.  And there was discussion about
22 certain of those rights because of the order.  She
23 clearly participated in that.
24      She -- we wanted to tape record the interviews.
25 She clearly participated with her lawyer about

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 1 setting the limits on such procedures.
 2      And then we went through the standard kinds of
 3 factual questions; that is, did she know the charges
 4 against her; did she know the potential penalties;
 5 did she know the roles of all the court officers;
 6 did she understand the concept of plea bargaining,
 7 etcetera.
 8 Q    Doctor, did she in fact understand the crime
 9 she was charged with?
10 A    Yes, she certainly did, sir.
11 Q    And she understood the penalties for those
12 crimes?
13 A    Yes.
14 Q    Did she understand the role of the judge in the
15 court proceedings?
16 A    Yes, sir.
17 Q    And did she understand the role of the jury?
18 A    Yes, sir.
19 Q    Likewise the role of the prosecution?
20 A    Yes.
21 Q    And the role of the defense attorney?
22 A    Yes, sir.
23 Q    Dr. Morgan, from your and the other doctors
24 review of the defendant's history and your
25 examination, was there any indication that the

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 1 defendant was mentally retarded?
 2 A    There is no indication at all in any of the
 3 records that she's mentally retarded.
 4 Q    Based on your evaluations and the defendant's
 5 history, is there any indication that the defendant
 6 had any mental illness?
 7 A    Yes, she did have a mental illness, and she
 8 does have a mental illness.
 9 Q    Okay.  You said she did and she does.  Could
10 you describe the nature of the defendant's illness
11 both -- as you say she did and now that she does,
12 could you describe that, please?
13 A    It's our opinion and it is my opinion that at
14 the time of this incident, and before this incident,
15 Ms. Smith was suffering from what is known as an
16 adjustment disorder with mixed emotional features.
17 By that we mean that there is a specific stress or
18 set of stressers in her environment which cause her
19 to have emotional reactions to those stressers.  And
20 we believe that was present at the time of the
21 incident.
22 Q    And that was the adjustment disorder?
23 A    That's the adjustment disorder, yes, sir.
24 Q    You also have a current diagnosis of major
25 depression, is that correct?

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 1 A    Yes, sir.
 2 Q    Dr. Morgan, first as to the adjustment
 3 disorder, did that mental illness prevent the
 4 defendant from having the capacity to distinguish
 5 moral or legal right --
 6      MR. BRUCK:  If it please the Court, Your Honor,
 7 I think --
 8      THE COURT:  Before you answer the question,
 9 counsel?
10      MR. BRUCK:  Relevancy.
11      THE COURT:  Objection?
12      MR. BRUCK:  Relevancy.  I don't think that is
13 the topic with which this hearing is about.
14      THE COURT:  Mr. Pope, I'll hear from you.
15      MR. POPE:  If it please the court, Your Honor,
16 I think the whole issue has been from the beginning
17 the question of competency, the question of sanity,
18 the question of understanding the proceedings, of
19 understanding right from wrong.
20      Once again, I am now to the point that Dr.
21 Morgan has said that there is a mental illness.
22 That is something for the court to take into
23 consideration.  We now need to determine what, if
24 any, effect that mental illness has on anything the
25 defendant would be able to understand or any

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 1 progress that should be taken as far as the court
 2 step here, Your Honor.
 3      Again my concern is we now have done just like
 4 we did before with the newspaper, it's out that
 5 she's got a mental illness --
 6      THE COURT:  All right.
 7      MR. POPE:  -- we don't have the opportunity to
 8 explain it.
 9      THE COURT:  Dr. Morgan, is there any connection
10 in your evaluation between your consideration and
11 findings as to responsibility in your determination
12 of competence?
13      THE WITNESS:  No, sir.
14      THE COURT:  None?
15      THE WITNESS:  No, sir.  Those are separate
16 questions for us.
17      THE COURT:  And so your evaluation, your
18 indications, the things that you take into
19 consideration, etcetera, with regard to legal
20 responsibility do not play any part in your
21 evaluation, or decision making, or your opinion as
22 to competence?
23      THE WITNESS:  They are really totally separate.
24      THE COURT:  All right.
25      THE WITNESS:  In my mind.

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 1      THE COURT:  All right, sir.  I'll sustain the
 2 objection.  Proceed.
 3 Q    Dr. Morgan, my question is, then you are saying
 4 that the adjustment disorder has no effect on the
 5 competency whatsoever?
 6 A    Adjustment disorder has no effect on her
 7 competency now.  Now she suffers from a major
 8 depression.  And while she retains her understanding
 9 of these proceedings, she is far more suicidal than
10 when we evaluated her in late April.
11 Q    Is her adjustment disorder such that she cannot
12 conform her actions or understand what the defense
13 is telling her?
14 A    No, she can understand.  Even with her major
15 depression, she can understand these proceedings.
16 Q    Can she conform her conduct at all?
17 A    Currently, yes.
18 Q    Previously?
19 A    Yes, sir.
20 Q    Dr. Morgan, you say she now has a major
21 depression, is that correct?
22 A    Yes, sir.
23 Q    Can you relate to the court what this major
24 depression is?  Can you describe that to the court?
25 A    She has sleeplessness, change in appetite,

