Once the jury was brought back in, the prosecution proceeded with its case by calling Dr. Ben Galloway, a pathologist who conducted the autopsy of Tate's victim, 41-year-old Steven Fitzgerald, the father of Michael Fitzgerald, Tate's partner-in-crimes – crimes ranging from theft to drugs to murder during a spree when the teenagers two ran away from a group home in 2004.
With gruesome photos of the bloodied victim shown on an overhead projector for the jury, Galloway testified as to which wounds on Steven Fitzgerald's head, chest and back were from the shovel that Tate is accused of using to whack Fitzgerald to death, and which ones are from the knife that Tate allegedly used to stab him. Some of the injuries sustained by Fitzgerald also could have come from a post-hole digger that Michael, now serving 62 years for a plea bargain in the case, has admitted throwing at his father during the struggle.
The majority of the day’s testimony, however, focused on Dr. David Johnson, a forensic psychiatrist who interviewed Tate at the state's mental facility in Pueblo to determine whether or not he was sane while he committed the murder at age sixteen. Johnson testified that Tate may be the only juvenile he evaluated for sanity in the last 24 years, when he had mostly adult and geriatric clients. He interviewed Tate on six occasions for a total of about seven hours – double the time that Johnson normally allocates to most evaluations, he said.
“My conclusion was that Michael Tate was legally sane at the time of this offense,” Johnson said early on in his several hours of testimony.
Johnson mentioned “an amazing record in terms of diagnoses and medications that (Tate) has received over the years,” including five different anti-depressants, six different anti-psychotic prescriptions, two sedatives and several other medications, none of which have made a consistent improvement in Tate's behavior or mood for a significant amount of time and none of which Tate was on at the time of the murder. Tate had also been diagnosed with an array of mental illnesses ranging from post-traumatic stress disorder to bi-polar disorder, Johnson testified.
“We can't just assume that everything that is written about him has some kind of truth to it,” Johnson told the jury, “but the bottom line is nobody has been able to pin down what exactly is wrong with this kid.”
For example, did Tate really see the spider hallucinations that he reported to specialists over the years? And if he did, were they something psychotic or a side effect of one of the many medications that he was on? Also, not long before the murder in question occurred, Tate locked himself in a shed and drew upside down crosses and pentagrams on his torso, and also reported seeing blue flames and the face of Lucifer. Johnson testified that he wasn't convinced Tate really saw those things: Tate might have made them up, or if he did indeed see something like he described, it could’ve been induced by the joint that he smoked a half-hour prior, which may have been laced with angel dust or other drugs.
There’s no question that Tate has a very disturbed history, Johnson acknowledged, having been taken from his family at age three. Tate’s father was always on the run from the law or locked up; his mother’s parenting rights were terminated after abuse allegations surfaced, abuse by her or one of the men she had around her young son. But Johnson also said there’s no evidence that Tate was abused in any of the many foster homes in which he spent his childhood, nor is there any evidence that the abuse that he did sustain before his foster placement amounted to something serious like a broken bone or burn.
Actually, Johnson testified, if anyone was abused, it was the families who took Tate in. He bit a foster mother's breast, assaulted a foster brother and threatened to rape and kill them both, and also threatened to murder the household's father. Although some of Tate's behaviors do fit under psychotic symptoms -- his suicidal tendencies and the time he killed two hamsters in his kindergarten class and brought the bodies home – Johnson said that most of the behaviors that Tate has exhibited over the years more accurately classify him as afflicted with another condition, childhood conduct disorder, which he defined as a pattern of irresponsible behavior in which rights of other people violated. That condition is categorized by fifteen criteria, of which someone must meet at least three for diagnosis.
When the prosecution ran Johnson through the list of symptoms, there were only three criteria that Tate didn’t meet.
If a person is diagnosed with childhood conduct disorder, Johnson testified, it doesn't rule out other diagnoses like schizophrenia and bipolar, although Johnson found that Tate didn’t have either of those conditions at the time of the murder.
Unfortunately for Tate, being afflicted solely with childhood conduct disorder doesn't amount to an adequate diagnosis for a not-guilty by reason of insanity defense.
But when the defense finally got a chance to cross-examine Johnson at 4:30 p.m., they made it clear that contrary to what Johnson had said, if Tate is found not-guilty by reason of insanity, he will occupy a bed in the very hospital in Pueblo where he was evaluated, an already overcrowded institution where Tate will be ordered to stay until he is determined to no longer be a threat to society.
If that time ever comes.
-- Luke Turf