Authors: Steve Bogira
Prosecutor Nolan had been assigned to juvenile court before he came to 26th Street. There he learned of the “hideous things” that adults, and often parents, sometimes do to children. He also saw how little was done to help the children: battered kids were often returned to their families or moved to homes that were even worse: “We certainly weren’t solving any problems over there. Just trying to control things, I guess.”
He doesn’t doubt that McGee was a victim before she became a culprit: “I think most defendants were victims at some point. They’re part of a situation that perpetuates itself. That doesn’t absolve them, though. You can’t ignore the new crime.” Not that he has any illusions about what adult court achieves. As at juvenile court, “you’re just solving the problem you have today. And you’re not really solving that. You’re just saying, ‘Here are some consequences.’ All it is is a Band-Aid.”
PLACEK DOUBTED
she could win McGee an outright acquittal based on self-defense, given McGee’s admission that François ordered her out of the cab before she shot him and the fact that McGee was carrying the gun in the first place.
So Placek was aiming mostly for a conviction of only second-degree murder. In Illinois, a person is guilty of second-degree murder if he or she believed the circumstances justified the use of deadly force, but that belief was “unreasonable.” (Second-degree murder was formerly known as voluntary
manslaughter—the charge McGee’s half brother was convicted of.) The minimum sentence for first-degree murder is twenty years. For second-degree, the minimum is four years, but a judge can give probation. And since McGee was a juvenile at the time of the shooting, if she’s convicted of only second degree, Locallo could send her back to juvenile court for sentencing. If she were locked up under juvenile law, she’d have to be released by her twenty-first birthday at the latest—just two and a half years from now.
Placek’s plan is to convince the jury that post-traumatic stress disorder made McGee believe—though unreasonably—that she had to shoot François.
Doctors had long noted in military veterans the symptoms of what is now known as PTSD—flashbacks, nightmares, and a pronounced agitation that sometimes erupts into violence. Doctors called this “shell shock” or “combat fatigue.”
PTSD became a formal diagnosis after the Vietnam War. It’s currently defined by the American Psychiatric Association as a “
development of characteristic symptoms following exposure to an extreme traumatic stressor.” That stressor can be not just combat but also an accident, a natural disaster, or a sexual or violent assault—anything threatening death, serious injury, or harm to one’s physical integrity.
PTSD was
first used as a criminal defense in the early 1980s by Vietnam veterans. These veterans would typically maintain that they had committed their crimes while reliving a combat experience—in some cases, that they believed they were under enemy attack and responded accordingly. More recently, PTSD evidence has been used to buttress battered-woman defenses, the women contending they were mentally reexperiencing an assault at the time they lashed out. Juries and judges rarely acquit defendants because of PTSD evidence. Probably they’d agree with Locallo’s assessment of PTSD: “It exists, but a lot of it is bullshit.” Sometimes, however, PTSD evidence helps turn a likely first-degree murder finding into a lesser conviction.
In June, Placek had had McGee evaluated by a forensic psychologist named Larry Heinrich. Placek and Heinrich have known each other for years and consider each other friends. Heinrich had testified for about eight of Placek’s clients.
They wrote an article in a law journal on the battered-woman defense. Heinrich interviewed McGee in the jail for several hours, talked with her father, and reviewed her jail records and the police reports in the François case. Then he diagnosed McGee as having bipolar disorder, borderline personality disorder, and “features of PTSD.” The PTSD finding was especially significant. In a first-degree murder trial, judges won’t give the jury the option of a second-degree verdict unless there’s evidence
supporting such a verdict. Illinois courts have deemed PTSD, but not mood disorders or personality disorders, as a possible basis for the “unreasonable belief” needed for second-degree murder.
Placek had another decision to make before trial regarding the PTSD defense: she had to decide what to attribute McGee’s PTSD to.
Placek knew that PTSD was considered to be common in victims of childhood sexual abuse and that McGee fit the profile of such a victim.
According to the National Center for PTSD, child sexual abuse victims often show sexual behavior or seductiveness inappropriate for their age; tend to have behavior problems, including running away; may try to injure themselves or attempt suicide; are frequently agitated or depressed; and often use alcohol and drugs to help soothe emotional pain.