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 1 suicidal ideation, crying spells almost daily,
 2 hopelessness, feelings of worthlessness, some --
 3 currently she's better, but when we saw her back in
 4 late April, she actually had some slowing of her
 5 thoughts, but now that is not her.
 6      Her depression has improved, even though her
 7 suicidal ideation and her suicidal intention have
 8 increased.
 9 Q    Again I want to make sure I understand.  Doctor
10 Morgan, you evaluated her previously, and, of
11 course, you evaluated her today?
12 A    Yes.
13 Q    As well, you and the other doctors, is that
14 correct?
15 A    Yes, for an hour today.
16 Q    And as I understand, in your initial evaluation
17 report, you said major depression.  Now since then
18 have you been able to treat that depression?
19 A    No, I have not.  But since our evaluation, she
20 has been changed in her medication and she has been
21 placed on an antidepressant, Prozac.  She's had that
22 now for approximately six weeks.  And her actual
23 mood has improved.  That is, she's able to interact
24 more spontaneously.  She will tell you that her mood
25 doesn't go up and down.  She doesn't have a lull,

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 1 these terrible lulls.
 2      But on the other hand, as she looks at the
 3 reality of the situation, she's really become much
 4 more suicidal.  And that is not unusual for the
 5 course of depression.
 6 Q    So, again, she is -- based on the medication,
 7 she is out of the depression from what she was?
 8 A    From what she was.  She certainly not --
 9 Q    She's better able to --
10      THE COURT:  I'm sorry, doctor, I didn't hear
11 that last part.
12 A    She is still very depressed, but she's better
13 than when we saw her in April.
14 Q    She's improved?
15 A    She has improved.
16 Q    And, in fact, has a better understanding of the
17 reality of the situation now than she did in April,
18 is that correct?
19 A    Yes.
20 Q    Okay.  Dr. Morgan, there is no way for you to
21 tell specifically or quantifiably what brings on the
22 depression; whether it's the trial she's facing, or
23 the loss of the children, or any of this?  There is
24 no way to quantify what's causing that depression,
25 is there?

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 1 A    There is no way to sort that out.  She probably
 2 has a biological component.  She had depression
 3 before when she was eighteen.  Clearly she has the
 4 stress of the situation.  She clearly has the
 5 reality of the crime itself.
 6 Q    Now, Dr. Morgan, this depression as it
 7 currently manifests itself, how does that affect
 8 competency as you have indicated as far as ability
 9 to assist her attorney, or to understand the courts,
10 or anything of that nature?
11 A    That doesn't affect her cognitive ability or
12 her ability to work with her attorney.  It does
13 affect her self-protectiveness; that is, the desire
14 to be self-protected.  Currently she really doesn't
15 care and really has felt even more guilty and more
16 worthless than when we saw her back in April.  And
17 again I think that's because she now has more energy
18 to think about the reality of what's happened.
19 Q    And, again, the fact that the defendant has now
20 the ability to more fully appreciate the reality of
21 the situation does not alter your opinion that she
22 is in fact competent as far as the proceedings are
23 concerned, is that correct?
24 A    That's correct.
25 Q    Okay.  Dr. Morgan, pursuant to the order,

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 1 State's Exhibit 1, you issued a report, is that
 2 correct?
 3 A    Yes.
 4 Q    Okay.  I show you that and ask you if you can
 5 identify that?
 6 A    Yes, this is a copy of the original, if the
 7 original doesn't have those little check marks on
 8 it, but that's a copy.
 9      THE COURT:  Counsel, do you wish the original?
10      MR. POPE:  Your Honor, I had made a copy to put
11 into evidence.  I can use the copy if need be.
12      THE COURT:  All right, sir.
13 Q    Dr. Morgan, this reflects the findings of your
14 evaluation previously?  What it would not reflect is
15 the additional understanding --
16 A    That we had today.  It reflects everything up
17 until the evaluation today.
18 Q    And at that time the competency to stand trial:
19 She did have that competency and still does, is that
20 correct?
21 A    That's correct.
22 Q    Okay.  And criminal responsibility and capacity
23 to conform:  She has the capacity to conform her
24 conduct to law and is criminally responsible, is
25 that correct?

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 1      MR. BRUCK:  If it please the court, Your Honor --
 2      THE COURT:  Sustained, counsel.  I already
 3 ruled on that.  That's not relevant to these
 4 proceedings.
 5      MR. POPE:  Your Honor, I would put State's
 6 Exhibit No. 2 into evidence.
 7      MR. BRUCK:  I would like to see it before it's
 8 offered in evidence, please.
 9      I have no objection to admitting the portions
10 of this report relative to this proceeding.  And I
11 would also prefer that a version of the report that
12 does not have check marks from Mr. Pope be admitted.
13      MR. POPE:  If it please the court, I'm not
14 aware of the check marks.
15      THE COURT:  They might just be copying marks.
16 But be that as it may, you had indicated prehearing,
17 counsel, that you had objections.  We had talked
18 prehearing to determine that objection.
19      And based on your objection, I have had my law
20 clerk redact the portions of the report which under
21 your objection, at least, would not be relevant at
22 this time.
23      So I will allow the admission of this redacted
24 version at this time, subject to Mr. Mueller having
25 the opportunity to argue as an interested party with

                                                 Page 20

 1 regard to the other portions of the report.
 2      MR. POPE:  That would be as to the competency
 3 and the conformance?
 4      THE COURT:  As to those portions of the report,
 5 that's right.
 6      MR. POPE:  Your Honor.
 7      THE COURT:  I'll give you this copy at this
 8 time.
 9      MR. POPE:  I would also like to make an
10 argument --
11      THE COURT:  All right.
12      MR. POPE:  -- in regards to that.  Would now be
13 the appropriate time, or --
14      THE COURT:  Sure, I'm happy to hear from you.
15      MR. POPE:  If it please the court, Your Honor,
16 I'm handing a copy of State v. Ricky Lee.  And Your
17 Honor, in this particular case the defendant argued
18 that it was improper during the competency hearing
19 to allow the solicitor to ask concerning right from
20 wrong, the same things I have asked, basically, Your
21 Honor, concerning ability to conform.  And the
22 Supreme Court said the evidence was relevant on the
23 issue of whether the defendant had an understanding
24 of the proceedings against him, and was correctly
25 admitted.

