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The Judge Rotenberg Center on Trial, Part 6

by Shain Neumeier

Witness testimony in the medical malpractice trial over the use of electric shock and restraint on Andre McCollins at the Judge Rotenberg Center concluded on Friday, 20 April, with the examinations of JRC founder Dr. Matthew Israel and defense expert witness Dr. Lloyd Price.  Before the jury entered and the trial resumed, the parties approached the judge to make motions for approximately ten minutes out of the earshot of observers and cameras.  The content and outcome of these motions was not clear from what followed.

Although Dr. Israel had briefly been on the stand the previous afternoon, the defense decided to break up his testimony in order to call Dr. Price to testify first.  Dr. Price identified himself as a board-certified forensic and child and adolescent psychiatrist.  He stated that he had worked with Autistic children and others with developmental disabilities, both in his private practice and at McLean Hospital, a psychiatric facility in Belmont, Massachusetts.  He also teaches at Harvard Medical School.  As a forensic psychiatrist, he had testified in many other trials, often as an expert witness for insurance companies in civil lawsuits.  In preparing for this case, he had reviewed Andre McCollins’ records from hospitals and residential treatment programs, including JRC, as well as the entire video footage from the incident and the opinions of plaintiff’s experts Dr. Whaley and Dr. Duckworth, the latter who never ended up testifying.

The first thing Dr. Price did in testifying about the case itself was to try to establish that Andre was “not truly Autistic.”  He stated that Autistic children do not develop communicative speech, nor do they interact with other people unless they have to.  Based on his reading of the records, Andre met neither of these criteria, and thus he had concluded that the programs and medical facilities that had diagnosed and referred to Andre as Autistic were wrong in doing so.  Later in his testimony, he would go on to diagnose Andre as having schizoaffective disorder, which he characterized as a combination of a mood disorder and schizophrenia, based on the hallucinations and hypomanic states that Andre experienced.  Andre’s diagnosis of Psychosis, Not Otherwise Specified (NOS) only supported this diagnosis further, in his estimation.

He moved on to discuss psychosis and catatonia, speaking generally about the conditions.  Specifically, he stated that although a psychotic individual is unable to correctly perceive what’s happening around them and may be delusional or have hallucinations, psychosis itself is cyclical, and an individual may at times be symptom free.  A catatonic state, according to the witness, is not necessarily indicative of psychosis, and can have other causes.

As far as Andre’s catatonia was concerned, Children’s Hospital Boston had diagnosed him with mild catatonia.  This was inaccurate, according to Dr. Price, as, in his opinion, Andre “did not meet the criteria for a catatonic state.”  He attributed Andre’s dystonia – or muscular rigidity – to the administrations of Haldol that Andre had been given during his hospital stay.  Furthermore, he relied on a doctor’s comments in testifying that part of Andre’s unresponsiveness and lack of movement had been voluntary, rather than a symptom of any condition.

Defense attorney David O’Connor returned to the subject of psychiatric medications and side effects next.  According to JRC records, it had been recommended sometime on the day of the incident that Andre be put back on Risperdal.  Despite the JRC’s own recommendation of this, the attorney went on to elicit testimony from Dr. Price that, though it was not necessarily more likely than not that Andre might develop permanent side effects such as tardive dyskinesia from the use of Risperdal, it was possible.  Furthermore, the witness said that, based on the records, the medication had not eliminated all of Andre’s major behavioral problems.  Also, even if JRC had put Andre back on Risperdal on or shortly before the date of the incident, the doctor said that it would have taken anywhere from week to six months, and likely a few weeks, to take effect.

The discussion turned to Andre’s state and behavior on 25 October 2002.  According to Dr. Price, that morning, Andre had been physically assaultive – “a nicer way of saying violent.”  He went on to repeatedly characterize Andre as being “oppositional and angry” in his behavior that day, between his unresponsiveness to questions, yelling and screaming, struggling while being restrained, and verbalizations – such as “no,” “help” and “ow” – that “didn’t make sense.”  Thus, he concluded that restraining Andre, who was “not in control,” had been “resisting commands” and had a history of aggression, was an acceptable emergency response.