But jurors dislike assertions by a defendant that an abusive upbringing played a leading role in their crime, Placek says. They’re not inclined even to reduce a murder verdict to second degree unless substantial abuse can be proven, she says. And proving child abuse is often difficult. McGee might fit a profile, but that wasn’t proof. There were no records, as far as Placek could determine, of abuse in McGee’s home. Without supporting evidence, all there would be was what McGee herself would say on the stand. And McGee was disinclined to testify that she’d been sexually abused, which didn’t surprise Placek. “Can you imagine how hard it is to talk about sexual abuse, even to one other person? And then can you imagine saying it in an open court, with sheriffs, jurors, lawyers, a judge, and a court reporter taking everything down? And saying it so you don’t sound like a whiner?”
So Placek decided to attribute McGee’s PTSD not to childhood sexual abuse but to an abduction she says she suffered a year before the shooting. There were definite advantages in relying on this 1996 abduction instead of on childhood sexual abuse. McGee was willing to testify about it; and there was a police report, albeit a vague one, about the incident.
As with her rejection of the battered-woman defense, Placek decided to stay away from the subject of childhood sexual abuse for strategic reasons. Lawyers don’t try their cases according to their assessment of what really happened, Placek says, but on their estimation of what might work: “Both sides put on a case they think they can win.”
ON THE SECOND DAY
of the trial, McGee is dressed like a private school student—white dress shirt, red-and-black-checked blazer, black skirt—as she heads for the stand. Her crew socks are pulled up on her calves again, lest a juror glimpse the tattoo.
Placek has decided to let her second chair, public defender Camille Calabrese,
handle the direct examination. Placek figured that McGee’s testimony would seem less stage-managed if the junior lawyer on the case did the questioning. The testimony would, of course, be stage-managed, to the extent possible. Placek and Calabrese had rehearsed McGee repeatedly on her testimony, going over the questions Calabrese would ask, as well as the questions Nolan would likely put to her on cross. “We worked and worked and worked with her,” Placek says later. “You can script a client as much as you possibly can, but when she hits the stand, all you can do is pray.” Placek will hasten to add that by “scripting,” she doesn’t mean telling a client to lie, just advising them “what light to put things in.”
“Calling your attention to April of 1996,” Calabrese begins, “did anything unusual happen to you?”
“Yes, I was kidnapped by a man,” McGee says.
McGee had been staying at a friend’s in the suburb of North Chicago, she tells the jury. As she walked to a neighborhood pay phone to call her mother, she was accosted. A man forced her at gunpoint into the basement of a nearby house, where he made her strip and tied her to a couch. The man, who seemed to be Jamaican or Haitian, started smoking cocaine. He kept the gun nearby, and he had a knife in his hand as well.
“He took lighter fluid from out of the house, and he brought it into the room—and I don’t want to talk about this, I don’t want to talk about it, please don’t make me talk about it,” McGee says with a short sob.
“Leslie, if you need a moment, we can rest a moment,” Calabrese says.
“I can’t do it,” McGee says.
“Leslie, I’m sorry, but I have to ask you these questions,” Calabrese says. “And the jury needs to know what happened to you. What did the man do with the lighter fluid?”
McGee licks her lips and abruptly resumes. The man poured the lighter fluid over the couch to which she was tied. He smoked seven or eight bags of cocaine. He gagged and blindfolded her, then raped her. He kept threatening to kill her and kept saying “all types of nasty things he wanted me to do to him sexually, what he wanted to do to me.” He raped her “twice. Or three times.” He stroked her body with the knife, asking her where she’d like to be stabbed. McGee’s face is blank and her tone flat as she relates these details—she could be describing last night’s dinner. Her answers are almost inaudible; Locallo asks her repeatedly to speak up.
The man smoked more cocaine, McGee continues. He “kept trying to make me kiss him, telling me, ‘Bitch, if you scream, I’m going to kill you now.’ ”
“And what were you doing?” Calabrese asks.
“Crying, pleading with him, pleading, ‘Spare me.’ ”
Calabrese doesn’t ask McGee how she could have said anything if she was gagged. And when McGee says the man showed her a lighter and threatened to ignite the couch, Calabrese doesn’t ask her how she could have seen the lighter if she was blindfolded. At the defense table, Placek, ever aware of the jurors’ watchful eyes, is affirming McGee’s responses with nods but wincing inwardly.