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 1      THE COURT:  All right.  Let me read the case.
 2      (off the record)
 3      (back on the record)
 4      THE COURT:  Mr. Bruck, do you wish to be heard?
 5      MR. BRUCK:  Yes, Your Honor, this case really
 6 is -- we don't think is relevant.  What happened in
 7 State v. Lee was the defense called a witness to
 8 contest competency.  And on cross-examination all of
 9 the evidence about the person's mental state is
10 obviously relevant.
11      The finding of the Department of Mental Health
12 in that case was that a person had no mental illness
13 at any time.  And that was the issue which is being
14 debated in the context of competency.
15      The most important distinction is that here the
16 witness has said that the issue is irrelevant to the
17 question before the Court, which is competency.
18 There it was clear on the cross examination that the
19 question of mental state throughout the period of
20 time was relevant as a way of testing the opinion of
21 the expert.  State v. Lee really doesn't have
22 anything to do with this, Your Honor.
23      THE COURT:  Mr. Pope, do you wish to be heard
24 one last moment at all?
25      MR. POPE:  Yes, sir, Your Honor.  The defense

                                                 Page 22

 1 has made the mental state relevant throughout, and
 2 as it has a bearing on your understanding of
 3 competence.  Dr. Morgan says that competence stands
 4 alone or separate from the defendant's capacity to
 5 conform or --
 6      THE COURT:  Well, that was my understanding of
 7 what his testimony was, was that he doesn't consider
 8 these issues at all in determining competence.
 9      MR. POPE:  But the court ultimately has to make
10 the determination based on the evidence before it.
11      Your Honor, the concern I have again is that
12 the mental issue is out, and is out incorrectly.  Of
13 course, certainly the court can --
14      THE COURT:  What you are saying is that you
15 want it to be introduced as evidence for me to
16 consider, irrespective of whether the doctor
17 considers it?
18      MR. POPE:  Yes.  And I certainly understand
19 that the court has a copy, or presumably has seen a
20 copy of the entire mental report, but I would ask
21 the court to take that into consideration as a
22 totality on the evaluation of competence.
23      THE COURT:  Counsel, I have to agree those
24 issues are relevant for the trial court in making a
25 determination.  Based on that I will allow the

                                                 Page 23

 1 report in full at this time.
 2      MR. POPE:  If it please the court, Your Honor,
 3 maybe I should use your copy.  I would point out for
 4 the record, and I think Dr. Morgan can confirm, we
 5 made a copy of his working copy.  And in essence it
 6 had the checks.  The State did not attempt to put
 7 anything --
 8      THE COURT:  Well, I have got the original.
 9 Let's go ahead and introduce the original at this
10 time.  That will take care of any checks.
11      (Forensic Outpatient Evaluation marked as
12 State's No. 2 for identification)
13      MR. BRUCK:  Your Honor, I believe there were a
14 couple of other points that the court had addressed
15 with the copy that was going to be admitted into
16 evidence, in addition to the conclusions about the
17 criminal responsibility, which is a question of
18 potentially prejudicial matter and we felt should be
19 redacted.
20      THE COURT:  All right, sir.  Well, I'll hear
21 you on that subsequent to the hearing before I make
22 the ruling.
23      MR. BRUCK:  All right.  Thank you.
24 Q    Dr. Morgan, again you tell the court that in
25 your view competency, as your expertise, stands

                                                 Page 24

 1 alone?
 2 A    Yes, sir.
 3 Q    And, of course, you did a separate evaluation
 4 as to criminal responsibility that the court is
 5 aware of and which you found the defendant was
 6 criminally responsible?
 7 A    Yes, sir.
 8 Q    And you did a separate evaluation when you
 9 found that the defendant, regardless of any mental
10 illness, had the capacity to conform, to know right
11 from wrong, is that correct?
12 A    Yes, sir.
13 Q    Doctor, as to mental illness, as I understand,
14 the defendant, while she had a mental illness in the
15 past of adjustment disorder, currently has a mental
16 illness of depression, major depression, is that
17 correct?
18 A    Yes, sir.
19 Q    Based on your evaluation up and through today,
20 does that affect her ability to stand trial or to be
21 competent?
22 A    It does not affect her ability to have a
23 rational and factual understanding of these
24 proceedings or to work with her lawyer in a rational
25 manner.

                                                 Page 25

 1      What we saw today, however, is a marked
 2 increase in her suicidal ideation, which makes her
 3 less self-protective.
 4 Q    By the same token, again, as I understand it,
 5 she may be more suicidal, but she also is more in
 6 touch with reality than she was previously?
 7 A    That's correct.
 8 Q    Okay.  Thank you.  Answer any question that the
 9 defense may have.
10      THE COURT:  Counsel, cross.
11      MR. BRUCK:  Thank you.
12 CROSS EXAMINATION BY MR. BRUCK:
13 Q    Dr. Morgan, her diagnosis now is major
14 depression?
15 A    Yes, sir.
16 Q    That is a major mental illness?
17 A    Yes, it is.
18 Q    Major depression requires, among other things,
19 that the symptoms have existed over a fourteen day
20 period minimum, is that right?
21 A    That's correct.
22 Q    And was that the primary reason why you could
23 not diagnose major depression at the time of the
24 crime?
25 A    No.

