Author Archives: Colin Holloway, Attorney at Law

About Colin Holloway, Attorney at Law

LinkedIn Colin Holloway is an attorney operating in the Washington DC area. He is a graduate of Carnegie Mellon University and Emory University School of law, and has practice experience in criminal defense, personal injury litigation, mediation, and employment law.

Slender Man

Psychology Experts Convince Jurors that Slender Man Defendant was Not Criminally Responsible due to Mental Illness

A Wisconsin jury has determined that a teenage girl accused of attempted murder for her role in an attack on a classmate  was not mentally competent to have fully understood the consequences of her actions. The attack was motivated by a desire to appease the Slender Man. The jury’s decision was heavily influenced by three psychology expert witnesses. As a result of the verdict, the girl will not face prison time.

Teenage Girls Charged with Attempted Murder in Slender Man Stabbing

In 2014, Anissa Weier and Morgan Geyser, both 12 at the time, conspired during a sleepover to fatally stab their sixth grade classmate, Payton Luetner,who was also 12. In the late morning after the sleepover, Weier and Geyser lured Luetner into the woods where Geyser stabbed her 19 times before leaving her to die. Luetner survived by crawling to a nearby road where she was noticed by a passing cyclist, but the attack left her severely scarred and near death. Weier and Geyser were discovered by police soon after the attack as the two girls were walking down a major Wisconsin highway.

During police interrogation, Weier and Geyser admitted to the stabbing, and claimed that they attacked Luetner in order to appease the Slender Man, a mythical figure created on an online forum that quickly became an Internet bogeyman through crowd-sourced additions to the story. According to the fabricated legend, which began sometime in 2009, the Slender Man, a tall, faceless figure, lures children to a paradise reality where they are free of the pain and suffering of this world. In exchange, the Slender Man demands blood sacrifices from its proxies in order to ensure their safety and that of their families. Weier and Geyser were picked up by police walking towards what they believed to be the Slender Man’s home in a wooded area of Wisconsin.

After the arrest and subsequent investigation, both girls were deemed eligible to be tried as adults, and faced several decades in prison for attempted murder. Weier, who was sold on the concept of the Slender Man by Geyser, has admitted to police that she went along with the attack because she was convinced by Geyser that her family would be in danger from the Slender Man if she did not participate. Before the start of Weier’s criminal trial, she agreed to plead guilty to attempted second-degree intentional homicide, with a recommendation from prosecutors that she serve a 10-year sentence if she was found to be criminally responsible.

Psychology Experts Testify in Insanity Defense of Slender Man Defendant

To determine whether or not Weier could be found criminal responsible, prosecutors and defense attorneys presented evidence to a jury about her mental state. Defense attorneys for Weier relied on testimony from three psychology expert witnesses to argue that the defendant, who was 12 at the time of the attack and has shown symptoms of mental illness, did not have the capacity to know her actions were wrong or conform her behavior to the law. Two of the psychologists were appointed by the trial court, while the third was hired by Weier to evaluate her.

Melissa Westendorf, a court-appointed psychology expert witness, was the first to testify regarding Weier’s mental condition at the time of the attack on Luetner. According to Westendorf, the defendant could not distinguish between the fake stories of the Slender Man and reality, which enabled her to be misled by Geyser and engage in the assault. Westendorf told the court that it was not uncommon for people who suffer delusions to keep them hidden from friends and family members, and testified that it was not impossible for Weier to believe in the Slender Man without talking about him to others beside Geyser. Gregory Van Rybroek, the second court appointed psychology expert, echoed Westendorf’s testimony, and told jurors that it was possible Weier and Geyser experienced a shared delusion about the Slender Man which blocked their ability to conceptualize the consequences of their behavior.

Finally, Michael Caldwell, a staff psychologist at the University of Wisconsin who was hired by the Weier family to evaluate Anissa, took the stand and testified that he believes the defendant suffered from persistent depressive disorder. He concurred with Westendorf and Van Rybroek that the combined effect of Geyser’s friendship and the Internet’s ability to make a myth appear to be real drove Weier to commit the crime. Caldwell told jurors that the website Creepypasta, where the the origins of the Slender Man myth began, was “very convincing,” especially to an impressionable girl of 12 whose brain had not fully developed. Although all experts agreed that shared delusions are rare, they argued that Weier showed symptoms consistent with delusional behavior which impaired her concept of right and wrong.