As far Andre’s reactions to this and the shocks he received that day, he, to Dr. Price’s eye, did not appear to be frightened or scared.  His reactions, the doctor said, had been disproportionate and puzzling, as the “normal reaction to the GED is not to scream.”  After all, Andre had received shocks before, and had been, in Dr. Price’s estimation, “used to them.”  The witness further pointed out that Andre’s screams were sometimes not a reaction to his being shocked, but instead to sounds around him, such as that of cell phones ringing or someone testing or using a GED elsewhere.  As for Andre’s full-body tense-ups, the witness’s opinion was that they could’ve been manifestations of a number of things, including “anger, physical reaction [or] fear.”

Based on his review of the Children’s Hospital Boston records, Dr. Price stated that, as early as the third day that Andre had been in the hospital, he was near or at baseline.  These records indicate that, on the fifth day of hospitalization, Andre was visited by, and in fact was interacting with, staff from JRC.  Dr. Price went on to say that, in his expert opinion, Andre had been at baseline upon leaving the hospital.  In discussing how Andre had been immobile shortly afterwards, requiring further hospitalization and medication, he said that this was “difficult to relate” to what had happened to Andre at JRC.  Furthermore, the anxiety that Andre had been experiencing “got better,” while the psychotic symptoms he had been exhibiting that had led to his hospitalization had been “stereotypical,” or usual enough for Andre.  More recent records suggested to the doctor that Andre had made significant improvements at subsequent residential programs, in that he had become communicative, had had far fewer aggressive episodes, and might possibly be placed in a less restrictive setting in the near future.  Thus, he concluded that Andre had experienced “no permanent damage that was causally related to his treatment at JRC.”

The attorney attempted to counter Dr. Whaley’s testimony that a psychotic person could not learn from the use of aversives with that of Dr. Price, who stated that he disagreed with Dr. Whaley on this point.  “You can train a dog,” the witness said, before adding, “Not saying that patients are like dogs.”  In fact, he said that, based on a review of literature on the subject, there was nothing in support of Whaley’s opinion, and that there are many behavioral programs used on intellectually disabled, Autistic and psychotic patients.

The direct examination closed with a discussion of the treatment Andre had received immediately after the incident.  Dr. Price stated that it had not been medically necessary nor indicated for Andre to have been transferred to a psychiatric hospital, and that JRC had been able to handle the situation without doing so.  Specifically, they had given him a rectal administration of Valium on Friday for the purpose of sedating him and reducing his anxiety.  Both the attorney and the witness, however, classified the treatment he received at Children’s Hospital Boston as “chemical restraint,” as he was given Haldol and a number of other medications to make him more manageable there.

In beginning the cross-examination, plaintiff’s attorney Benjamin Novotny asked Dr. Price about his work with Autistic children or those with other pervasive developmental disorders, and the doctor answered that, currently, none of his patients are Autistic nor are they children. Mr. Novotny also established that, in the last year, Dr. Price worked only 20 hours at McLean, and that the last time he had worked in the children’s unit there was in 1987.  He further elicited that Dr. Price had spent about 10 hours reviewing all the records for this case, and that his total preparation time had been approximately 20-25 hours.

Mr. Novotny proceeded to go through Andre’s medical records, finding mentions of Andre’s diagnosis of autism or, more generally, a pervasive developmental disorder.  These diagnoses, the attorney pointed out, were made without there being a lawsuit in progress, and had not been made by people hired, as Dr. Price was, at $400 an hour to do so.  The witness held his ground, insisting that these various other doctors had came to the wrong conclusion, even when he was asked whether he could really expect to accurately diagnose Andre years later, without ever having met or talked with him or his mother.  This walkthrough of the records also revealed that, in diagnosing Andre with catatonia, the doctors at Children’s Hospital Boston had listed “PTSD – shocks” as the cause.

