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Note-Altering May Cost Menendez Psychiatrist

TIMES STAFF WRITERS

Not one to seek refuge in clunky medical jargon, psychiatrist William Vicary has always talked of his patients in the most evocative way.

He called a convicted killer “a very sick lady with one foot on a banana peel and the other in the gas chamber.” He described a teenage murder suspect as “an accident waiting to happen.” He deemed Erik Menendez “so sick it was almost time to take him upstairs and put him in the rubber room.”

Wrapped in language jurors can understand, Vicary’s psychiatric evaluations help determine peoples’ fates: whether a convict deserves the death penalty or life behind bars; whether a teenager should be judged as a juvenile or an adult; whether a killer is insane or competent to stand trial.

Vicary has made a living making these kinds of judgments--most recently in the Menendez brothers’ murder trial, where he caused an uproar this week by admitting that he altered notes of sessions with Erik. The Menendez trial was just one of hundreds of Los Angeles County murder cases he has testified in, either for the defense, the prosecution, or as a psychiatric evaluator for the court itself.

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It’s a profitable job. He earned $136,000 last year just from taxpayer-funded assignments in Los Angeles County Superior Court, and has received $31,000 for his work on the Menendez case over the past six years.

While he was at it, he earned considerable respect.

But both the money and the respect are now in jeopardy.

Vicary’s bombshell statement last week that he doctored notes about counseling sessions with Erik Menendez under pressure from defense lawyer Leslie Abramson stunned court watchers, horrified ethics experts and embarrassed other forensic psychiatrists.

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Vicary could face discipline ranging from a reprimand to loss of his professional license. He could also find himself expelled from the panel of psychiatrists eligible to work as court evaluators. Even if he escapes disciplinary action, he could be shut out of work for the court because of the scandal.

Dr. Daniel Borenstein, a Brentwood psychiatrist and member of the American Psychiatric Assn.'s ethics board, said he expects his agency to take action against Vicary. “Any time we feel a doctor has violated the canons of ethics, as I believe will be the case here, we don’t wait for some outside agency to initiate a complaint,” he said.

Vicary has admitted under oath that he erred.

He has testified that he now regrets deleting two dozen segments of his notes at Abramson’s request. In an interview with The Times on Wednesday, however, he insisted that his solid reputation would carry him through this ethical lapse. “I’ll be just fine,” he said. “I honestly believe that once this furor has died down, people will take a hard look at it and realize they have made a mountain out of a molehill. “

For all his confidence, though, Vicary knows how bad his behavior looks. After all, he has written volumes on ethical courtroom testimony.

In articles and videos, and in classrooms at USC, Vicary teaches other psychiatrists how to testify in court. He emphasizes two lessons above all: Be objective. And be honest. As he wrote in a pamphlet on courtroom testimony, speaking from the witness stand “in some regards . . . is the acid test of the competency of a forensic expert.” As he said in the interview, “Your credibility is crucial. Without your credibility, you have no value.”

Pondering his own value after the Menendez disclosures, Vicary paused, then answered lightly: “That remans to be seen.”

“That’s kind of the irony of this situation,” he added. “I teach doctors always to be honest and ethical, and here I am in this tremendously big case, involved in a conflict.”

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Both the California Medical Board, which licenses psychiatrists, and the American Psychiatric Assn., which Vicary belongs to, could discipline him for his admitted error.

David Thornton, a supervising investigator with the California Medical Board, said it is a misdemeanor criminal offense in California to fraudulently alter medical records--including notes from a psychiatric session. The misdemeanor is punishable by a $1,000 fine. But the board can also take far more serious action, from putting a doctor on probation to revoking his license.

The psychiatric association, a trade group, could expel or suspend Vicary. It could also add his name to a national database of physicians who have been disciplined by regulatory agencies or lost malpractice cases. Once listed in the database, a physician can have trouble not only getting clients, but also signing up for malpractice insurance or government contracts under Medicare or Medicaid.

Vicary said he is ready to take whatever punishment comes his way. He also repeated his willingness to answer any questions about his action as soon as the judge lifts a gag order that applies to all participants in the Menendez case.

