ARAPAHOE COUNTY — — Denver Post reporter Jordan Steffen’s updates from Day 42 of the Aurora theater shooting trial at the Arapahoe County Justice Center in Centennial, Colorado.
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Day 42
As the Aurora theater shooting trial moves into its 42nd day, defense attorneys are expected to call an expert they hired to administer neurological and IQ tests on the gunman.
On Thursday, the defense expert is expected to testify about exams administered to James Holmes. Many of the tests are similar to those described by Rose Manguso, a psychologist at the Colorado Mental Health Institute in Pueblo, who took the stand on Wednesday.
After more than six hours of testing, Manguso found that Holmes was smart, likely suffering from a mental illness and probably not feigning his symptoms. Manguso’s exam with Holmes happened in August 2013 — more than a year after the July 20, 2012 attack in which Holmes killed 12 people and wounded 70 others.
Holmes, who faces the death penalty, has pleaded not guilty by reason of insanity.
Manguso’s results were used by the first court-appointed psychiatrist to evaluate Holmes. That psychiatrist, and a second court-appointed psychiatrist, found Holmes to be legally sane at the time of the crime.
Three psychologists administered various exams on Holmes.
Defense attorney Dan King told Judge Carlos Samour Jr. on Wednesday that they are still on track to finish presenting their case sometime next week.
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8:57 a.m.
Before the jury was brought into the courtroom on Thursday, defense attorney Tamara Brady told the judge they plan to call Tara Fournier as the first witness today.
Earlier this week, Samour ruled that Fournier could not testify that she thought Holmes had symptoms of Autism. Fournier has two Autistic sons. Brady asked if she could compare what she noticed in Holmes to behaviors she saw in her sons.
Samour said Fournier can tell the jury that her sons have Autism. She cannot tell the jury that she thought Holmes was Autistic.
Fournier worked with Holmes at the pill production factory in California before he moved to Colorado for graduate school.
The jury was brought into the courtroom.
Samour told the jury that court will start at 9 a.m. on Monday. One of the jurors has a job interview that morning.
Brady called Fournier to the stand. In late 2010 and early 2011 she worked at the pill factory in California.
She met Holmes at the factory. Fournier recognized Holmes in the courtroom.
Fournier worked in the human resources department at the factory. She met Holmes when he came in to interview for the position.
During the interview Holmes was dressed professionally — a button-up shirt and tie.
“He was a little bit different, but he was able to answer the questions,” Fournier said.
Holmes was hired to coat the pills.
Fournier spent two hours training Holmes before he started working.
“He reminded me a lot of my children,” she said. “He seemed like he wasn’t all present all the time.”
Fournier’s two sons have Asperger syndrome and Autism, she said.
Holmes did not start conversations. She doesn’t know if he socialized with other employees.
While he was working in the small space for coating pills, there was an issue when the quality control person felt Holmes was working too slowly. An employee stepped in and told the quality control person to leave Holmes alone. Racial slurs were used by one of the other people, she said.
Holmes was brought in to talk to Fournier as a witness.
“He had very little to say about it,” she said. “He answered questions very briefly but really seemed to have no knowledge of what had happened.”
Holmes did not make eye contact.
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9:13 a.m.
Prosecutor Lisa Teesch-Maguire cross-examined Fournier.
Fournier has not seen Holmes since he left the factory. He left the factory more than a year and a half before the attack, she said.
Fournier said some people are nervous during job interviews. She said some people are nervous during HR investigations.
Holmes appeared to understand everything Fournier said to him. She thought he was qualified for the job. There are few applicants for that position who have Holmes’ education level.
Holmes performed the way Fournier had hoped he would.
A different HR assistant worked at the facility where Holmes was.
Brady asked follow-up questions.
Holmes gave Fournier the impression that he “just didn’t talk a lot,” she said.
Fournier stepped down from the stand.
Next, King called Robert E. Hanlon to the stand. Hanlon is a clinical neuropsychologist. He also works as a consultant and has his own practice.
Hanlon is a board-certified clinical neuropsychologist. He is also a psychologist. Unlike Manguso, Hanlon is not a board-certified forensic neuropsychologist, he said. He has decided not to pursue that area of study and instead focused his career at teaching. He teaches a class on forensic neuropsychology at Northwestern University’s medical center, he said.
There is no board certification for forensic neuropsychology, he said.
Hanlon would take referrals from doctors with different medical specialties. Those doctors asked Hanlon to do evaluations, he said.
He’s been asked to look at patients with brain tumors to determine what their neuropsychological status is. He’s been asked to look at people with dementia, people who are candidates for organ transplants.
Like Manguso, Hanlon administers psychological tests.
“There is a standard administration protocol that you must adhere to,” Hanlon said.
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9:45 a.m.
King handed Hanlon a copy of his resume and asked to have it admitted as evidence. The judge granted the request.