Dr. Price confirmed that he knew from the records that Andre was scared of new situations and that he believed that people were out to harm him.  Still, he spoke to Andre’s “oppositional behaviors,” namely seeming reluctant to move along and sit in his chair after coming into class.  He conceded, though, that Andre had not been oppositional when staff had removed the restraint helmet at the beginning of the day, and when Andre had been sitting at his desk, and also said that he was not sure if Andre was being oppositional while staff was removing the restraints that he had entered the room in.  He also admitted, when asked, that some of Andre’s screaming that hadn’t been in response to being shocked had been instead in response to staff removing his pants and placing him in a diaper.  However, he continued to characterize Andre’s reactions to how he was treated that day, including his tensing up and crying, as “angry and oppositional.”  Even when Mr. Novotny brought up how the use of aversives that day had been well above anything Andre had ever experienced in his life, the witness insisted that Andre had been “predominantly angry and oppositional.”  When confronted with a quote from Dr. Heyn’s testimony, that it was “impossible to tell if the tense-ups were caused by anger or fear,” he responded that he would have to see the quote in context.

When Mr. Novotny asked him if electric shock was a cure for psychosis, in any amount, Dr. Price admitted that it wasn’t.  However, he asserted that it was ethical to strap someone down and shock them all day, as Mr. Novotny put it, if part of a well-thought out treatment plan.  Slightly later in the cross-examination, though, Mr. Novotny asked him if, in fact, the GED had been working in addressing Andre’s behavioral problems, to which he answered no. Mr. Novotny pressed him on this, asking if the thirtieth, twenty-ninth, twenty-eighth, twenty-fifth or twentieth shock had been successful, which finally caused him to say that “[n]one of the shocks that day appeared to be changing his behaviors,” either as individual interventions or overall.

The cross-examination moved onto the care or lack thereof that Andre received over the last weekend he was at JRC, with Mr. Novotny presenting Dr. Price through questioning with the facts that Andre’s condition had continued to deteriorate, that he had become unresponsive and dehydrated, and that he had stopped eating – all things that the witness agreed were true, based on the record.  Dr. Price further confirmed that the only reason that Andre had been transferred to a hospital for treatment was because Andre’s mother had insisted on it herself, and had in fact come to the facility to take her son to the hospital.  In JRC’s defense, he said that Andre had been given treatment there, in the form of sedatives, but that they could not give him hydration.  Furthermore, he said, it had not become necessary to take Andre to the hospital until he had become dehydrated, which he was only “to some degree” when he arrived at Children’s Hospital Boston.

As for Andre’s psychological condition at the hospital, Dr. Price attributed the fear he was showing to his usual discomfort with new environments.  The witness admitted that Andre had been unresponsive, but not catatonic, and went on to say that acute stress response has no real medical meaning as a diagnosis.  Mr. Novotny concluded the cross-examination by asking Dr. Price why, if he had been so convinced that the doctors at Children’s Hospital Boston and other care facilities had gotten Andre’s diagnoses all wrong, he hadn’t told anyone or otherwise attempted to report it, as it raised serious concerns about the competence of the doctors who diagnosed Andre.  Dr. Price responded by saying essentially that it had happened too long ago, and there would be no point.

On redirect, Mr. O’Connor, through questioning, pointed out that some of the mentions of Andre’s being Autistic were simply notes by nurses, not diagnoses made at the time by doctors.  These mentions, according to Dr. Price, were based on the patient history provided to the hospital by Andre’s mother upon his arrival to the hospital, and there had been no clinical assessment of the diagnoses she had reported. Mr. O’Connor attempted to contrast this with how Dr. Price had reviewed all the available records before reaching a conclusion about how Andre should have been diagnosed.

In countering what Mr. O’Connor characterized as Mr. Novotny’s “pop quiz” of Dr. Price about the incident itself, the witness said that Andre had been calm for periods of time immediately following some of the shocks.  Furthermore, he justified the use of shocks in response to Andre’s being oppositional, stating that “[b]ehavior that starts as oppositional can escalate to aggressive types of behavior.”  However, he admitted that there were “slices of time” shown on the tape where what happened did not perfectly fit in with his overall opinion.  Finally, in a brief re-cross examination, Mr. Novotny elicited testimony from Dr. Price that JRC staff had kept Andre in a “very sedated condition” over the weekend following the incident for the purposes of controlling him, and had only once, on the afternoon of the incident itself, had a doctor evaluate his condition.