Jurors Find Support for Insanity Defense in Slender Man Trial

Testimony by the three psychology experts in favor of Anissa Weier proved sufficient for a finding that the defendant was not criminally responsible. As a result, Weier will likely spend up to three years in a mental hospital receiving treatment for her disorder before she can be eligible for release. Geyser, who has been diagnosed with early onset schizophrenia, faces trial next month. She will also likely rely on psychology experts to support an insanity defense.

Photo Credit: By LuxAmber (Own work) [CC BY-SA 4.0], via Wikimedia Commons

Taylor Swift

Federal Judge Limits Testimony from Taylor Swift’s Proposed Gender Studies Expert Witness

A judge has limited the proposed testimony of an expert witness called by Taylor Swift in her sexual assault legal action against a former radio DJ. Swift called a professor of gender studies to testify about the profile of men who commit sexual assault, however, the federal trial judge ruled that this type of expert testimony would not be permitted in the litigation.

Taylor Swift Proposes Gender Studies Expert

David Mueller, a former radio host in Denver, was accused by Taylor Swift of inappropriately reaching his hand underneath her skirt and groping her during a backstage meet-and-greet at a June, 2013 concert event. Mueller, who was fired by his radio station two days after the alleged groping incident, has maintained that he did not grab the pop-star during a photo opportunity, and filed a lawsuit against her for slander and making false claims which cost him his job and prevented him from working in his profession. Swift claims that it was Mueller who touched her inappropriately during the event, and countersued for claims of sexual assault and battery.

As we covered here, Taylor proposed to call as an expert witness Dr. Lorraine Bayard de Volo, who is a Women and Gender Studies professor at the University of Colorado-Boulder. During the pre-trial process, Dr. Bayard de Volo produced for Swift an expert witness report which, among other things, outlined how Mueller fit the profile of men who commit acts of sexual assault against women. According to the report, Mueller had reason to perceive threats to his job status due to tension with his boss, his status as a radio personality due to lack of respect from Swift and her team, and his masculine status due to Swift being excited to meet his girlfriend but not him.

Dr. Bayard de Volo summarized that Mueller’s perceived threats to things he felt were important map onto the profile of sexual assault perpetrators, who sometimes commit violations in order to restore loss of status. Mueller’s defense team objected to the use of Dr. Bayard de Volo during trial, and last week the trial judge limited what Swift’s expert could testify about.

Taylor Swift’s Gender Studies Expert Limited during Trial

After reviewing the proposed expert testimony and Dr. Bayard de Volo’s qualifications, federal district court Judge William Martinez limited what could be said at trial. In his ruling, Judge Martinez focused on two primary issues when restricting what Bayard de Volo could speak about during trial. First, the judge pointed out that the proposed expert testimony would do very little to help the jurors determine which party is telling the truth. Dr. Bayard de Volo was not present at the time, has not spoken to Mueller, and could not offer a significant piece of evidence which would assist the jurors to resolve the dispute at hand.

Second, and more importantly, Judge Martinez found that any probative value of Bayard de Volo’s expert testimony would be substantially outweighed by its prejudicial impact on jurors. Judge Martinez wrote, “Dr. Bayard de Volo’s opinion — in effect that she believes Plaintiff felt threatened and that committing an act of assault because of that perception would be consistent with broader patterns of assault — creates a very substantial risk of prejudice against Plaintiff and of confusing the issues at trial.” Further, the judge stated that Bayard de Volo’s opinion on Mueller’s pattern of behavior would “lead the trial astray from its central purpose,” by exposing jurors to character issues which, while not necessarily helpful to the task of determining what happened, may lead some members of the jury to rule against Mueller simply because they think he is a bad guy.

Finding Dr. Bayard de Volo’s proposed expert testimony which matched Mueller to a profile of a sexual assault perpetrator to be inadmissible, Judge Martinez limited what the expert could say during trial. Bayard de Volo will be allowed to testify about how alleged victims of sexual assault delay reporting the incident, but she will not be able to talk about Mueller’s personal character or his perceived threats.