                                                 Page 26

 1 Q    The major depression diagnosis that you made in
 2 May?
 3 A    In April.  April and May.
 4 Q    And in May?
 5 A    Yes.
 6 Q    And you make it again today?
 7 A    Yes.
 8 Q    You said that her suicidality is more severe
 9 today?
10 A    Yes.
11 Q    In your report dated May -- well, it's filed, I
12 believe, May 17th, or May 16th, you make the
13 recommendation that she be started on anti -- you
14 strongly recommend she be started on an
15 antidepressant and remain under constant observation
16 via the camera in her cell?
17 A    Yes, that's correct.
18 Q    And when you read -- and then the last sentence
19 of that is "we consider her at great risk for taking
20 her own life."
21 A    That's correct.
22 Q    Okay.  That was back when you saw her in April?
23 A    That's correct.
24 Q    And May?
25 A    That's correct.

                                                 Page 27

 1 Q    And your finding is that she's more suicidal
 2 now than she was then?
 3 A    Yes, sir.
 4 Q    Is it part of your training and experience and
 5 part of the evaluation that you conduct to look for
 6 deception on the part of some of your evaluation?
 7 A    Yes.
 8 Q    Did you look for deception on the part of Susan
 9 Smith?
10 A    Yes.
11 Q    That was something that you were concerned
12 about going into this evaluation, were you not?
13 A    That's something that we are concerned about in
14 every forensic evaluation.
15 Q    Okay.  Did you look for the possibility of
16 exaggeration from her?
17 A    Yes.
18 Q    And what were your conclusions about whether
19 she was exaggerating her distress or her mental
20 illness at the time of this evaluation?
21 A    Of my -- of our evaluation?
22 Q    Yes.
23 A    I think, if anything, she was trying to cover
24 up the amount of distress and the amount of pain and
25 the depth of her depression.  So she wanted -- she

                                                 Page 28

 1 wanted to appear more in control.  She certainly
 2 didn't want to let us know how depressed she was.
 3 That, of course, came out over the period of time.
 4      If we had only taken that first day when you
 5 were present while she was clearly depressed, one
 6 would have the feeling of the depth of that
 7 depression.  But as we saw her over time, and I
 8 think the psychological tests clearly substantiate
 9 the degree of her depression.
10 Q    Now, Mr. Pope has gone into your findings about
11 her condition at the time of the offense.  And I
12 would like to ask you about both of these at the
13 same time.
14      Did you detect in your evaluation any effort by
15 Susan Smith to manipulate your findings so as to
16 cause you to believe that she was more mentally ill
17 at the time of the crime or at the time of the
18 evaluation than she really was?
19 A    No.
20 Q    Was she honest with you?
21 A    As best we could tell from other sources, they
22 match what she told us.  And she told us
23 consistently over time, and we have other
24 documentation separate from what she told us, which
25 matched up what she told us.

                                                 Page 29

 1 Q    Well, you said as best we could tell.  Did you
 2 draw a conclusion about the answer to my question,
 3 whether she was honest and straightforward with you
 4 about her mental condition, both at the time of the
 5 crime and at the time of the evaluation?
 6 A    I think she was.  In fact, that is the -- not
 7 only I think she was, but the team thinks she was.
 8 Q    Did you entertain any doubt about that?
 9 A    I have no doubt about it at all.
10 Q    Was she cooperative with you?
11 A    Very cooperative.
12 Q    Do you feel that the Prozac, the antidepressant
13 medication, has helped her to some extent?
14 A    Yes, she's less depressed today than when we
15 saw her back in late April or early May.  That is,
16 her mood has lifted and she is dealing more with
17 reality of the situation.  And in some sense that
18 has made her more suicidal.  That is not unusual for
19 a person coming out of a serious major depression.
20 Actually the most critical time for people to
21 actually complete suicide is in the phase in which
22 we see her now.
23 Q    Now, you went at this before, but I want to be
24 clear.  She is still in a major depression?
25 A    Yes.

                                                 Page 30

 1 Q    Which is to say, that as you sit her today
 2 looking at her, she has a major mental illness?
 3 A    She has a major mental illness today.
 4 Q    You have given the solicitor his answers about
 5 her competence to stand trial, but -- and I
 6 understand the answers that you gave about the legal
 7 standard of Duskie Standard.  From that said, did
 8 you have concern about her present competency to
 9 stand trial?
10 A    I have concern, in that she is so helpless.
11 She feels so helpless.  She feels that she doesn't
12 care and that she would like to die.  And that if
13 she could figure out a way to die, that she would in
14 fact do that.  I believe that.
15 Q    Did you go into her -- did you go in with her
16 about the content of her thoughts?  You talk about
17 hopelessness.  Well, what is it that she thinks
18 about that is relevant to what your testimony is
19 today?
20 A    Like many individuals, she feels that she has
21 caused her family a great deal of pain; that her
22 life is essentially over, regardless; that she has a
23 fantasy of reuniting with her children.
24 Q    I'm sorry, a fantasy of --
25 A    Of reuniting with her children.  And it is --