King then asked to qualify Halon as an expert in clinical neuropsychology.
Arapahoe County District Attorney George Brauchler asked to be allowed to ask Hanlon questions before he is qualified as an expert. Samour granted the request.
Hanlon is not a medical doctor. He is not a psychiatrist. He is not a forensic psychiatrist.
A forensic psychologist applies the science to the specific areas of relevant law, he said.
Brauchler asked Hanlon to explain what probate court is.
The primary focus of probate court involves wills, he said. Hanlon said he has been asked to assist in probate court before. He often works if someone has the mental competency to write a will and understand where their assets are going.
Those issues come up for a lot of different people, he said.
“None of those issues come into play for what you are going to do for us. Fair?” Brauchler asked.
“True,” Hanlon said.
Hanlon does have experience testifying in a criminal case. Earlier he said he has testified in 27 cases.
Brauchler points out that Hanlon testified three times in trial that don’t have anything to do with criminal murder or capital murder. Seven times in murder trials and another seven times in capital murder trials. He points out that in each of the cases Hanlon has testified for defense attorneys.
“True,” Hanlon said.
Brauchler asked if it’s fair to say he only testifies for defense attorneys.
“That’s true,” Hanlon said.
Hanlon was previously hired by Brady for a different case in Colorado. He often works for public defenders.
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10:03 a.m.
Brauchler handed Hanlon a copy of his profile from Northwestern’s website.
As Brauchler listed the “disclosures” listed on the page, King objected and the two met the judge for a bench conference.
Samour overruled the objection.
Brauchler asked to have the profile page admitted as evidence. King objected. Samour said he would rule later.
Hanlon listed a public defender’s office under disclosures. He has provided training to public defenders in Illinois. He has provided training for public defenders in death penalty cases in 2005, twice in 2006, once in 2007, once in 2008, once in 2009 and once in 2010. He stopped teaching at that conference because Illinois no longer has the death penalty, he said.
The title of one of his lectures was titled, “Everything You Need to Know About Handling a Death Penalty Case.”
Hanlon also taught at a conference called “Jury Persuasion for Life. A Capital Case Training.”
Brauchler points out that Hanlon has never provided similar training for prosecutors.
Of the 22 mass murderers Hanlon has evaluated, 10 of those 22 were domestic homicides. The other 12 involved two were gang related, at least two were revenge-based mass murders, five were mass murders committed in the coarse of committing another felony crime. Two others involved sex-driven crimes and one was a crime that involved the murder of a woman and her two children in order to cut a 9-month-old fetus from her. One of the offenders wanted another baby, he said.
“You have not ever done a neuropsychological evaluation of a mass murderer engaged in a crime like this?” Brauchler said.
“True,” Hanlon said.
Brauchler asked how many evaluations Hanlon did before the defendants were convicted of their crimes.
Twelve, Hanlon said.
Brauchler said he does not object to Hanlon being admitted as an expert. Samour qualified Hanlon as an expert witness.
The judge released the jury for a morning break before King continued questioning Hanlon.
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10:47 a.m.
After the morning the jury was brought back into the courtroom and King continued questioning Hanlon.
King began by asking about points Brauchler brought up during his voir dire.
The fact that he was invited to do lectures by the Illinois public defender’s office does not affect how Hanlon administers his test and it does not change the results.
“The results, the responses to questions or the task that is being requested or elicited is based on the examinee’s response. I don’t change that,” Hanlon said.
Brauchler asked Hanlon about the motivations involved in the cases in which Hanlon evaluated mass murderers.
“How rare is a mass murder case like this?” King asked.
“It’s extremely rare,” Hanlon said.
“So you haven’t done it and neither has anyone else?” King asked.
“Not that I’m aware of,” Hanlon said.
Defense attorneys asked Hanlon to review information and evaluation Holmes. Hanlon was provided with jail records, educational records, family history records for Holmes, notes from doctors who saw Holmes at the University of Colorado and records from Denver Health Medical Center. It was not necessary to review police reports to perform the tests.
Hanlon evaluated Holmes in April 2013. He administered the testing during a three-day period. Defense attorneys asked Hanlon to conduct a neuropsychological evaluation of Holmes to look at his intellectual and cognitive functions. He was not asked to diagnose him. He was not asked to opine on Holmes’ sanity.
A copy of Holmes’ notebook was not given to Hanlon. He also did not review e-mails, computer searches or text messages. Those documents were not imperative for what Hanlon was tasked with doing, he said.
The difference between neuropsychological tests and personality test is that they are designed to assess different mental functions. Neuropsychological evaluations are intended to objectively assess cognitive and intellectual functions.
“Fundamentally they are meant to asses mental abilities,” Hanlon said.
Other tests done on Holmes were designed to look at personality features and mental illness. Dr. Gray administered those type of tests, Hanlon said.