Ruling on Expert Speaks to Problems with Profile Evidence

Judge Martinez’s decision to limit Taylor Swifts’ proposed expert testimony reflects a broader reluctance to include any type of profile presented by an expert witness. The problem with profile evidence proffered by an expert witness is that it dilutes the factual issues which are supposed to determine the trial, and instead puts jurors into a position to make assumptions of guilt or innocence based on patterns of behavior. Further, these patterns of behavior are not themselves inherently criminal. For example, many men can experience threats to masculinity and job status, but most of them do not commit sexual assault.

When asking jurors to make decisions based on whether or not an accused party fits a profile, courts are exposing the trial process to conjecture and expert witness opinion – neither of which are the basis for juror evaluations. While some courts have allowed expert witnesses to testify that a particular defendant could engage in unlawful activity, the general rule is to limit or exclude profile evidence, even if it may have some relevance. Typically any relevant probative value of profile character evidence is substantially outweighed by its prejudicial impact on jurors.

Photo Credit: Taylor Swift, Eva Rinaldi, Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0).

Medical Expert Witness Testifies in Death Penalty Lawsuit against Arizona

A medical expert has testified for the plaintiffs in a lawsuit filed by news organizations which seeks more information about the administration of the death penalty in the state of Arizona. The doctor took the stand early in the proceedings to testify that without full disclosure about the lethal injection process, medical professionals are unable to evaluate so-called botched executions to determine if the condemned suffered. The lawsuit challenges Arizona law which limits access to information about the death penalty procedure.

News Organizations File Lawsuit against Arizona about Death Penalty Disclosure

The Associated Press leads a lawsuit filed by several news organizations against Arizona which alleges the state’s current practice of limiting information about the administration of the death penalty unlawfully denies the public an opportunity to evaluate fairly whether or not the procedure is carried out by qualified professionals using a drug cocktail which does not cause extreme pain. Current Arizona law strictly prohibits the dissemination of information which would identify persons serving on an execution team, and state officials have applied this confidentially protection to suppliers of the drug. The plaintiff news organizations argue that this level of confidentiality allows Arizona to carry out the death penalty without accountability for its use of potentially painful drug cocktails or the qualifications of the execution team.

The lawsuit was filed after the 2014 execution of Joseph Rudolph Wood, which gained national attention as a potentially botched execution due to irregularities during the procedure. Wood, who was given 15 doses of the two-drug cocktail Arizona employs during executions, did not die until two hours into the process, prompting many to express concern about whether or not the penalty is humane. The lawsuit against Arizona claims that without additional information about the execution team or the supplier of the drugs, the public will not be able to evaluate the procedure properly. Arizona’s attorneys have responded that confidentiality is necessary for the lethal injection team to carry out the key duties of their jobs.

Plaintiffs Call Medical Expert in Arizona Death Penalty Information Lawsuit

Attorneys representing the news organizations challenging Arizona’s death penalty confidentiality rules began their case with a medical expert witness called to testify about the inadequacy of information regarding administration of the state’s executions. Dr. David Waisal, an expert in anesthesia working at the Harvard Medical School, testified regarding the two-drug cocktail that Arizona uses in its lethal injection procedures. According to Dr. Waisal, members of the public — including the news reporting on the executions – are not provided with access to the information that is necessary to determine if the executions are being carried out properly.

Dr. Waisal, who is familiar with the chemical composition of anesthetics, told the court that Arizona’s confidentiality law prevents objective review of the death penalty cocktail. Further, Waisal testified that information that the state does provide — which is the type of drug — is not sufficient to analyze the chemical composition. According to Dr. Waisal, this detailed level of analysis is required in order to determine whether or not the drug cocktail is performing as expected and not causing pain and suffering during the execution process. The plaintiffs offered Waisal’s expert testimony to support their argument that the public has a right to understand the details of Arizona’s execution procedures in order to make a decision about continued support, but under the current legal structure the available information to make such a decision is not sufficient.

Arizona Defends Confidentiality of Death Penalty Information

Attorneys for Arizona have argued that confidentiality of drug suppliers and death penalty officials are necessary in order to the process to function as intended. Arizona prison officials have maintained that should the identity of the execution team be revealed, public backlash against them for taking part in a controversial practice could compromise their ability to perform key duties during an execution. It is not hard to imagine that drug suppliers could face similar public backlash should their identity be revealed, which could in turn result in companies refusing to sell the necessary drugs to Arizona’s prisons.

