11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: GRADY NELSON, vs. STATE OF FLORIDA,IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO. F05-00846Plaintiff, REDACTED TESTIMONY BRAD FISHER, PhDDefendant. ------------------------------------/ Gerstein Justice Building Miami, Florida November 16, 2010The above-entitled case came on for hearing before the Honorable JACQUELINE HOGAN-SCOLA, as Judge of the Circuit Court, in court pursuant to notice.---------------------OFFICE OF THE STATE ATTORNEY KATHERINE FERNANDEZ-RUNDLE BY: ABBE RIFKIN, ASA -AND- HILLAH MENDEZ, ASA -AND- JOEL ROSENBLATT, ASA FOR THE DEFENDANT: TERENCE LENAMON, ESQUIRE -AND-DAVID MARKUS, ESQUIRE21 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is? ATUESDAY, NOVEMBER 16, 2010, 11:11 A.M. (The following proceedings are a redacted version of the testimony of Brad Fisher, PhD, omitting objections, rulings and sidebars at the request of the ordering party). BRAD FISHER PhD, called as a witness on behalf of the Defense having been duly sworn by the Cler , was examined and testified as follows: THE WITNESS: I do. THE COURT: Before you begin, address all yourvoice up, and state and spell your full name. THE WITNESS: My name is Brad Fisher, F-I-S-H-E-R. DIRECT EXAMINATION BY MS. MAURER: Q A Q Good morning, Dr. Fisher, how are you? Good morning. Can you tell us a little bit about what your jobI am a clinical correctional or clinicalforensic psychologist. It means that I have training as a clinical psychologist, my specialty within that is wor ing in corrections or forensic applications, the applications having to do with the courts. Q Where do you live?comments to the ladies and gentlemen of the jury,eep your31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25A QIn Chapel Hill, North Carolina. Part of why we had to postpone our regularlyscheduled activities for you to testify. Can you tell me what your actual title is? A I am a clinical correctional or clinical forensicpsychologist. This is through the American Psychological Association. Q A Do you have a specialty within that? Yes. Within -- I am a clinical psychologist.Within that, I do forensic wor , wor connected with the courts, and my particular area of focus and my research hasQ Ascreening and prison adjustment for Mr. Nelson.education. A Yes. I received my BA from Harvard University,Cum Laude in 1972. I then entered a program that combined the center for crime and delinquency and their clinical psychology program at Southern Illinois University. I received my Master's degree there in 1973. At that point I entered one of two programs that was set up in the country for training, clinical forensic or clinicalQO ay. Let's first tal a little bit about yourcase to do an evaluation connected with those issues, risbeen risscreening or prisoner classification. Can you tell the jury why you are here today? Yes. I was requested by the attorneys in this41 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25correctional psychologist. This was the University of Alabama and I received my Ph.D. from them in 1977. Q In connection with your Ph.D., did you have to doa dissertation? A I did. Well, I did both. A thesis for myMaster's degree and I did a thesis, that thesis was -- the area criminal classification, separating different types of criminals and at the university of Alabama, my dissertation for my Ph.D. was in the prediction of dangerous behavior. Q A Have you ever done any teaching? Yes. I started my teaching bac at the Universityof Alabama, and since coming to North Carolina, I have taught both at the University of North Carolina and at Du e University.Prisoner adjustment assessment. Can you tell the jury what that is? A Yes. Prisoner adjustment assessment isessentially saying there are differences, there are groups of prisoners. It's ta ing the position that a prison as it receives prisoners can do better than just saying they are all exactly the same. How can we ma e differentiation within them, groups with them, that can help in our prison administration.QLet's tal a little bit about worexperience.52 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25prison classification, which are either synonomous or similar. Q So all three of those things mean the same thing? screening.not, hopefully, moving away from guesswor about prisoner assignments. What sort of cells they need, how high are thedecisions. Q A Q And that is the same thing as prison adjustment? Yes. Yes, it is. Have you done any research with regard to prisonadjustment or creating guidelines for prison adjustment? A Yes. The foundation for this was going all theway bac to when I was in graduate school. The federalour psychology center to develop a new classification for the prisoners in Alabama, a new way of separating the prisoners and then to do it. There were 4,000 prisoners, so we actually spent a few years interviewing each prisoner, developing a system for classifying them.court in Alabama under Judge FranJohnson, then, orderedwalls, are they going to be troublema ers, thosehigher risinmate. So you are ma ing decisions, that areAYes. Ris screening is just saying who is aSay it one more time. Ris1That's risscreening, that's prison adjustment, that'sind of61 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18This classification was primarily for adjustment issues, who is a minimum custody, who is a maximum custody, how do we define differences in those types of prisoners. And so I did over a couple of year period, we evaluated each prisoner, we put them in their categories, we designed a new system for doing that for the state. Q In designing that system, how many individualinmates did you do a prison adjustment assessment on? (Omission). THE WITNESS: There are 3,000 something in the prisons, and then there were another