But no explanation can satisfy some of his colleagues.

“The honesty of the profession requires that you do not alter notes,” said Dr. Richard D. Milone, who serves on the New York State Board for Professional Medical Conduct. “It’s a character defect to change or alter notes. It is a deception.”

In admitting to that deception, Vicary has testified with the same firm, straight-arrow tone that makes him so winning as an expert witness. He did not squirm. He did not fidget. He did remove his glasses to mop his brow--once. But mostly, he sat still and straight, looking firmly into the eyes of his questioner and answering with his trademark bluntness.

“Do you concede today that your actions were wrong?” prosecutor David Conn asked.

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“Yes,” Vicary responded.

A longtime member of the court’s panel of psychiatric evaluators, Vicary has won praise for his frank, direct demeanor. He once testified that Erik Menendez was “a basket case” and another time described him as “a pathetic, wimpy, hopeless mess.” In fact, he says he refuses to shade his testimony to make one side or the other look good. Several people who have worked with Vicary commend him for such honesty.

“Some of these psychiatrists are just the most obscene whores you can imagine. He’s just the opposite --refreshing, professionally candid,” one Superior Court judge said. “I consider him top flight. . . . He’s always been very reliable and as evenhanded as you can get.”

Los Angeles judges who need a physician to determine a defendant’s mental state can draw whomever they want from a list of about 70 eligible psychiatrists and psychologists.

Because Vicary would be vulnerable to a blistering cross-examination from any attorney who disagreed with his conclusions, judges may now be reluctant to hire him.

“An individual judge might say, ‘This is just going to be opening up a can of worms every time he comes into the courtroom. . . . I want to appoint a psychiatrist whose report will stand on its own merit,’ ” said Superior Court Judge Michael A. Cowell.

Cowell, who heads the committee of judges that evaluates court-hired psychiatrists twice a year, emphasized that he was speaking in general about doctors with spotty records, not specifically about Vicary.

A graduate of Harvard Law School as well as USC Medical School, Vicary said he has always wanted to do court-related psychiatry, relishing the challenge of working with some of society’s most wretched and ill patients. He estimated that his court fees--which have tallied at least $42,650 so far this year--account for one-third to one-half of his income.

As a court-appointed psychiatrist, he earns $250 for the initial evaluation of a defendant, plus $400 for each day of testimony. In death penalty cases, he can request more money for additional sessions but doesn’t always receive it. For the past two years, he has not earned a penny from the Menendez case, Vicary said. The court simply does not have enough money to pay witnesses, even in death penalty cases, for every hour they spend with defendants. And the Menendez estate has run out of money, shifting the burden of the brothers’ defense to taxpayers.

In his private work for defense attorneys and prosecutors, Vicary says, he earns much more than he can in court: up to $300 an hour.

But he insists that money “has really not ever been an issue for me.” If he wanted riches, Vicary said, “it would be much easier for me to sit in Beverly Hills and treat neurotic housewives for $350 an hour.”

He points out that he has volunteered every Friday night for the last 25 years at the Hollywood-Sunset Free Clinic, where he treats everything from runny noses to sexually transmitted diseases.

Vicary contends that the passages he deleted, while extensive, did not affect either his clinical evaluation of Erik Menendez or the facts presented to jurors. Even Erik’s statements that he “couldn’t wait” to kill his parents a week before the murders and that Lyle’s incestuous relationship with their mother was all “in his head” were not relevant, Vicary said.

Regardless of how Vicary assessed the notes’ importance, however, fellow psychiatrists said he absolutely should not have deleted them. One said she would resign from a case rather than give in to a lawyer’s pressure.

“The medical societies tell people, the malpractice insurance companies tell people, the lawyers tell people: The worst thing you can do is change the records,” said Dr. Benjamin Shwachman, a Covina anesthesiologist who also has a law degree. “You are dead in the water if the record is altered.”

Times staff writers Alan Abrahamson and Ann W. O’Neill contributed to this story.

* THE OTHER SIDE: The brothers of Kitty Menendez testify for prosecution. B1


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