After the end of Dr. Price’s testimony, Dr. Israel returned to stand, beginning this part of his testimony by explaining the difference between psychiatry and behavioral psychology.  Specifically, while psychiatry involved “great use of psychotropic medication,” behavioral psychology relied on “environmental changes” to address problem behaviors.  This could, he said, include “overt” behaviors, such as hitting and throwing things, and “covert” behaviors, such as thinking, imagining and talking.

He went on to discuss JRC and its population, beginning by mentioning the program’s “near zero rejection policy,” which he said meant that it dealt with the hardest cases – students who couldn’t be served in any other setting.  He divided JRC’s student body into those he considered “lower-functioning,” including Autistic students and those with other pervasive developmental disorders, and those he considered “higher-functioning,” namely students whose primary diagnoses were emotional and behavioral disorders.  Some of them, as far as he knew, were diagnosed with psychotic disorders.  However, he said that all of the students at JRC had behavioral disorders.  JRC’s mission, as he put it, was “to help those children and young adults to change their behaviors and to live as dignified and productive a life as possible.”

As Executive Director in 2002, Matthew Israel had been responsible for all of JRC’s departments and operations.  He, however, did not directly treat any patients in this role, and, as he said later on direct examination, he had not been involved in the development of Andre’s treatment program.  Instead, he described himself as having been involved in whatever work was of highest priority at JRC at any given time… which had at one point included dealing with Andre on 25 October 2002.

In discussing the behaviors for which Andre had been shocked, Dr. Israel said that full-body tense-ups were listed in JRC literature that was provided to parents of potential students as a possible target behavior that the program would address through the use of aversives.  He described what a tense-up would involve and look like to the jury, but said that he could not remember having observed specific instances of Andre or other JRC students tensing up.  As to why a tense-up was a target behavior in the first place, he said that it was considered dangerous, in that it could cause an individual’s blood pressure to rise.

On the subject of the incident itself, Dr. Israel said that much of his knowledge was based on having received information from other people on the day it happened, and from having seen the entire video after the fact.  His own involvement in what happened had begun when Dr. Robert Von Heyn and JRC Director of Programming Sue Parker came to his office to tell him about the number of shocks that Andre had received, and about how Andre wasn’t responding to them, at approximately 3:30 P.M. that day.  Upon arriving in the room in which Andre was being restrained, he talked with members of staff to find out more and see if he could help.  “He wasn’t the usual Andre,” Israel said in testimony.  “It just seemed like he was in such a different state.”  He elaborated by saying that the staff had been unable to make behavioral contracts with him in order to change how he was acting, and that, as a result, his behavioral program needed to be changed to that meant for someone with a much lower functioning level.

Dr. Israel had been present for the JRC doctor’s medical examination of Andre later that day, and reported that Andre had not been dehydrated then, and that there had not been anything to suggest, as far as he knew, that Andre needed to be taken to the hospital at that time.  In fact, the doctor, in examining Andre, had said encouraging things to and about Andre and his condition.  Over the weekend, JRC’s round-the-clock nursing staff would have been in charge of Andre’s care, and Dr. Israel himself had not been involved.  He had also not made the decision to transfer Andre to the hospital on Monday, as that had been a treatment decision not requiring the Executive Director’s approval, but he said that he would not have opposed the idea if it had been presented to him beforehand.

He discussed, both with Mr. O’Connor and as part of a brief questioning by Dr. James Riley’s attorney Edward Hinchey, his disagreement with plaintiff’s expert witness Dr. Whaley’s opinion that someone with Andre’s diagnoses could not learn from the use of aversives.  In fact, most of the literature, including recent and in his opinion credible literature, on the use of aversives, he said, involved patients with psychotic disorders or intellectual disabilities.  He testified that a higher level of intellectual functioning was unnecessary for behavioral modification to work, and in fact behavioral therapy is the treatment of choice for Autistic children at this point.

