07 November 2003

Imagine the following: you have spent months - maybe years - preparing to defend a client accused of murder. Your defense is based on mental defect; a well-respected psychiatrist has reviewed all the client's prior medical records, interviewed him a number of times and is going to testify in a Sacramento courtroom that your client has such serious mental problems that he cannot be held responsible for his actions. Then, on the East Coast 9-11 occurs and on the West Coast your psychiatrist reacts like this:
[T]he most novel response [to 9-11] came in a fax sent within hours after the attacks by a psychiatrist ... by the name of S. Miles Estner. He was under subpoena to testify in a murder case as a defense witness.

The defendant, Jeffrey Kiehm, a twenty-year-old man with a history of mental instability [killed his drug dealer to see if he could kill someone in a planned bank robbery].

"I cannot and will not be available to this court in the matter of Jeffrey Kiehn for a period of at least several weeks," Estner said in a fax sent to Judge Jimmy Long within hours of the September 11 attacks. "It goes almost without saying that we are in a National Crisis and that my family and friends on the East Coast look to me for guidance and need me to be there right now.

"I was born and raised in Pittsburg, Pennsylvania, where my elderly father still resides, alone, a handicapped widower, and where I attended Medical School. As you must know, one of the terrorist plane crashes occurred nearby. He needs my help more than any criminal defendant or criminal defense attorney, despite their interests.

"In addition a substantial portion of my medical education and training were in New York City and Washington, D.C., where I also have family and friends to whom I must and will attend.

"In the hopes that you will understand my predicament, I hope that the Kiehm trial can be delayed or - retried, and, frankly, [the defense attorney's] unprofessional and illegal attempts to compel my appearance, despite my personal tragedies, have soured me on this matter altogether."

"Furthermore, it seems clear that there will be no air traffic to allow my travel from this distant location. I am not sure the roads leading to Sacramento from [San Luis Obispo] are accessible.

"I apologize for any inconvenience to the Court, the Jury, or the Defendant, with his right to speedy trial. As for [the defense lawyer] he has been so unsympathetic to my predicament that I plan and hope to have no further dealings with him.

"Thank you in advance for your appreciation of my predicament and conflicts in these regards. I hope that Justice will be served and apologize for my inability to participate in it at this time."
Of course, the defense attorney tried to salvage this disaster but . . .
"I was informed by my office that Dr. Estner was refusing to appear in court because of fear that the courthouse would be the target of terrorists," [the defense attorney] said in his own fax to the judge and prosecutor. "When I learned that, I requested that my partner, Amy Morton, call Dr. Estner and explain to him that he had to be in court.

"Dr. Estner told her that he would not appear in court and he repeated over and over, 'It's not happening.' When Ms. Morton asked him why, he said he wouldn't travel until things were settled down. He was described as whispering as he told her roads were closed and 'it's not happening.' In spite of telling him how important his testimony would be, he continued [about] refusing to appear and he sounded extremely distressed."

[The attorney] told the judge he then called Dr. Estner himself on his cell phone and at his home and got the following message from the doctor's message service: "Hello, it's Dr. Estner. It's approximately eight A.M. Tuesday, September eleventh. I believe the country is in a state of crisis. I will not be receiving or returning calls until the matters have been clarified. Thank you so much. Bye-bye."
Not too surprisingly, the judge allowed the Defense a mistrial and let it replace this nut case.

From "The Prosecutors."

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