The man left her alone after seven or eight hours, McGee says. She freed herself from her bindings and removed the gag and blindfold. Upstairs she found a sweater and pulled it on, and she wrapped a towel around her waist. Then she raced, screaming, to the house across the street. The man there let her in and called the police, who took her to their station. Placek suppresses an urge to groan. McGee’s account doesn’t even match the lawyer’s opening statement, in which Placek had said police found McGee “running naked from her captors who had had her for several days.” (Placek says later she based this on what McGee told her.)
McGee tells the jury she led the North Chicago police back to the house where she’d been held captive. But no one was there, and to her knowledge no one ever was arrested.
(The North Chicago police report about the incident says police got a 911 call from a “hysterical female.” The officer who responded to the home from which McGee called found her wearing just a T-shirt and a towel wrapped around her waist. She said she had been abducted at gunpoint by a black man with a Jamaican accent, who forced her into the basement of an apartment building. He took her clothes from her and tied her up on a couch, she said, but he didn’t rape her. The apartment in which McGee said she had been held was in “complete disarray.” Police found masking tape on the floor, along with cords, wire, string, several socks—one of them tied into a loop—and an unopened package of condoms. In the kitchen they found a small amount of what appeared to be rock cocaine, along with a broken ink pen, presumably used to smoke the cocaine. A neighbor in the apartment complex told police he had heard a girl yelling during the night but that he couldn’t tell whether she was laughing or crying.)
McGee now tells the jury she had trouble sleeping and eating after the North Chicago attack. Men unnerved her, Jamaican and Haitian men in particular.
She says she took the gun from her father’s house because she had an abusive ex-boyfriend and because she feared for her life after the abduction. Calabrese doesn’t ask her to elaborate on her ex-boyfriend’s abuse or to explain why she didn’t take the gun until eleven months after the kidnapping.
When François grabbed her breast and hit her, “It wasn’t him I saw,” McGee says. “I saw the man that kidnapped me.”
“And when you thought you saw the man who kidnapped you, what did you do?” Calabrese asks.
“I guess I shot him.”
She says she got into the front seat of François’s cab when he invited her to “because I’m a trusting person. I trust any- and everybody.”
On Nolan’s cross, McGee says she doesn’t know the last name of the friend she stayed with in North Chicago. The person was actually a friend of another friend—whose last name she doesn’t know either. She allows that she didn’t tell the North Chicago police that her abductor raped her.
When Nolan presses her for specifics about the shooting of François, McGee’s memory dims. She doesn’t recall much about the shooting, or about what she did afterward that night, or about her standoff with police two days later, or about confessing. “I don’t remember things I do from the last five minutes,” she tells Nolan.
When her testimony is complete, Locallo dismisses the jury for the weekend.
After Rhodes escorts McGee from the courtroom, Placek, gathering her files at the defense table, tells me she doubts that the jury believed McGee’s account of the abduction. Jurors expect a great show of emotion from witnesses recounting how they’ve been victimized, when in fact victims of traumas often closely guard their feelings, she says. Did Placek herself believe McGee was raped in North Chicago? The lawyer hesitates, then says, “I believe she believes she was raped.”
After Placek leaves, Deputy Rhodes tells me that she too doubts that the jurors bought McGee’s testimony. “I think something bad really did happen to her, but it’s not what she’s testifying about,” Rhodes says. “I keep thinking: ‘Leslie, why don’t you just say what happened?’ ”
NOLAN HAS LITTLE REGARD
for most psychologists and psychiatrists who offer expert testimony in criminal trials. “A lot of them are just whores,” he says. “That goes for the state’s experts as well as the defense’s. They can take any set of facts and arrive at whatever conclusion they want.”
On the trial’s third day, psychologist Heinrich tells the jury that when he interviewed McGee in the jail, she described the abduction in North Chicago. She also told him that after that “very life-threatening episode,” as Heinrich calls it, she lost weight and had trouble sleeping; she was anxious and fearful; and she had unsettling flashbacks of the abduction. She was constantly on her guard around men, fearing “that she would be sexually assaulted or possibly killed.” These are classic PTSD symptoms, Heinrich says.