Hanlon’s role was limited similar to the way that Manguso’s was. Manguso and Hanlon have discussed their results.
Hanlon also did a clinical interview with Holmes. That was in order to obtain information to help him interpret the neuropsychological results.
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11 a.m.
The clinical interview was limited to the information Hanlon thought was necessary. His interview was more narrow than Manguso and Gray’s joint interview. Hanlon did not ask about the crime or the period of time leading up to the shooting.
King did not give Hanlon any “instruction or expectations” about the evaluation. Hanlon described King’s request as “blunt.” He told King what he would need to do.
“That, in essence, was the extent of our exchange,” Hanlon said.
If Hanlon had felt he was not going to be allowed to do an accurate and appropriate job he would have turned down King’s request, he said.
Hanlon prepared slides to help explain his evaluation to the jury. Hanlon said Manguso did a great job outlining what the tests asked people to do and what they are designed to find.
Social cognition is an area of mental ability that involves how people think in social interactions. For example, it involves the perception of facial expression, he said. It’s the ability to tell the difference between a happy facial expression and sad facial expression. It’s also a person’s ability to interpret someone’s tone of speech.
Hanlon chose the tests that he administered. They were similar to Manguso’s tests, but they were also different. Manguso testified that she didn’t want to do tests that Hanlon had administered shortly before she met with Holmes. For example, she did not do an IQ test because Holmes would be familiar with the test and it would affect his scores.
Hanlon tested Holmes’ IQ.
Hanlon met with Holmes in April 2013. They met at the jail. He spent 13 and a half hours testing Holmes. Hanlon spent an hour interviewing Holmes.
In January 2015, Hanlon did a second neuropsychological evaluation. That is a common practice to help assess change over time, Hanlon said.
When he reviewed Manguso’s report, Hanlon saw she found mild neurological deficits.
“Which was different from my evaluation,” Hanlon said. Hanlon did not find any evidence of impairments, he said.
“There appeared to be slight, minor, subtle change,” Hanlon said.
That is one of the reasons Hanlon decided to do a second evaluation, he said. The second evaluation was shorter because Hanlon felt there were areas he did not need to cover again.
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11:18 a.m.
Hanlon administered “crucial” validity tests, he said. Validity tests help to make sure that defendants are not exaggerating or faking symptoms.
Dr. Gray did a second evaluation of Holmes, Hanlon said. Manguso administered three validity test.
Holmes scored 100 percent on two out of three on the validity tests that Hanlon administered in April 2013. Holmes’ scored 100 percent on the test evaluating whether he was giving a full efforts during the exams.
“He showed no evidence whatsoever of feigning or faking,” Hanlon said.
There was no evidence that Holmes was faking or feigning psychiatric symptoms.
“It wasn’t even close,” Hanlon said.
King asked if Hanlon had an opinion of whether Holmes was faking psychiatric illness.
“He consistently shows no evidence of exaggerating symptoms, let alone malingering,” Halon said.
Hanlon also did tests that looked at Holmes’ attention and reaction times. Holmes’ reaction times grew faster during the second evaluation.
A test evaluation Holmes’ ability to process information was administered. Holmes scored in the average range. He took the test three times and scored the same.
Hanlon concluded there were no problems with Holmes’ attention and concentration.
Language tests were also administered. Again, Holmes scored within the average range. Holmes also scored average for a test looking at fluency of thought, Hanlon said.
Test looking at Holmes’ reading and ability to look at a word and break it down in sounds were administered. Holmes scored in the high-average range in the reading tests. His reading function was intact, meaning a person is able to complete the task and their abilities are not impaired.
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11:34 a.m.
Hanlon also evaluated Holmes’ executive function.
“The brain is a system. The different areas of the brain are all connected,” Hanlon said.
Problem solving, reasoning, impulse control and mental flexibility are all considered executive function.
The brain stem is an “old part of the central nervous system,” Hanlon said. It is involved with survival processes.
Hanlon used some of the same tests that Manguso did, including the Wisconsin Card Test.
“Mr. Holmes scored very well on it every time it was administered to him,” Hanlon said.
Hanlon described the “practice effect,” which happens when tests are given more than once. There is a high probability that people will score better when they take the same test a second time.
“Once you know what those concepts are then it is is a breeze,” Hanlon said.
During the Wisconsin Card Test the “rules change” and the person has to figure out the rules based on feedback they get. Hanlon likened it to people having to adjust to circumstances in their owl life.
Practice affect does not invalidate tests, but it is something that needs to be taken into consideration.
“You’d expect him to do better,” Hanlon said.
Hanlon administered other tests for executive function . Holmes’ scores varied but he consistently scored in the average to high-average range, Hanlon said.
“He is demonstrating intact executive functioning,” Hanlon said.