                                                 Page 31

 1 that is not an unusual -- that is not unusual for
 2 people who have been involved in such incidents.
 3 She's very guilt ridden, and she feels she deserves
 4 punishment.  And her desire would be not to continue
 5 living in prison.
 6 Q    What about living outside of prison?
 7 A    I asked -- we asked her that specifically.  If
 8 she were not in prison, she said she would take her
 9 life as rapidly as possible.
10 Q    Either today, or in April, or in May did she
11 appear to be rehearsed?
12 A    Rehearsed?
13 Q    Rehearsed.  In the things that she had said to
14 you and the way she presented herself and the way
15 she presented during the interview?
16 A    No, I'm not -- do you mean did someone give her
17 a script?
18 Q    I mean, did it appear that she had prepared
19 herself to look a certain way?
20 A    No.
21 Q    Or that someone had prepared her?
22 A    No, did not.
23 Q    You are trained to detect that if that were to
24 have occurred?
25 A    I'm not saying that I'm infallible in detecting

                                                 Page 32

 1 that, but certainly I look for that.  And the way
 2 one looks for that is the amount of eye contact,
 3 hesitancy before -- in answering, the emotional
 4 display, the movements of -- the body movements.  So
 5 that --
 6      All I'm saying is, taking all of those
 7 observations into account, I do not believe that she
 8 was rehearsed.
 9 Q    You have discussed her lack of
10 self-protectiveness.  You attribute that to her
11 major depression?
12 A    Yes.
13 Q    Is it fair to say that major depression has, to
14 some degree, deprived her or robbed her of the
15 capacity for choice about being self-protected?
16 A    No.
17 Q    To some degree?
18 A    I wouldn't say that it robbed her of a choice.
19 I think when she weighs things, she makes a choice,
20 which at least as a psychiatrist we certainly don't
21 like our patients to do, and they do.
22 Q    I don't mean to suggest that suicidality is not
23 a choice.  My question about it is, is the lack of
24 self-protectiveness is a facet of her major
25 depression?

                                                 Page 33

 1 A    Right now, yes.
 2 Q    Right now?
 3 A    Yes.
 4      MR. BRUCK:  Excuse me, Your Honor.
 5 Q    I would like to ask you just a little bit about --
 6 she, of course, is currently being monitored so far
 7 as you are aware to guard against suicide, is that
 8 correct?
 9 A    Yes.
10 Q    Would it be important for her to be able to
11 speak freely to people, to tell her officers who are
12 guarding her what is going on inside her, at the
13 jail, for example?
14 A    I think to some extent she formed a
15 relationship with the officers in the Women's
16 Center, and that was helpful to some extent.  But
17 she's now in somewhere else, and she doesn't know
18 those people.  So while she may attempt to talk with
19 them, or they with her, it's going to be hard for
20 them to be any real help because she doesn't know
21 them.
22 Q    You mentioned that one of the supports for your
23 diagnosis of major depression is that there is a
24 history of major depression, according to your
25 evaluation?

                                                 Page 34

 1 A    In my opinion, that's correct.
 2 Q    And when do you believe that she had a major
 3 depression in the past?
 4 A    I think she had two episodes.
 5 Q    And they were when?
 6 A    I think she had an episode when she was
 7 thirteen and talked about taking her life then, and
 8 was seen by a school counselor.
 9      And I think the episode in which she was at
10 Spartanburg was, in fact, major depression.
11      I need to clarify that, in that major
12 depression in adolescents is very different from a
13 major depression in an adult.  So that the appetite
14 changes, the sleep changes, the energy changes are
15 not as apparent as they are in adults.
16 Unfortunately sometimes when we are treating
17 adolescents, we miss the severity of their
18 depression.
19 Q    Do you recall what the diagnosis that was given
20 to her at age eighteen when she was hospitalized
21 after that suicide attempt was?
22 A    Yes, Dr. Powell, William Powell, who was a
23 board certified psychiatrist saw her and gave her
24 the diagnosis of adjustment disorder with depressed
25 mood.

                                                 Page 35

 1      In retrospect, I think that that was not
 2 correct.
 3 Q    And it could sometimes be a fine line between
 4 these two diagnoses, can't it?
 5 A    Yes.
 6 Q    All right.  You also mentioned that your
 7 opinion concerning major depression drew in part
 8 from the fact that she has a genetic, that is, a
 9 biological predisposition to depression?  Did I
10 correctly understand that?
11 A    I believe she does, yes.
12 Q    Which is to say that to some degree she has
13 inherited a risk of depression in her genes from her
14 parents?
15 A    More so than others.
16 Q    And you established that how?  How does one go
17 about determining that there is an enhanced risk in
18 someone's bloodline, for instance?
19 A    Well, in fact her father did commit suicide.
20 So that suicide and being depressed and acting on
21 those feelings is not foreign to Ms. Smith.  But
22 then again we see at aged thirteen and again at
23 eighteen, and now occurrence of depression, and
24 generally speaks to a biological aspect, as opposed
25 to somebody who lost a lot of money and was

                                                 Page 36

 1 depressed about that loss.
 2 Q    You don't have the records there, but was there
 3 also other evidence in her family about depression
 4 other than just the father?
 5 A    I believe there was, but I can't recall that,
 6 Mr. Bruck.
 7 Q    I had asked you about the reliability of the
 8 information you got from Ms. Smith about her
 9 condition in October of last year and now.  Was
10 there any indication in the records in the history
11 that you reviewed that she feigned or exaggerated
12 mental illness at age thirteen or at age eighteen?
13 A    No.
14 Q    Was your conclusion to the contrary?
15 A    Well, at age eighteen it appeared that she did
16 what many teenagers do mainly when they find
17 themselves in the hospital have a flight in their
18 health.  And they are all fine and nothing is going
19 to happen, and they are just fine.  And while in
20 particularly in today's world, where
21 hospitalizations are so short, people are discharged
22 prematurely.  And I think that's what happened
23 there.
24 Q    Knowing everything that you know about Susan
25 Smith, and you know a great deal, is it easier to