close to a thousand in jail awaiting -- they were held off going to prison until we developed the system. So close to 4,000. BY MS. MAURER:or guideline creation for prison adjustment? (Omission). THE WITNESS: Yes. The primary one was after that wor at the University of Alabama, I was contacted and developed a grant for the National Institute of Corrections which is part of the Federal Justice Department to develop national guidelines for prisoner classification. This was a several year project where we went out to jurisdictions across the country, including Florida, and loo ed at their methods for classifying, refined them.20 21 22 23 24 2519QHave you wor ed on any other national guidelines71 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25It used consensus models and other models to develop a set of national guidelines for ma ing theseadjustment. BY MS. MAURER: Q Do prisons actually use these guidelines that youhelped create? A Yes. Well, before we developed guidelines therewere a lot of prisons that did not have systems for classifying prisoners. Nowadays almost all systems that I am aware of, jails and prison systems, have a classification system. And all the ones that I am aware of used a basis of the model that loo s at patterns of past behavior as a primary guidepost. Q What are they actually using these guidelines for?What are they determining? What are the jails trying to decide? (Omission). THE WITNESS: The jails are trying to ma e decisions having to do with limited resources. Each inmate can't be put in a separate cell and have the highest level of custody. They have to ma e some decisions about which inmates they're not going to worry about as much and be in adifferentiations of prisoners of risscreening of prison81 2 3 4 5 6 7dorm setting, don't need a double escort, whatever the decision about the security levels be, and who is the one that they are -- they don't have that comfort level with,that high level of security. BY MS. MAURER: Q Are these security concerns that prisons are9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25AYes. They are administrative concerns. Anyprison or any jail says we have a lot of people coming in, now we are going to ma e decisions about who goes where, who goes into the single cell, the maximum security and the minimum security, and it helps do that better. Q Can you describe for the jury what your procedureactually is when you do a prison adjustment assessment? A Yes. The prison adjustment assessment is based onthe cornerstone for pretty much all classification models, which loo s at primarily past patterns of acting out or delinquent behavior in similar settings. So in a jail, if a person has been in jail for a while, you loo at the prior jail records. If a person has been inand jail record before that for their patterns of behavior. Is the severity high? Is the recency high? Is the frequency high of criminal behavior, acting out behavior,prison for a long time, you loo8loo ing at when loo ing at the guidelines?that they don't thinis going to adjust well and will needat the prior prison record91 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25problematic behavior? There are additional factors that play into it and you would loo at, for example, are they gang affiliated? Are they drug addicted? Are they an older inmate?of disruptive behavior while in the time that they haveoutside to past patterns of behavior.assessment, what are you actually trying to determine?have adjusted and then you're having those additional factors that I mentioned. Also they have a drug problem, also they're young or old, and then you are using that to ma e decisions. In this case I'm ma ing a statement about how I thin a person is going to adjust. In a prison's case they would say they need to be in a single cell, they need to be double handcuffed or have a double escort, these types of decisions. Q A How did you get involved in this case? I was as ed by Terry Lenamon, the attorney, to doan evaluation. Q A Are you being paid to be here? I hope so, yes.AYou are trying to ma e an assessment of how theyQWhen you are loo ing at those factors in yourbeen incarcerated. If you don't looBut the primary factor is to looat the past patternsat that, you loo102 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25rates for your field? A Q A Yes. I'm not quite sure how you could not be. Have you ever wor ed for the prosecution before? Yes. I have done some evaluations, not testified,but done evaluations in Georgia. Q Have you testified as an expert in courtpreviously? A I have. My first testimony in court was in 1976or '75. My first testimony in Florida was in 1978. Q A In what area were you testifying as an expert? In the Florida case, it was in prisoneradjustment. In the other cases, I'm not really sure. I testify in those areas where a clinician frequently testifies. That could be giving a psychological test, it could be prison adjustment. The area of prison adjustment is probably the one where I'm called upon the most often. Q expert? A I testify at least, I would guess, three or four How often have you testified in court as antimes, five times in a month, and have a similar level for the last 30-odd years. Q A Do you testify in more than one state? Yes. I have testified in over 30 states, and I1QTo yournowledge are your rates the standard111 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25have done and am doing several federal cases now. Q before? A No. MS. MAURER: Judge, at this time I would offer -(Omission). BY MS. MAURER: Have you ever not been certified as an expertA QYes.a chance to tal to Grady? A Q I have. Have you had a chance to review documents withregard to Grady's case? A Q Yes, I have.have loo ed at? AThe records I have reviewed are the records that Irequested the