The results indicate that Holmes “is demonstrating consistently that these stabilizes are preserved in him. He possesses these kinds of functions and they are generally intact.”
Hanlon gave Holmes intelligence tests, he said.
A score of 69 or below is considered an IQ that is in the range of intellectually impaired. The term “genius” is not a clinical term. But “genius” is generally considered 140 to 160, Hanlon said.
Holmes scored a 123 in April 2013. That is in the 94th percentile, Hanlon said.
“He would score 94 out of 100 people,” Hanlon said.
“Intelligence doesn’t comprise all mental abilities,” Hanlon said. “It’s actually a relatively limited set of cognitive functions.”
Holmes’ IQ declined in January 2015 to 116, Hanlon said. That is in the high-average range.
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11:49 a.m.
“That is a superior intelligence,” Hanlon said about Holmes’ 123 score.
In January 2015, Holmes dropped seven points.
“That’s still smart, isn’t it?” King asked.
Hanlon agreed but said it is a significant decline in a “negative direction.” It is an abnormal change to see in people, he said.
“It warrants interpretation,” he said. “What is the reason for this change?”
Different scores go together to give a full-scale IQ, Hanlon said. Those four scores include verbal IQ and non-verbal IQ.
“Mr. Holmes showed some evidence of decline in all of the other indexes,” he said. “The primary one where he showed significant decline was the perceptual index.”
King asked if Holmes spending a lot of time in jail reading could result in a decline in his verbal IQ.
Hanlon said that is possible. Holmes read a lot in the jail.
“Reading a lot can increase vocabulary,” Hanlon said.
Holmes’ decline is “unexpected” and “abnormal,” Hanlon said.
“It is strongly suggestive of some kind of pathological process,” Hanlon said.
Schizophrenia and schizophrenia spectrum disorders can cause a decline in someone’s IQ. Some people with those disorders will show decline or dysfunction.
Still, the test results do not provide a specific, definitive diagnosis, Hanlon said.
Holmes declined the most in his non-verbal intelligence, Hanlon said.
King asked if Hanlon has worked on cases where his neuropsychological evaluation lead to doctors to order an image be taken of the person’s brain.
Brauchler objected to the question and the two approached for a bench conference. Samour sustained the objection.
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12:05 p.m.
Hanlon administered a memory test. It looks at someone’s ability to remember information in “word form” and their ability to remember non-verbal memory.
Holmes scored in the low-average range for his verbal memory. His score increased the second time he took the test. His non-verbal scores declined, Hanlon said.
“Again that is unusual and abnormal,” Hanlon said. “You should either stay the same or go up a little bit based on practice effect.”
“He’s functioning at a very high level to begin with. He can only go so much higher,” Hanlon said.
Overall, based on both rounds of testing, Hanlon found that Holmes remained stable in areas like executive functions and language, but he showed an unusual and abnormal decline in non-verbal intelligence. That involves non-verbal perceptions and the ability to process information quickly.
“That kind of trend, that type of decline he is showing is not diagnostic but it is consistent with what we know about changes that occur with some individualist with a schizophrenic spectrum disorders,” Hanlon said.
There was no evidence that Holmes could not lead a normal life before the shooting.
“He clearly was capable of doing those things,” Hanlon said.
The test do not show whether Holmes was psychotic.
The fact that Holmes is sitting in jail does not account for the drop in his IQ, Hanlon said.
Holmes was on his anti-psychotic when he met with Hanlon. It is unlikely those drugs affected his performance on the tests but it is possible, Hanlon said.
Brauchler objected to Hanlon describing the effects of the medications. As a psychologist, Hanlon is not allowed to prescribe medications.
After a bench conference, Samour told King to proceed.
King asked his last question. Samour released the jury for a shortened lunch break.
Trial will resume in one hour.
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1:21 p.m.
After the lunch break, the jury was brought into the courtroom and Brauchler began his cross-examination of Hanlon.
Hanlon provided no opinion on sanity. His opinions are based on the tests he administered in April 2013 and January 2015. He did not review Holmes’ behavior leading up to the attack.
He is not here to provide any opinion on whether Holmes had the capacity to tell right from wrong and he is not there to tell theme if he was able to act with intent.
“Were limitations placed on your neuropsychological evaluation?” Brauchler asked.
Hanlon said he defined what the evaluation would consist of and he proceeding accordingly. He would not have done the evaluation if King had set limitations on the evaluation.
Hanlon said there are times when he is asked not to write a report after doing his evaluation. He will do the evaluation as he sees fit, but if asked not to write a report he will honor that request.
“To not generate a report is to deprive the other members in the system from the information. Fair?” Brauchler said.
“Fair,” Hanlon said.
Brauchler brought up a different case where Hanlon did not write a report. King objected based on relevance.
After a bench conference Samour overruled the objection.
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1:35 p.m.