After Dr. Israel’s direct testimony, the judge heard a motion outside of the presence of the jury on the issue of how he had described himself as “retired” from his position of Executive Director of JRC while on the stand.  Mr. Novotny argued that this was misleading, given the fact that he had actually been forced to resign after pleading guilty to destruction of evidence pursuant to a state investigation last year.  He went on to say that the picture painted by the defense about the circumstances of Dr. Israel’s leaving JRC “couldn’t be further from the truth.”  Mr. O’Connor responded by saying that retiring was legally the same as resigning, and threatened that if Mr. Novotny brought up the forced resignation, he would bring Cheryl McCollins back up to the stand to testify about the previous lawsuits she had filed against other care providers.  The judge reminded Mr. Novotny that he was precluded from discussing the circumstances of Dr. Israel’s resignation based on a previous motion, and said that, in any case, she didn’t see the relevance of it to this case.

A second issue that came up out of the presence of the jury was on the issue of the JRC’s last witnesses.  The last expert that JRC had expected to testify had to return to Canada that afternoon, and instead JRC wanted a direct care worker who had been there on the day of the incident, Kasey McAuley, to testify instead.  Mr. Novotny objected, in that part of the testimony that Ms. McAuley would provide would be about a prior incident where Andre was aggressive, and would shift the focus away from what happened to him in the incident at issue and onto Andre’s aggression in general.  Mr. O’Connor defended the choice of witness, saying that he wanted her to testify to show that there was reason for concern on 25 October 2002, and adding that “JRC has been villainized here.”  The judge postponed the motion for the time being.

After these motions, Dr. Israel returned to the stand for cross examination.  In response to what was said very early on in direct examination the previous day about Dr. Israel’s training, Mr. Novotny asked him if it was true that his mentor, B.F. Skinner, had never actually used aversives on humans, let alone children, but instead had only used them on pigeons, rats and other animals.  Dr. Israel confirmed that this was the case.  He also admitted that his own two attempts at forming utopian communities based on those proposed in Skinner’s book Walden Two had failed.  Mr. Novotny also asked Dr. Israel about the fact that 75% of the research that supported the use of aversives in treatment was over twenty years old, to which Dr. Israel responded that “[p]olitically, it has become difficult to use skin shocks.”  The attorney also brought up how eight out of ten pro-aversives studies in more recent years were written or co-written by Dr. Ivar Lovaas, a psychologist who later repudiated the use of aversives.  Dr. Israel dismissed this, characterizing Dr. Lovaas and other mental health professionals’ change in opinion as caving to political correctness.

In response to clarifying questions, he further explained his role as Executive Director at JRC, which involved overseeing all things related to the facility.  This meant, according to him, that he had the “ultimate and final responsibility,” including legal responsibility, for staff actions.

Mr. Novotny asked Dr. Israel about the treatment provided at JRC, eliciting testimony to the effect that traditional counseling is discouraged and is not provided to students regularly, as it is a “potential reward” for target behaviors.  Dr. Israel said he didn’t recall that students had to earn, or “pay for,” counseling sessions through program points earned good behavior, and said that he was “not sure if that’s currently a policy.”  He confirmed, though, that a JRC student seeking a therapy session must write a business letter requesting it in addition to paying earned points, saying that this helps teach students language, letter-writing and business practices.  Finally, he testified that it was true that students did not receive counseling immediately after exhibiting problem behavior so as not to reward them for it.  As for the shocks, he confirmed that the first shock device that JRC had used, the Self-Injurious Behavior Inhibition System (SIBIS), had lost its effectiveness, but that JRC had had to design its own device after the makers of SIBIS refused to develop a stronger one.

Returning to the reasons for which Andre was shocked, Mr. Novotny attempted to get Dr. Israel to admit that Andre had not been shocked for aggressive behaviors, nor for antecedents thereto.  When Dr. Israel denied saying this, Mr. Novotny showed him his testimony from his deposition before the trial, which had recorded him saying that tensing up was not a target behavior because it was aggressive so much as because it could lead to a rise in blood pressure.  Dr. Israel continued to deny that aggression was not an issue where full-body tense-ups were concerned, saying that it could be and was just less of one than a rise in blood pressure was.