attorney to request from the Department of Corrections in the jail, which are his DOC and jail records that they summarize his behavior, a few other things such as movement and the li e, but essentially his behavior during incarceration.records?QTo yournowledge did you review all of his jailCan you talto us a little bit about what you-- let's go on and talQO ay. Dr. Fisher --about Grady. Have you had122 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25Q A Q A QAnd when you met Grady, did you interview Grady? Yes. How many times did you interview Grady? Three occasions. And can you estimate for the jury how long totalyou tal ed to Grady? AWell, each session is over an hour, but less thantwo, so six hours or so, five or six hours.were spea ing with him? AHow he is doing in his case, in jail.In other words, what misbehaviors does he have and since there so frequently are those misbehaviors, you get the detailing of it that can give you more information about their ta e on it or more information about how it wasQ ADoes Grady's age matter? Yes. Most classification systems that I am awareof, I can't thin of one that doesn't have in there age as a factor. With the position and the research showing that younger inmates tend to be more problematic. He's in his 50s.document these things. Do jails document misbehavior by anQI want to tal a little bit about how jailsdisposed of or any of thoseinds of things.QWhat sorts of things were you loo ing for when you1AAs far as Inow, yes.131 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25inmate? (Omission). THE WITNESS: Yes. Jails document pretty much everything. But, yes, they certainly document disciplinaries. BY MS. MAURER: Q How do they document? What do you mean, when yousay disciplinaries? A Disciplinaries are a misbehavior that is writtenup but again, given a formal designation. In other words, you have disciplinaries for getting in a fight. Disciplinaries for not being in line properly at lunch. The whole continuum of behaviors of concern to a jail administration. Q Is a disciplinary report the same thing as adisciplinary -- in certain places? A Yes. Well, you get a disciplinary. I got in afight, I got a disciplinary. The disciplinary report is then written up. Q The disciplinary report is a result of thedisciplinary -A Q Correct. Are there any other sorts of reports that jails doto document inappropriate behavior or not rule following in a jail?141 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23AYes. Well, for a given discipline, you have thecomputer sheet which will show a disciplinary, when it happened and what it is. You have a separate thing -- but that's a computerized version, and then you have a written up incident report that will have the officer said I was coming down the wal way and saw this happen. In many cases, depending on the disciplinary, you'll have a follow-up in which in case there's a grievance proceeding where the inmate may say, no, I didn't do this or yes, I did and then the response is given, we find you guilty or we find you not guilty. That would be for the higher level. That wouldn't be given if you were not standing in line properly, but that would be given when you have something li e a fight. Q A Q And all these things are documented? Yes. Can you describe what sorts of behaviors jails dogive disciplinary reports for? (Omission).behaviors that would be of concern to a school teacher. THE COURT: Let me just interrupt you, Doctor. I thin what we should do is direct this inquiry to Florida jails and/or Florida facilities to ma e it relevant to this2524THE WITNESS: Yes. I thinI have described the151 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25case. Can you do that, Doctor? THE WITNESS: Yes, I can. BY MS. MAURER: Q Let me rephrase the question. In your experiencein Florida jails and prisons, what sorts of behaviors do inmates typically get disciplinary reports for? A Yes. Based on my review of Florida'sdisciplinaries over many years and many prisoners, they give disciplinaries for misbehaviors starting from not showing up to an assignment on time, not standing in line on time, not getting bac in your cell when requested to, through the more -- the higher level disciplinary, such as possession of contraband. The contraband could be a drug, the contraband could be a weapon. These types of things and then at the higher level you have threatening to riot, trying to escape, beating up another inmate. You have that whole continuum and within that there aresummarizes the continuum. Q So are there disciplinary reports given forbehaviors that are both serious and mild? A Q Yes. So based on your interviews with Grady and yourreview of all the documents from the jails, how manyobviously lots of gradations. But I thinthat that161 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25disciplinary reports has Grady had? A He has had no disciplinary reports in his currentincarceration, the last six years or his incarcerationQBased upon the research you have done in thiscase, have you reached an opinion with a reasonable degree of psychological certainty as to how Grady will continue to adjust to prison and jail? A Q A adjusting. Q A Shifting topics a little bit. What is a red suit? A red-suited inmate, the ones I frequently visit, Yes. What is that opinion? That he'll continue to adjust the way he has beenis a designation, it's a classification for inmates either have gotten in so much trouble that they are red suited or -- and, again, I'm spea ing about in the jail. This is not a prison statement. In the jail red suited means you have gotten there either based on multiple infractions or notoriety of crime. Q How can you compare the security measures the jailgives for a red suit person versus a person who is not in a red suit? A It's one