Hanlon did not write a report in a different murder case. Brauchler wouldn’t let him elaborate.
Hanlon said it is important to talk to family members when doing an evaluation. He did not do that in this case.
Defense attorneys would not let Hanlon interview Holmes’ family. Despite being told he could not do that, Hanlon continued on with his evaluation.
During his January 2015, Hanlon asked Holmes certain questions that King asked him to. He wrote about it in his report.
In April 2013, Hanlon had already read the materials the public defenders office gave him before meeting with Holmes.
“If they don’t give you the records you don’t know they exist. Correct?” Brauchler asked.
“Correct,” Hanlon.
Hanlon reviewed Holmes transcripts. He did not review the assignments Holmes was turning in during his first year of graduate program. But Hanlon did look at two letters that Holmes wrote as part of his college applications.
Those letters were important because they showed his ability to write and the grasp he had on the English language. Holmes submitted the letters in 2006.
Brauchler points out that papers Holmes wrote during graduate school were available. Those papers were not provided to Hanlon. He also did not review the e-mails prior to his first evaluation. He was not provided the Gmail chats.
King objects because, he says, those materials were not available before the first evaluation. He did review some of those materials before his second evaluation in 2015.
Brauchler said videos of Holmes from school were available. Hanlon said he had not reviewed the videos. Hanlon does not remember whether he was provided the videos.
He did review records from mental health professionals at CU.
Brauchler points out that Hanlon was not provided the requests Holmes made in jail before November 2012. Defense attorneys also did not give Hanlon notes written by Jonathan Woodcock — who interviewed Holmes four days after the shooting.
Hanlon said those are notes he would have found useful.
“They didn’t provide those to you?” Brauchler asked.
“Apparently not,” Hanlon said.
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1:57 p.m.
Hanlon noted Holmes’ comments about a hatred of humanity to Dr. Lynne Fenton in his report. But Hanlon did not talk about the comment with Holmes directly.
Hanlon’s report does not include Holmes trying to disassemble a bar in his cell or Holmes trying to pry off an outlet cover.
“Was that not provided to you?” Brauchler asked.
“I think I would recall if I had read it,” Hanlon said.
During his first interview with Holmes he told Hanlon that he had been depressed for about a year and a half. Brauchler asked if Hanlon knew that Holmes had broken up with his girlfriend.
“I did not know that,” Hanlon said.
Hanlon said he does not recall reading that Holmes told other mental health professionals that he was depressed.
Holmes told Hanlon that he sought out therapy in 2012 because he was nervous about public speaking. He never tells Hanlon that he went because he was having homicidal thoughts. He didn’t tell Hanlon about how his treatment ended.
Holmes told Hanlon he went to therapy when he was 8-years-old because he was “screaming but would not talk.” He never mentioned hitting his sister or barricading himself in a room.
Next, Brauchler asked about whether Holmes told him about the time he sawed on his wrists with a piece of cardboard. Hanlon said he didn’t remember if he described it as an attempted suicide or if Holmes did.
Hanlon was not aware that the incident was connected to Holmes going back to therapy.
During his interview, Holmes was “alert” and his eye contact and conversational turn taking were within normal limits. Hanlon never saw Holmes show a lot of emotion.
During the first interview, Hanlon did not ask about Holmes’ theory of human capital, any potential outcomes of the case and whether Holmes felt regret. Those topics were not relevant to the evaluation.
Those were the three areas that King asked Hanlon to discuss with Holmes in January 2015. He asked the questions and wrote down the answers, but he did not ask follow-up questions.
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2:21 p.m.
Bauchler points out that the validity tests do not show whether someone is being forthcoming. Hanlon agreed.
Then Brauchler asked about a test that Hanlon described in court but did not administer with Holmes.
Before Hanlon answered, King asked to approach the bench. After the bench conference, Samour told Brauchler he could proceed.
Hanlon wrote in a book chapter that the test should normally be given. He did not administer the test during his first interview with Holmes. He administered the test during his second evaluation of Holmes.
At that point, Hanlon had concerns because Holmes had heard about the test during a pretrial hearing.
Holmes tested in the average range for auditory.
“That’s not planet for planet Earth,” Brauchler said. The group Holmes was compared to was similar to white men in his age group with similar education.
For his visual tests, Holmes was within normal limits in average range, Hanlon said. He tested in the average range for auditory.
By the end of his 2013 evaluation, Hanlon found that Holmes was average and intact.
Hanlon tested Holmes’ executive cognitive functions. Those functions included planning, problem solving and the ability to “shift” based on different circumstances.
“He is doing very well in that, right?” Brauchler said.
“Yes,” Hanlon said.
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2:42 p.m.
Hanlon found nothing to indicate that Holmes lacked the ability to appreciate when someone was frightened.