                                                 Page 37

 1 make a mistake of thinking she's better than she is,
 2 or easier to make a mistake to think that she's
 3 sicker than she really is?
 4 A    It's easier to make a mistake that she's better
 5 than she is, because she doesn't -- she doesn't want
 6 to appear ill.
 7      In the past, her family has supported that she --
 8 she was recommended to be in a depression study, and
 9 that wasn't followed through.
10 Q    At age thirteen?
11 A    At age thirteen.  And then after her
12 hospitalization, rather than being continued on
13 medicines or placed on medicines, she had just
14 several brief meetings with a psychologist.  Again,
15 everything is okay, everything was fine.
16 Q    Was everything okay?
17 A    Everything was not okay.  In my -- in my -- you
18 know, 20/20 hindsight is always great.  But from my
19 reading of the records, things were not okay.
20 Q    Okay.  You talked about the Prozac medication.
21 Could Prozac or some antidepressant medication have
22 made a difference in October of last year in Susan
23 Smith?
24 A    Had Susan Smith had help, I think that would
25 have made a big difference.  But like many people,

                                                 Page 38

 1 it's better they tough it out on your own than to
 2 turn for professional help.  And I think that that
 3 would have made a big difference.
 4 Q    Is it possible we wouldn't be here?
 5 A    It's possible.
 6      MR. BRUCK:  That's all I have, judge.
 7      THE COURT:  Redirect?
 8      MR. POPE:  If it please the court.
 9 REDIRECT EXAMINATION BY MR. POPE:
10 Q    Dr. Morgan, the major depression that we
11 discussed, that came about post-incident,
12 post-arrest, is that correct?
13 A    Yes, sir.
14 Q    Okay.  And so, again, in your findings, there
15 was not a major depression the night that Michael
16 and Alex were killed, is that correct?
17 A    That's correct.
18 Q    Thank you, sir.
19      THE COURT:  Doctor, let me ask you.  I want to
20 make sure I understand.  You are saying that you
21 have had an opportunity today to evaluate her to the
22 extent that, although you see a marked increase in
23 her current state of suicidal tendency or ideation,
24 that you still feel that she is able to fully
25 cooperate with her attorneys, to make those choices

                                                 Page 39

 1 that are best for her, to make at least rational
 2 valid choices with regard to the defense of this
 3 matter?
 4      THE WITNESS:  The troubling part for me would
 5 be if she chose to take the stand.  That is to say,
 6 if she took the stand and described herself and
 7 described her feelings and told people that she was
 8 really guilty and that she deserved to die.  I mean,
 9 I think that would be troubling if I were her
10 lawyer, but I'm not her lawyer.  I'm her doctor.
11      THE COURT:  Well, I'm asking you from a medical --
12 from a doctor's standpoint, is she competent, given
13 this what you described as an increased suicidal
14 tendency?  Is she competent at this time to stand
15 trial, in your opinion, to a reasonable degree of
16 psychiatric certainty?
17      THE WITNESS:  Absent her testifying, she is.
18      THE COURT:  Well, I'm not trying to play word
19 games.  My job is to make a decision as to
20 competence, based on what you and -- are there
21 others -- I don't know, are there others who are
22 going to be testifying as to --
23      MR. POPE:  No, sir.
24      THE COURT:  As to this issue?
25      MR. POPE:  No.

                                                 Page 40

 1      THE COURT:  Based on what you tell me then and
 2 what I have before me.  But what I want to make sure
 3 that I understand, it sounds to me like what you are
 4 saying is that as long as she's got her lawyers
 5 making the decisions for her, that she will be
 6 self-protected because they will be protective, but
 7 she will not be self-protective.  And that,
 8 therefore, she can't participate in the reality in
 9 the defense of this matter.  Is that what you are
10 telling me, in your opinion?
11      THE WITNESS:  In my opinion, yes, sir.  In my
12 opinion, as long as she does not have to testify, I
13 think she's competent.  That is she has a rational
14 factual understanding.  She trusts her lawyers.
15      But should she choose to testify, I think she
16 would then no longer be self-protective.  And this
17 was -- her lawyers were present.  And even though
18 they tried to get her to say that she wanted to live
19 and that she wouldn't say that to the jury, they
20 could not do that in my presence.  They couldn't get
21 her to say well, I'll go up there and say what you
22 want me to say.
23      THE WITNESS:  All right, sir.  Thank you.
24      Questions as a result of my questioning,
25 counsel?

                                                 Page 41

 1      MR. POPE:  Yes, sir, please.
 2 REDIRECT EXAMINATION BY MR. POPE:
 3 Q    Dr. Morgan, I want to make sure that I
 4 understood, and I think you addressed it with the
 5 State, too, as far as what you were discussing with
 6 Dr. Morgan.
 7      You say that she does have the ability to
 8 understand the proceedings?  There is no doubt about
 9 that?
10 A    (shaking head yes)
11 Q    And that she's able to assist in her own
12 defense, and has the ability to consult with her
13 attorney with a reasonable degree of rational
14 understanding, is that correct?
15 A    Yes, sir.
16 Q    Your concern is that if she chose to take the
17 stand, she may say that she's guilty and wants to be
18 punished appropriately, is that correct?
19 A    Yes.
20 Q    Okay.  But, again, that has nothing to do with
21 her ability to be competent?  That's a concern of
22 what she may take -- and certainly we wouldn't want
23 her to just state what the defense attorneys told
24 her to say, is that correct?
25 A    Yes.