Referring to a part of Dr. Israel’s direct testimony in which he had stated that Andre’s treatment program had needed to be changed in the light of the events of 25 October 2002 to reflect Andre’s unusual state of mind, Mr. Novotny asked him whether he was referring to the treatment plan that Dr. Riley designed, and that Dr. Von Heyn helped implement.  Dr. Israel confirmed that he was indeed referring to the same plan.

Mr. Novotny also pointed out a part of Dr. Israel’s earlier statements, where he had said that, in his capacity of Executive Director, he had been involved with whatever was of highest priority at JRC, asking him what had been a bigger priority early on the day of the incident than Andre, who had been restrained and shocked many more times than ever before.  He further confronted Dr. Israel with the fact that Dr. Riley had asked him to evaluate Andre earlier in the day.  Dr. Israel gave no direct response to this.  When it came to his connection with Andre more generally, he testified that Andre was “doing so well” that Dr. Israel didn’t feel the need to get too involved in learning about him or his situation.  Mr. Novotny followed up on this, saying that Dr. Israel didn’t know the first thing about Andre, to which the witness answered that one “couldn’t expect [him] to know” about what diagnoses he had or what aversives he was receiving.  When Mr. Novotny asked him rhetorically how he could have overseen the program and not known about the students in it, Mr. O’Connor objected, and the judge prevented the witness from answering.  Finally, in response to Mr. Novotny’s questioning him about it, Dr. Israel admitted that he didn’t know what the JRC policy on the use of restraints and helmet was at the time of the incident, nor did he know the details of obtaining authorization for high numbers of electric shocks.

According to Dr. Israel, before Dr. Von Heyn came in on the afternoon of the incident to tell him what was happening, he had not known anything about the situation.  In general, he said, he wouldn’t need or necessarily want to know if a student received a large amount of shocks.  However, when Dr. Von Heyn told him that Andre didn’t seem to be responding to the shocks, he went down to check.  He observed that Andre “was in some kind of state” that was different from normal and was not something that had or was going to last only a couple of minutes or hours, though he refused to call it psychosis and insisted that the shocks were still having an effect in treating it.  He testified that no one had evaluated Andre early in the day, and, after the evaluation by the doctor that afternoon, he didn’t recall what he did for Andre, if anything, for the rest of the night.  He in fact didn’t see Andre over the weekend at all, and didn’t check in on him on Monday, saying that there had been no reason to believe that it was necessary to do so.

Mr. Novotny asked Dr. Israel about Mrs. McCollins’ withdrawal of consent for the use of the GED on Andre’s arms.  What was promised to her, the attorney said, was very different from what she got.  In response to a question about the staff’s decision to put the electrodes back on Andre’s arms, Dr. Israel said, “I would rather they had not.”  He admitted that JRC had not had her consent, and thus had had no authorization, to do so.

The attorney then asked Dr. Israel if it was true that warehousing, which he defined as putting someone on drugs, putting them in restraints, and leaving them, was against JRC policy, to which the doctor answered yes.  When asked if it was true that Andre had been put on drugs at JRC after the incident, he dodged the question, saying that warehousing is long-term.  Mr. Novotny countered, saying that the only reason Andre hadn’t been warehoused over the long-term was because of his mother’s intervention.  He then asked whether Andre had been restrained that weekend, to which Dr. Israel answered that he didn’t know whether, or to what extent, he had been.  He went on to answer the question of whether Andre had received good care by saying that he thought JRC staff did what was called for under Andre’s treatment program.  Mr. Novotny asked him how many people he had shown the video tape in which Andre received this care to between the date of the incident and 2011, prompting an objection by Mr. O’Connor that was sustained by the judge.

On redirect, Dr. Israel reiterated that he had not been involved in developing Andre’s treatment plan. However, he nevertheless spoke about the psychiatric contraindication form for the use of aversives that had come up earlier in the case.  One would expect, Dr. Israel testified, that a psychiatrist filling out the form would make a note explaining why a given procedure was contraindicated, and that this information would have reached JRC’s Programming Department.  Furthermore, he said that the fact that combination aversive procedures were listed as an option on Andre’s daily recording sheet meant that they could not be shown to be contraindicated through the student’s records.  Between these two facts, he concluded that the psychiatrist’s failure to properly initial the contraindication sheet did not mean that these procedures were not authorized at the time of the incident.