of the highest levels of security andclassification. So it's what I described before, they havebefore, which I believe is bacin '93, '92, '93, '94.171 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25the tallest walls, the single cell, the most detail for movement, security during movement, these types of things.A Q A QWell, he's red suited, yes. Do you now why he's in a red suit? Because of his crime. Is he in a red suit for any reason for hisbehavior since he's been incarcerated? A In my opinion he couldn't be because he doesn'thave disciplinaries. Q A Q A He could or couldn't be? Could not be. O ay. He would have had to have earned his way therethrough that route. Q A Q prison? A Well, the main difference is that the jail Jail and prison are two different places? Yes. Can you describe some differences between jail andpopulation is transient. you are still going to trial orSo, the prison has the advantage of having it's ind of security somebody -- it's custody and security set up for a longer term.coming bacto a trial. So it's transient. Prison is not. QDo you now what Grady's classification is?181 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2005.Frequently both the inmates and the staff that are there, everything is sort of set up in sort of the long-term whereas jail, a lot more movement around, lot more of, oh, I'm going to court I'll be leaving here. It's much harder to do a classification that is the same because the population is always changing.AHe's been in jail for the last six years, sinceQIn your opinion where is it more difficult toadjust and follow the rules and maintain the behavior? (Omission).prison when he goes to prison?been adjusting as well. If anything, it's going to be a better environment for him to adjust well to. Q A Why is that? It's the same, all the way down the road. So itdoesn't have the transient population. In terms of classification, they have a much greater ability to put people of similar age and however they want to do the classification effectively, that can be done in prison a lot more easily. Q Are you aware of why Grady is in jail?AI thinhe will continue to adjust the way he'sQDr. Fisher, how do you thinQWhere do you now is Grady now, jail or prison?Grady will adjust to191 2 3 4 5 6 7 8A QYes, I am. What is your opinion of the fact that he hasadjusted so well to jail when he has -(Omission). Q What is your opinion of Grady's arrest and hisadjusting so well? Can you offer an explanation? (Omission). Q Can you describe Grady's behavior in jail, to your10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25or inmates? A Q He has not. Do you now if he's had any verbal aggressivebehavior with guards or inmates? A Q A Q He has not. Do you now if he's violated any rules? He has not. Do you now if he's been in trouble for shoutingor disobedience? A Q He has not. Do you now if he's had any trouble followingdirections or subordination? A Q He has not. Do you now if he's been uncooperative with guardsor inmates? A He has not.9nowledge? Do you now if he's had any fights with guards203 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25other minor offenses you mentioned earlier? A Q He has not. Earlier, you indicated you had did a study, canyou remind us how many individual prisoners you did assessments on in the research you did? A In the Alabama study and then reclassification ofAlabama's prisoners, we had a total of 4,000, being 3,000 from the prison and a thousand coming into the prison. Q Do you still do individual assessments on theindividuals? A Q A Q A Q Yes, I do. How often do you do that? Again, I do a couple or more each month. And for how many years have you been doing that? 33. And I'm bad at math. Can you have add up anestimate of how many total prisoners that has been that you have done a prison assessment on? A Well, I do a few a month. 12 times 30, so overthousand, I guess it comes out around 1300.AYes. The 4,000 was just sort of a, whatever youwould call it, a crash course. It was the federal judgeQO ay. Is that on top of the 4,000?2anything minor li e being late for dinner or some of the1QDo you now if he's been in trouble for211 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25saying I want you to reclassify all of Alabama's prisoners. We did. We met with each of them individually, but that was every day all day long.(Omission). Q Out of your experience with all of those inmates,how frequently do prison or jail inmates get a disciplinary report if they have been there longer than a year? (Omission). Q A Q A Q that -(Omission). A Q None. And in your recollection and in your experience of an How long has Grady been in jail? He's been incarcerated since 2005. How many years is that? He's in his sixth year. And how many disciplinary reports has he had ininmate with a cleaner record? (Omission). MS. MAURER: I have no further questions. (Subsequent proceedings were reported but are herein omitted at the request of the ordering party).with all of the over 5,000 prisoners, can you thinQSo we are tal ing about 5300, approximately?221 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25CERTIFICATE OF COURT REPORTERSTATE OF FLORIDA COUNTY OF MIAMI-DADEI, BRYNN DOCKSTADER, Court Reporter for the Circuit Court of the Eleventh Judicial Circuit of the State of Florida, in and for Dade County, DO HEREBY CERTIFY, that I was authorized to, and did, report in shorthand the proceedings and evidence in the above-styled cause, as stated in the caption hereto, and that the foregoing pages constitute a true, accurate and correct computerized transcription of my report of said proceedings and evidence. IN WITNESS WHEREOF, I have hereunto set my hand in the City of Miami, Dade County, Florida, this 8th day of February, 2011.________________________ Brynn Doc stader, RMR