                                                 Page 42

 1 Q    So as far as the South Carolina law on
 2 competency, as you have related to me earlier, Susan
 3 Smith is competent, is that correct?
 4 A    Yes.
 5 Q    Thank you, sir.
 6      THE COURT:  Mr. Bruck?
 7      MR. BRUCK:  Couple of things.
 8 REDIRECT EXAMINATION BY MR. BRUCK:
 9 Q    I take it that the focus of your concern is on
10 suicidality?
11 A    The focus of my concern is that she will not be
12 self-protective in this adversarial proceedings
13 because she doesn't care how it turns out.  In fact,
14 she wishes it would turn out so that she would die.
15 Q    That she would die?  She is suicidal now?
16 A    Yes.  And if she could get the State to assist
17 her, that would -- that would be at this point in
18 time.  That was not true back in April.  But at this
19 point in time, that's where she stands.
20 Q    She was suicidal, though, back in April?
21 A    She was suicidal back in April, but that was
22 not her understanding of what she wanted out of this
23 trial.
24      Or she still had -- she didn't have a real
25 appreciation for the reality on what's because she

                                                 Page 43

 1 was so terribly depressed.  As she's gotten better,
 2 she has more of an appreciation of the reality of
 3 the situation.
 4 Q    And your report in the case, of course, that
 5 you also found that she was suicidal on October
 6 25th?
 7 A    Yes.
 8 Q    Is that correct?
 9 A    Yes.
10 Q    And that's -- that's your interpretation of
11 this tragedy?
12 A    Yes.
13 Q    Despite her self -- her lack of
14 self-protectiveness that you have talked about, did
15 she discuss with you today some sense -- I don't
16 know if you would call it self-protective, but some
17 desire to --
18      Well, I should first ask you, do you think she
19 has some insight now about what happened on October
20 25th?
21 A    Yes.
22 Q    She feels now that she needed help?
23 A    Yes.
24      MR. POPE:  Objection, Your Honor.  If we are
25 going to get into trying the case, and certainly I

                                                 Page 44

 1 want the opportunity to put up the witnesses
 2 surrounding that night also, if Mr. Bruck is going
 3 to give a dictation of what the case involves.
 4      I understand the need for the competency.  If
 5 we are going to go through now what Susan Smith
 6 thought that the facts were that night, I would like
 7 the opportunity to put up basically the State's
 8 case, Your Honor.
 9      THE COURT:  Counsel, I believe that you were
10 the one that opened that door.
11      Overruled.  You may continue, counsel.
12 Q    She has insight now that she needed to get
13 help, that she needed to share her distress on
14 October 25th?
15 A    She specifically told me during the recess that
16 the only good thing that could possibly come out of
17 this trial was that perhaps other people would seek
18 help sooner.  Otherwise she sees nothing good coming
19 out of this trial, unless --
20 Q    It helps her commit suicide?
21 A    (shaking head yes)
22 Q    But to focus on self-protectiveness, she does
23 have some motivation to get -- to help get that
24 message across in this courtroom?
25 A    Yes, she does.

                                                 Page 45

 1 Q    And thinks it might be of some use to someone
 2 else?
 3 A    Correct.
 4 Q    To some other children?
 5 A    Correct.  Other people.  Not necessarily -- not
 6 necessarily her.
 7 Q    Right.
 8 A    But to others.
 9 Q    But to others?
10 A    Yes.
11 Q    Okay.  And that is a motivation, I guess you
12 could say, sort of a surrogate self-protectiveness,
13 wouldn't you have say, in a desire to tell the story
14 in an accurate way?
15 A    Well, I think that's a way of putting it.
16      MR. BRUCK:  That's all.  Thank you.
17      THE COURT:  Anything on redirect?
18      MR. POPE:  One question.
19 REDIRECT EXAMINATION BY MR. POPE:
20 Q    You said several times self-protection being
21 your concern?
22 A    Yes.
23 Q    And again we distinguished -- we were talking
24 about major depression now, and we are not the night
25 Michael and Alex were killed, is that correct?

                                                 Page 46

 1 A    Correct.
 2 Q    And you also stated as far as her capacity to
 3 conform, that at that time she was extremely
 4 self-protective in the account she told and the nine
 5 days that she spent protecting herself in essence,
 6 right?
 7 A    Yes.
 8 Q    Okay.  And as far as the depression, my
 9 understanding came on the after the incident had got
10 worse, and now it's getting better again, is that
11 correct?
12 A    That's how I see it, yes.
13 Q    Thank you, sir.
14      THE COURT:  Thank you, sir.
15      MR. BRUCK:  That's all, Your Honor.
16      THE COURT:  Mr. Pope, anything further?
17      MR. POPE:  No, Your Honor.  That would be the
18 State's showing as far as the Blair issue, Your
19 Honor.
20      THE COURT:  Counsel, do you wish to be heard?
21      MR. BRUCK:  No, Your Honor.
22      THE COURT:  Do you have any evidence?
23      MR. BRUCK:  We have no evidence.
24      THE COURT:  Very well then.
25      I'll be happy to hear from you, Mr. Pope.