A brief recross examination established that not only were combination interventions contraindicated according to the sheet, but the food restrictions placed on Andre through the Contingent Food Program (which did not involve withholding of food, but using food as a reward, insisted Dr. Israel in response to Mr. Novotny’s characterization of it) were as well, for lack of initials proving otherwise.  Mr. O’Connor was prepared to ask a couple of more questions of his witness, but abandoned this attempt when the judge made it clear that she wanted to move things along.

Once Mr. Israel stepped down, the jury was dismissed and the court held another motion on the issue of whether Kasey McAuley, the direct care worker that the defense wanted to call as a witness, could testify.  Mr. Novotny continued to object, on the grounds that he had not had the chance to depose her and thus had no idea what her testimony would actually consist of.  However, he feared that it would be focused on Andre’s history of aggression, which could “only be used to garner sympathy for the defense.”  He asked the judge not to preclude the witness from testifying, but rather to limit the scope of her testimony.  The judge allowed the witness, and told Mr. Novotny that he could object to parts of her questioning or testimony if he so chose.

The JRC also mentioned the possibility of bringing in another witness, JRC Director of Programming Sue Parker.  Mr. Novotny objected, on the grounds that she would be called to talk about a document that she didn’t author or fill out – ostensibly, the psychiatric contraindication form.  Again, the judge told him he could object to the witness’s testimony while she was on the stand if necessary.  However, the judge also seemed eager to end the case, and forbade JRC from calling any more witnesses after this.  In the end, Ms. Parker did not testify, and Ms. McAuley was the last witness in the case.

Ms. McAuley testified that she had worked at JRC for three years prior to the incident, and still works there.  In 2002, she worked in quality control, after working as a teacher shortly before that.  She did not generally work with Andre, she said, and had only come into the classroom on the day of the incident to check on things when his teacher had become uncomfortable with the prospect of taking off Andre’s restraints.  She had not heard about what had happened on the bus that morning when she arrived, and had in fact only learned about it after the first time that Andre was shocked in the classroom for not taking off his coat.  According to her, Andre had been “highly agitated, struggling with us, refusing to come out of restraints,” engaging in tense-ups, and yelling and screaming.  She characterized him as having been “aggressive and dangerous.”

When asked to describe Andre’s tense-ups, she said that, in such a state, he was “kind of like the Incredible Hulk.”  She elaborated by saying that, when he tensed up, he would attack people, hitting, kicking and punching them.  She talked further about Andre’s aggressive behavior, and in particular about one particular prior incident in which she had been involved.  Namely, the first time that Andre had ever been shocked, he had charged at the staff around him, herself included, and had attempted to bite her face.  He ended up biting her hand, breaking three of her bones in doing so.

Ms. McAuley testified that, on the day of the incident, she had been involved in restraining Andre, and had administered many of the electric shocks early in the day.  She said that she had done so in accordance with his treatment plan, after multiple people had confirmed that he tensed up each time.  After every GED application, she verbally pointed out the behavior that had prompted it.  “He understood what he was doing was wrong,” she said.  Furthermore, she said, he calmed down, his body no longer tense, after the shocks.  However, she also testified that staff that day had been unsuccessful in releasing him from restraints that day because of his struggling.  When asked why Andre had been restrained in the first place, she answered that it was for the purposes of safety and checking for full-body tense-ups.  “It was my job,” she added.

On cross-examination, Mr. Novotny asked Ms. McAuley why Andre had been shocked that first time, before he had attacked her in the earlier incident.  She answered that he had attempted to “defeat the electrodes,” tucking his shirt in and pulling his socks up so they weren’t touching his skin.  The first time that staff attempted to shock him, the GED didn’t go off.  They shocked him twice more – which Ms. McAuley said counted as the same shock – in an effort to make the GED actually have its effect on him.  In answer to questions as to whether it was true that Andre didn’t want to be shocked, and didn’t like to be shocked, she said, “I don’t know.”

The end of the case, including closing arguments and the judge’s instructions to the jury, will be covered in the next and final blog post.

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