When Hanlon gave King his report after the 2013 evaluation he thought “I’ve completed my job in this case.” He assumed he could be asked to consult at a later date. He did not think he would be called back by the defense.
During the fall of 2014, defense attorneys called Hanlon called back. Hanlon scheduled his evaluation with Holmes two weeks after jury selection began. He issued his report after jury selection started.
By then, Holmes had undergone a lot of psychological testing, “even more” than he had undergone before the April 2013 evaluation, Brauchler said.
“There is no reason to think he wasn’t completely aware of the issues at hand regarding his mental health,” Brauchler said.
“True,” Hanlon said.
At the time of the second evaluation, Hanlon had additional records to review. But those records did not include Woodcock’s notes, e-mails and Gmail chats. Hanlon was provided some of the materials. He was provided the notebook and he did review the notebook before his second evaluation.
Hanlon did not ask Holmes about the notebook. He did not note in his report that he had the notebook.
During the second evaluation, Hanlon asked Holmes about the books he was reading.
“I was interested in how he was spending his time,” Hanlon said.
Holmes was reading several books, including American Assassin.
The software that is used to help score the exams could not account for the practice effect while scoring Holmes’ second evaluation.
Hanlon administered Holmes’ second IQ test 20 months — about 600 days — after the first. But Hanlon included the practice effect while scoring Holmes’ tests.
Brauchler called that decision an error because the practice effect was diminished. Hanlon called the characterization a “reasonable” conclusion but said he still felt it was worth considering.
The three intelligence tests Hanlon administered are scored differently. Holmes’ results dropped the most in the two tests that were timed. His score only dropped by one point in the third test, which was not timed.
One of the timed tests included 14 sub-tests. The time limits change depending how complicated the puzzle is. If someone goes over by one second they don’t get any points. If someone makes it within the time limit they get a maximum of four points. Some of the tests allow for bonus points if you complete it quickly. The maximum amount of time given is two minutes.
Brauchler asked if it’s possible to take the test 20 months apart and drastically change their score by being only a little bit slower.
The second timed test only gives people 30 seconds to answer questions. Being only a few seconds slower could greatly affect someone’s score, Hanlon said.
By the time Holmes took the test in 2015 he had been isolated in jail for 899 days.
The speed at which someone does these tests can be affected by depression.
“This guy’s depressed, right?” Brauchler said.
“He is,” Hanlon said. He noted that Holmes said he was less stressed than he was the first time he met with Hanlon.
Stress can also affect the speed at which someone takes these tests. The second evaluation was given just two weeks before jury selection.
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2:47 p.m.
Brauchler points out again that the validity tests do not show whether someone is being honest or forthcoming with their answers. The test, which is designed to see if someone is feigning or exaggerating their symptoms, has more than 500 questions and asks about things such as hallucinations.
King objected before Brauchler could continue asking about the tests.
After a bench conference, the judge decided to let the jury go on a break instead of keep them waiting.
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3:26 p.m.
After the break, before the jury was brought in, Samour asked Brauchler how in-depth his questioning would be about a specific test.
Brauchler said he wants to ask about the tests and some of the questions in the case and whether he revealed the answers with anyone. King said that all of the questioning is beyond the scope of what he asked during direct examination. He said the testimony would not be relevant.
Samour, who reviewed his notes during break, said there was a slide prepared by Hanlon that was shown to the jury. The slide showed the results of the test that was administered by Dr. Gray. The test in question has to do with malingering. Samour pointed out that Hanlon referenced the testing he did and the testing done by Gray when explaining the test to the jury.
“It’s fair, if you open that door, for the prosecution to ask questions,” Samour said. Samour overruled King’s objections.
King asked if the ruling means Brauchler can only ask about the test and how it relates to malingering. The judge said he will allow Brauchler to ask questions about the test results that have already been shown to the jury. He instructed King to object if he has concerns.
King again asked for clarification about the ruling. He held his hands out with his palms up as he asked the question.
The significance of the scores is fair game, Samour said.
“This witness included this information in his materials, apparently relied on it,” Samour said. “I think opposing counsel is now entitled to ask questions about that.”
“I persist in my objection,” King said. “We shouldn’t go beyond what I asked about.”
“So be it,” Samour said. “The record has been made and I have ruled.”
The jury was brought into the courtroom.
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3:39 p.m.
Brauchler continued his cross examination. He asked if Hanlon was “super familiar” with the validity test.
Hanlon did not administer this specific test in this case. He did review the results of the test that was administered by two other psychologists.
The test has 567 questions. The test includes questions about whether someone is experiencing hallucinations, both visual and audio. It asks about other psychiatric topics, Hanlon said.
Questions also touch on physical health. All of the questions are asked in a specific order and that order never changes. Holmes took the same test in July 2014 and August 2013.
Hanlon was not able to compare the answers to the tests administered by other doctors to the statements Holmes made to him.
