ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Monday, March 18, 1996 TAG: 9603200020
SECTION: NATIONAL/INTERNATIONAL PAGE: A-6 EDITION: METRO
DATELINE: BOSTON
SOURCE: Associated Press
A judge's refusal to let John C. Salvi III testify on his own behalf - even though he earlier had said he didn't want to take the stand - could provide his lawyers grounds for an appeal, legal experts said Sunday.
``In a case like this, a defendant's testimony is not just testimony, he is an exhibit for his own insanity,'' Harvard University law professor Alan Dershowitz said Sunday. ``It sounds like a classic appellate issue.''
Defense attorneys asked to put Salvi on the stand Wednesday to rebut a prosecution psychologist who testified that Salvi was sane when he opened fire on two abortion clinics in December 1994.
Dr. Joel Haycock also said he thought Salvi was smart enough to fake mental illness.
``We thought the best way would be to let [the jury] see with their own eyes and hear with their own ears'' how delusional Salvi is, defense attorney J.W. Carney Jr. said Saturday.
Superior Court Judge Barbara Dortch-Okara said the testimony would be irrelevant because Salvi would use the time to talk about his belief in a worldwide anti-Catholic conspiracy, Carney said.
Nina Flaherty, spokeswoman for the Norfolk County district attorney's office, would not comment on the defense request or the judge's response.
``The only comment that (prosecutors) have at all, is Salvi was asked in open court last week to testify and he said no,'' Flaherty said Saturday. She had no further comment Sunday.
Boston College law professor Phyllis Goldfarb said Salvi's testimony probably wouldn't be relevant in a case where state of mind wasn't the issue.
``But in a case like this ... it seems to me there's a good argument that it is relevant,'' she said.
On Tuesday, Salvi told Dortch-Okara that he understood his right to testify but did not want to take the stand. The defense then rested its case.
It was not clear whether the judge's decision was linked to Salvi's earlier waiver. The ruling was delivered in Dortch-Okara's chambers rather than open court.
There was no answer at the judge's office Sunday, and she has an unlisted home telephone number.
Legal experts said Massachusetts laws are unclear about whether Salvi's initial refusal to testify meant he relinquished his right to do so for the remainder of the trial.
A defendant's right to testify ``is traditionally viewed as so important that it can prevail over other statutory rules or court rules at times ... but it's not unlimited,'' said Frank Herman, a Boston College law professor. ``Exactly where the limits lie is probably what's at issue here.''
Goldfarb said it would ``clearly be a reversible error'' if Salvi had been denied the right to testify before the defense rested its case. The implications of the judge's denying it in the rebuttal phase of the trial, however, were not clear, she said.
``I think any time that the defense is making the request for the defendant to take the stand and that's denied, there's an appellate issue there,'' she said.
Salvi, 24, is charged with murdering Lee Ann Nichols, a receptionist at Preterm Health Services, and Shannon Lowney, the receptionist at Planned Parenthood, and wounding five other people in back-to-back shootings at the two Brookline clinics Dec. 30, 1994. He has pleaded innocent by reason of insanity.
Prosecutors say Salvi is an anti-abortion extremist who carefully planned his crime. Defense attorneys say he is a paranoid schizophrenic who thought he was fighting an anti-Catholic conspiracy.
The jury deliberated about 6 1/2 hours Saturday before adjourning until today.
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