                                                 Page 47

 1      MR. POPE:  If it please the court, Your Honor,
 2 in this particular case Dr. Morgan has evaluated the
 3 defendant numerous times.  And particularly as to
 4 the issue of competency, of course the court has the
 5 copy of his report.  I also note that today he's
 6 evaluated her again m, that she is still competent
 7 in his expert opinion.
 8      Your Honor, I referred to the requirements of
 9 South Carolina -- State v. Law, that the court is
10 aware of.
11      THE COURT:  I'm sorry, state versus --
12      MR. POPE:  State v. Law.
13      THE COURT:  Right.
14      MR. POPE:  Which is that she have the
15 sufficient present ability to consult with the
16 lawyer a reasonable degree of understanding, and a
17 rational as well as factual understanding of the
18 proceedings.
19      Dr. Morgan has indicated the defendant has the
20 ability to understand and the ability to assist her
21 counsel.
22      That's the purpose of this hearing, Your Honor,
23 and I would submit that she is competent.
24      THE COURT:  Mr. Pope, or Ms. Clark?
25      MR. BRUCK:  Mr. Bruck or Mr. Pope?

                                                 Page 48

 1      THE COURT:  I'm sorry, Mr. Bruck or Ms. Clark?
 2      MR. BRUCK:  Thank you.  I think it's a close
 3 call.  Yes, Dr. Morgan went through the legal
 4 formula.  And if Susan Smith were suicidal simply
 5 because she is in a horrible situation and her
 6 children are dead and she's charged with this crime
 7 and she has confessed to, everybody hates her and,
 8 you know, the wall has collapsed on her, that would
 9 be that.
10      But the testimony is -- I mean, people have the
11 right to feel however they want to feel.
12      But the testimony is that she has a major
13 mental illness.  And that is the core of her
14 suicidality.  It could be that she would be suicidal
15 when she overcame or does overcome the major
16 depression, but that's not the evidence.  So it's
17 not the sort of situation that we sometimes have
18 about people who just want to be executed, or want
19 to be -- you know, don't -- reject their lawyers and
20 say, you know, I'll handle this myself.  That's not
21 the type of situation that we have at all.  We have
22 a mentally ill defendant before the court.
23      Obviously the ability to testify, or in this
24 proceeding she has the ability, the statutory right
25 to make a jury argument, and in the guilt phase of a

                                                 Page 49

 1 trial and as to the penalty phase.  That can only be
 2 waived personally by her on the record, as you well
 3 know.
 4      And the court has to satisfy itself that if she
 5 were to arise and address the jury, it would be
 6 Susan Smith talking and not any of us.  It's not to
 7 say that the fact that somebody is mentally ill ipso
 8 facto means that they are competent, but you heard
 9 the testimony.
10      I don't think this is clear cut.  I'm not here
11 to say obviously she is incompetent.  I think this
12 is more than I really had expected.  And I knew she
13 was very suicidal.  The gravity of Dr. Morgan's
14 findings today.  You saw the meeting they had.  It
15 went longer than we thought it would, the conference
16 the doctor had afterwards with Susan went on longer
17 than we thought it would.  It's a concern.  I
18 don't -- this is not something where, you know,
19 defense attorneys are supposed to do what he or she
20 can on this issue, but in the end it's not waivable.
21 It's not up to us.  And we submit this is up to Your
22 Honor.
23      THE COURT:  Thank you, sir.  Counsel, I'm going
24 to review the report, review the case law before I
25 make a decision in view of what the doctor had to

                                                 Page 50

 1 say.  Somewhat more than what is contained, now that
 2 I have reviewed this report.
 3      I do think that at this time, without question,
 4 the public plays a positive role with regard to the
 5 issue of mental condition, incompetence to stand
 6 trial, which therefore on Mr. Bender and Mr.
 7 Mueller's argument brings into focus what I consider
 8 to be the balancing required for the dissemination
 9 of the report.
10      Based upon my reading of it -- and I'll hear
11 from you.  I see Mr. Bender is in the back.  I don't
12 think Mr. Mueller is here.  If you want to argue
13 with regard to the public access to the report at
14 this time, I will hear from you.  Do you wish to be
15 heard?
16      MR. BRUCK:  Well, the objection is two very
17 small points, which are potentially prejudicial and
18 irrelevant as stated.
19      THE COURT:  What I will do then is give Mr.
20 Bender and Mr. Mueller an opportunity to be heard.
21 I'm going to at this time rescind my prior order
22 with regard to the report, saving except for those
23 two portions, and then I'll allow them to be heard
24 with regard to those two portions, as soon as we
25 have an opportunity to do that.

                                                 Page 51

 1      So at this time I rescind my order regarding
 2 the privacy accorded under South Carolina law to Ms.
 3 Smith as to that mental health report.  I do think
 4 since the report has now been considered this
 5 afternoon and testimony has been taken with regard
 6 to it, that it now in this type of proceeding, now
 7 that the court has for the first time reviewed and
 8 taken any action with regard to that report, under
 9 our United States Supreme Court decisions, that the
10 public does play a positive role with regard to
11 that, that it is now a requirement that I balance
12 the interests as required under -- I believe it's
13 Enterprise -- the Enterprise decision and our South
14 Carolina decisions.  And based upon that I do
15 conclude the report itself is public.  I'll give you
16 an opportunity and will temporarily redact those two
17 small portions until I have heard from counsel as to
18 those.
19      MR. POPE:  If it please the court, can the
20 State be put on notice as to what's being redacted?
21 We don't have any indication.
22      THE COURT:  Yes.  Counsel --
23      MR. POPE:  We can do it at the break or
24 whatever is appropriate time.
25      (END OF REQUESTED TRANSCRIPT OF RECORD)

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