King continues to interject objections after Brauchler’s questions. Samour repeatedly overrules. King objected to three consecutive questions.
The test doesn’t show if the statements are true, Brauchler asked.
Hanlon agreed and said the test only creates valid profiles.
The decrease seen in Holmes’ intelligence tests had to do with him missing five puzzles, but was 100 percent accurate in a different intelligence test. Holmes was significantly slower on two of the 14 intelligence test.
“Those two puzzles make up the bulk of the difference in his score on the block design test?” Brauchler asked.
“Yes,” Hanlon said.
Holmes’ full-scale IQ shows a drop because of the way he answered seven tasks on two tests 20 months after he did them the first time. He also lost points for two other areas.
Holmes’ scores increased on the test that shows executive functions such as planning and problem solving. He took the test three times between the different doctors.
In April 2013, Hanlon performed a test that would measure if someone understood consequences. Holmes did well on that test.
Hanlon said he had no indications that Holmes lacked the ability to distinguish between right and wrong. He did not see anything to suggest that Holmes lacked the capacity to act with intent and plan.
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3:57 p.m.
King asked Hanlon follow-up questions.
Instructions from defense attorneys did not affect Hanlon’s work or Holmes’ mental state, he said. In the case Brauchler pointed to in which he did not write a report, Hanlon clarified that he wrote an initial report in that case. He did not write a final report because he was asked to do a sanity evaluation and he did not find the defendant in that case to be legally insane.
Hanlon wrote a report in this case.
“I’m willing to look at anything that is relevant to the case,” Hanlon said.
While Hanlon likes to talk to people who knew the defendant he is evaluating, it is not essential to doing an accurate evaluation, he said.
Reading Holmes’ letter was important because it helped him look at his cognitive abilities. He did not need to look at Holmes’ school work or jail requests to do the same thing. Not viewing video recordings of Holmes’ school work does not affect his ability to do a neuropsychological exam of Holmes, he said.
Not watching the videos does not change Holmes’ mental abilities, Hanlon said.
Hanlon lists the records he reviewed in chronological order in his report. Asking Holmes about his history was important because it could reveal things that could affect the tests Hanlon administered.
There was nothing in the notebook that would affect the validity of Hanlon’s neurological testing of Holmes.
“Completely irrelevant?” King asked.
“Essentially to me, yes,” Hanlon said.
Hanlon’s review of the validity test done on Holmes showed no indication that Holmes was malingering or exaggerating or feigning his symptoms.
King asked if the practice effect stops after 82 days.
“Of course not,” Hanlon said.
The manual for intelligence tests says that the practice effect can remain in place for one to two years, he said. There was no indication that the practice effect had gone away in this case.
“There is no reason to expect that the practice effect is going to disappear in 82 days,” Hanlon said.
The common prediction is that if the practice effect had disappeared Holmes should have gotten a higher score in his second intelligence test.
King waves his hands in front of him and makes forceful motions toward a slide when he asked his questions.
“Mr. Holmes was not penalized by going on beyond time limits,” Hanlon said.
King asked if Brauchler’s characterization of the test was wrong.
Hanlon agreed.
“He just got the puzzles wrong,” King said.
“That is correct,” Hanlon said.
Depression does not account for that significant drop in someone’s IQ. Holmes told Hanlon that he felt less depressed the second time he saw him.
— — —
4:12 p.m.
Holmes got no zeros on one of the block tests. But he was significantly slower in his ability to do the puzzles.
“That’s why he scored lower, right?” King asked
“Yes,” Hanlon said.
“Isn’t that the point of the whole test? The speed?” King asked.
“It is,” Hanlon said.
King pointed out a decrease in speed like this is a prominent symptom of schizophrenia. Hanlon agreed.
Nothing Brauchler said changed Hanlon’s position, he said. Nothing Brauchler said changed the fact that Holmes had a significant drop in IQ during the past two years, he said.
Brauchler also asked follow-up questions.
He began by asking about the practice effect.
“Was that number based on a presumption that it was no more than 82 days,” Brauchler said.
“That’s what the software says,” Hanlon said.
Practice effects on the intelligence scale exists for much longer than 82 days, Hanlon said. It is common practice for professionals to calculate the practice effect the way he did.
“You used an inaccurate tool in your report. Fair?” Brauchler said.
Hanlon disagreed.
People with higher intelligence can have practice effects last longer than others, Hanlon said.
Brauchler brings up the fact that Hanlon did not talk to Holmes’ family.
Brauchler points out that Hanlon testified in a death penalty case in a different state that it was important to talk to people who know the defendant to get as much information as possible. Brauchler read from a transcript of the case.
“That did not happen here because you were not permitted to do it, correct?” Brauchler said.
“True,” Hanlon said.
Hanlon asked Holmes about drug and alcohol use to determine if it could have affected his status.
