Testimony in the Menachem Stark, H”yd, murder trial concluded Wednesday, with the prosecution arguing that defendant Kendel Felix – who had previously confessed to involvement in the kidnapping and robbery scheme that resulted in Stark’s death – was not vulnerable to police coercion or likely to give a false confession.
Felix is the only man who has thus far been charged in Stark’s death, which occurred on the night of Jan. 2-3, 2014.
Felix gave investigators a videotaped confession several hours after he was brought in for questioning in April of that year. Felix’s attorney, Jack Goldberg, has centered his defense on the argument that a brain injury Felix suffered in 2010, as well as his personality and limited intelligence, caused him to give a false confession after hours of police interrogation. Goldberg says that Felix merely repeated back to investigators what they had already told him about the crime, in the belief that he would not be able to go home until doing so.
On Tuesday, forensic psychologist Dr. Marc Janoson testified as an expert witness for the defense. Janoson said that the tests he gave Felix show that the defendant is vulnerable to coercion and has the personality of someone likely to give a false confession. However, the result of his tests shows that Felix is not more suggestible than the average person.
The only other defense witness Tuesday was Felix’s mother, who testified about the brain injuries her son suffered six years ago.
On Wednesday, prosecutors Howard Jackson and Emily Dean presented their only rebuttal witness: Dr. Kathy Yates, a psychologist and neuropsychologist, who argued with Janoson’s conclusion about Felix’s susceptibility to police coercion and likelihood to give a false confession.
According to Yates, she began her test with Felix by having him read a statement that said he understood that his interactions with her would not be confidential. Yates said that when reading the statement, Felix read fluently and understood everything therein.
“I was surprised,” said Yates on the witness stand. “This was not what I expected from someone who would be brain-damaged.”
Yates said that Felix was “very intact with respect to” the three types of memory: current, short-term and remote.
According to Yates, during her discussions with Felix he was pretending to have memory issues. (This is significant because during his videotaped confession, Felix frequently said that he could not remember things about the night of Menachem Stark’s death. He said it so often that Kenneth Taub of the Brooklyn DA’s office, who took Felix’s confession, asked him during the interrogation whether something had happened to affect Felix’s memory, and Felix responded that the motorcycle accident and resultant brain injury had caused him memory issues.)
According to Yates, Felix told her that he has no memory of his childhood schooling.
But Yates said on the witness stand that while people who go through traumatic events may experience amnesia, it does not happen for such long periods of time, like the ten-year period of Felix’s schooling. Felix had also told Yates he does not know the charges against him, nor does he remember his confession; yet he recounted specific details about his arrest.
“That’s not the way memory impairment works,” said Yates on the witness stand.
Yates believes Felix was “intentionally withholding” – saying he remembered some things but not others.
As evidence of this, Yates recounted at least one interesting anecdote that she said occurred during her meeting with Felix: Among the things Felix told her he did not know was how long it had been since he was arrested. Yet at lunchtime during their meeting, Felix ordered a cheeseburger, and then exclaimed, “This is the best hamburger I have had in 21 months!”
Felix was arrested 21 ½ months before. On the night of his arrest, several hours prior his confession, he told detectives he was hungry, and they bought him a cheeseburger from McDonalds.
Felix suffered two brain contusions in his 2010 accident, but Yates said that CT scans taken within four days after Felix’s injuries “were completely normal,” and that there was “no indication of any continued brain trauma.”
“There would be cognitive issues,” said Yates, “but the brain is pretty ‘plastic,’” which means that “people recover.”
Yates says that the physical difficulties that Felix experienced after his accident were physical and not neurological.
Yates argues that the main test Janoson initially gave Felix – a highly respected test called the MMPI 2 – is for people with a history of psychiatric issues, which Felix does not have. Citing forensic psychology expert Dr. Bruce Frumkin, Yates argued that to understand personality traits, one has to use personality tests, and that the results of those tests show that “Felix is more independent than compliant … more assertive than passive … and more bold than shy or withdrawn.”
“This is a man who is not impulsive,” she said.
In regard to the risk of false confession, she said, the issue to look for with regard to this case is whether Felix would qualify for being the type of person who would make a “coerced compliant” confession, meaning that he knows he is innocent but confesses for short-term gain, e.g., to get out of the police station.
But the tests show that Felix is not suggestible, acquiescent or compliant, argued Yates.
“He does not have the personality characteristics consistent with someone who makes [a] coerced compliant confession.”
Yates agrees that Felix is of below-average intelligence: Her IQ test gave him a score of 90, and Janoson’s gave a score of 87. (Both agreed that the 3-point margin was not a significant difference.)
During the expert testimony, Dr. Bruce Frumkin’s name came up in a more explosive way: When detailing his credentials on Tuesday, Janoson had said that though his formal training was in “school psychology,” later in life he decided to turn to forensic psychology, and in that field he had been supervised by Frumkin.
But Jackson, the prosecutor, produced an email from Frumkin to Janoson asking that Janoson stop using Frumkin’s name in court; that the supervision Frumkin had done for Janoson “does not constitute a training program or supervisory relationship,” and that “your expertise must stand on its own.”
On Wednesday, during the cross-examination of Yates, defense attorney Goldberg pointed out that Frumkin’s email was sent to Janoson only after Yates had contacted Frumkin, and that was after Janoson had testifed at a pretrial hearing in this case. Furthermore, Goldberg pointed out, Yates has been on opposing sides from Janoson in several cases in the past – implying that her informing Frumkin that Janoson was using Frumkin’s name was part of past personal issues Yates had with Janoson.
Both sides have rested their cases and on Thursday will present their closing arguments, after which Justice Alexander Jeong will charge the jury.
Felix faces four counts related to the attempted robbery, kidnapping and murder of Stark. If convicted, he faces a maximum of 25 years to life in prison.