Brauchler asked about Hanlon’s answers to King’s questions about the validity tests. King objected and asked to approach for a bench conference.
— — —
4:42 p.m.
Samour sustained the objection.
Hanlon said he would have preferred to have had access to the texts, e-mails and Gmail chats. He was not provided those materials by defense attorneys.
The notebook showed problems Holmes considered and solved, Hanlon said.
“These all feel like what you’ve described as executive functions, right?” Brauchler asked.
“They are certainly reflecting strategic planning,” Hanlon said.
The judge read Hanlon six questions submitted by the jury.
Why if you stated talking to families is important would you not stand by your belief and tell the defense it was something you needed to do?
There is important information to be gained from those interviews, Hanlon said. He chose to proceed and conduct the evaluation he agreed to do, it was not “optimal it was not ideal for me,” he said.
Much of the information and reports available were not relevant to doing an accurate test. Why not review any data other than what was provided by the defense?
“I was provided with a massive amount of data. I chose what I thought was relevant,” he said. He often does evaluations with minimal information.
Are any sections of the test graded on a subjective basis?
No, he said. A raw score is converted into a scale score and compared to a similar group of people.
“There is no subjective scoring, or subjective analysis of scores,” he said. “The scores are what they are.”
Would slowing down a bit purposefully on block or puzzle tests be malingering or affect results if a person understood how a test worked?
There is a remote possibility of that, he said. There was no evidence Holmes slowed down on other timed tests.
Can a lack of intellectual stimulation cause a non-verbal decrease in scores?
Isolation is more likely to cause emotional changes than it is to cause intellectual changes, Hanlon said. There is a remote possibility that depression could have secondary effects on intellectual functioning.
Can going from hands-on experimenter to only reading cause a decline in non-verbal scores?
“I do not believe so, he said
Could going from playing lots of video games to none cause a decline in scores?
“In my opinion, no,” he said.
— — —
4:59 p.m.
King asked follow-up questions about talking to Holmes’ family.
If Hanlon thought there was a remote possibility that not talking to family would invalidate the evaluation, he would have refused to do it, he said.
“That was not the case here,” he said.
He did review other reports by other doctors who interviewed Holmes’ parents. He only received information from defense attorneys. It would have taken Hanlon months to read all the information he was provided.
Hanlon does not have a way to subjectively change scores on the tests.
There was “no question” in Hanlon’s mind that the tests he did are valid and accurate, he said.
Being isolated will not directly lower someone’s IQ.
Brauchler also asked follow-up questions.
“The information you were provided was limited by who hired you, correct?” Brauchler asked.
“True,” Hanlon said.
The question about whether it’s possible to malinger on one of the intelligence test is interesting, Brauchler said.
Hanlon said an experienced neuropsychologist would be able to manipulate the time limits in the test.
Brauchler asked if someone smart could do the same or if someone who had taken the test 20 months earlier could manipulate the tests.
“That would be a significant practice effect,” Hanlon said.
Hanlon stepped down.
Samour told the jury that he was going to read them the full advisement because there is a long weekend coming up.
There will be no court tomorrow.
He told told the jury that he hopes to give the case to the jury the week of July 13.
Samour told the jury to avoid any media reports. He reminded jurors not to talk to each other or other people about the case.
The remaining jurors are not allowed to contact or speak with any of the jurors who have been dismissed.
“Please have a great Fourth of July weekend,” Samour said.
The jury was released for the weekend.
— — —
5:16 p.m.
After the jury left, King said he now thinks the defense will rest its case on Thursday. If that is the case, prosecutors may end up calling their rebuttal witness on Friday of next week.
“We’re making the best estimates that we can,” Samour said.
The judge still needs to meet with the attorneys to discuss jury instructions.
Samour gave the attorneys his latest draft of jury instructions. He included the lesser included offenses in this draft.
The verdict form will have multiple parts. Samour said they are to designed to avoid the scenario where Holmes is found guilty of one charge that would result in him being sentenced to prison and a different charge that would involve committing him to the state hospital.
Samour said he will take arguments for the jury instructions at a later date.
Defense attorney Kristen Nelson asked to approach the bench with a prosecutor. She and prosecutors Rich Orman met Samour for a bench conference.
After the bench conference, Samour released everyone for a five-minute break. He and attorneys will return to the courtroom.
— — —
5:47 p.m.
After a short break, Samour returned. The jury has already been released for the day.
Before continuing, Samour called Nelson and Orman back up for a bench conference.
After the bench conference, which lasted for more than 10 minues, Samour asked, “Is there anything else?”
The question drew laughter from the gallery.
Samour smiled and stepped down. Trial will start around 9 a.m. on Monday.
MJordan Steffen: 303-954-1794, jsteffen@denverpost.com or twitter.com/jsteffendp Follow @jsteffendp on twitter