While the motives for the lawsuit compelling Arizona to reveal information about the drug supplier and the execution team are not directly anti-death penalty, the possible consequence that the state’s use of capital punishment could suffer is likely intended. Opponents of the use of the death penalty have rallied around several questionable executions over the last few years. Dr. Waisal testified about concerns over drug cocktails for parties attempting to halt Arkansas’s recent controversial attempt to execute eight inmates in two weeks. Opponents argue that litigation compelling open reporting of death penalty proceedings would increase scrutiny on capital punishment. Late last year, the news outlets earned an early victory in the case when a judge ordered a witness present for the entirety of executions in Arizona, and as the litigation continues the plaintiffs will push hard for complete transparency.

Brain Development Expert Testifies in Death Penalty Trial of Kentucky Men

Two suspects in the murder of a University of Kentucky student have presented expert witness testimony in an effort to avoid the possibility of a death sentence. Attorneys representing the young men have called a trained neuro-psychologist to testify in support of a motion which argues the defendants’ brains were not fully developed at the time of the murder. The same tactic was famously used unsuccessfully in the Boston Marathon bomber trial of Dzhokhar Tsarnaev, who was sentenced to death in June of 2015 for his role in the attack.

Kentucky Men Face Murder Charges in Student’s Death

Efrain Diaz and Justin Smith are set to begin trial for the murder of 22-year-old University of Kentucky Student Jonathan Krueger during a robbery in 2015. Diaz, Smith, and another man allegedly attempted to rob Krueger before the incident turned fatal when shots were fired after the victim and a friend resisted. Police claim that all three young men have ties to a street gang known as the Almighty Ambrose, and claim that they were all armed at the time of the robbery. Although statements made to the policy following their arrest have been ruled inadmissible because the officers violated the suspect’s rights to remain silent and request an attorney, prosecutors believe they have enough evidence to pursue murder charges.

The third defendant, who was 17 at the time of the murder, is not eligible to receive the death penalty due to his age, but Diaz (20 at the time of the killing) and Smith (18 at the time) can both be charged with capital murder and be sentenced to death should they be found guilty. In an effort to avoid the death penalty, attorneys representing the two capital defendants have argued that their brains were not properly developed at the time of the killing. To bolster their argument, the defense has called on a psychology expert in brain development.

Brain Development Psychologist Testifies in Kentucky Trial

During a pretrial motion hearing requesting a ruling that the defendants are ineligible for the death penalty due to brain underdevelopment, attorneys for Diaz and Smith called on Laurence Steinberg, a psychologist at Temple University who specializes in brain development. Dr. Steinberg testified only in front of the judge, who will make the final determination of whether or not Diaz and Smith are sufficiently competent to be tried in a capital case. According to Kentucky law, anyone who is older than 17 at the time they commit a crime can face capital charges, however, attorneys for Diaz and Smith argue that the advances in brain development psychology have shown that the judge should consider more than simply the age of the defendants.

Dr. Steinberg told the court that the brains of 18 to 20-year-olds are typically closer in developmental maturity to teenagers than to adults, but conceded that he was speaking in generalities because there is not a reliable way to measure individual brain maturity levels. Still, Steinberg testified that over the last decade, advances in brain research have indicated that the type of maturation previously assumed to occur between the ages of 10 and 18 actually continues well into the early-to-mid-20s, which suggests that assumptions that the law carries about the mental competence of 18-to-20-year-olds is based on a flawed understanding of human development.

Steinberg explained that the type of impetuous decision-making heavily influenced by peer pressure and other negative outside influences which we typically associate with teenagers is, in fact, highly influential in brains of 20-year-olds as well. Although the legal system, led by a 2005 Supreme Court decision banning the death penalty on anyone younger than 18, has consistently drawn a bright line at 18, Steinberg noted that research suggests this conclusion is incongruent with biological reality. During a cross-examination period, the lead prosecutor in the case had Steinberg admit that 18-to-20-year-olds do know the difference between right and wrong, and that he was personally against the death penalty.

Judicial Ruling Could Challenge Kentucky Death Penalty Statute

After hearing Steinberg’s testimony and reviewing an expert witness report on brain development that he prepared for the court, the trial judge will determine if Diaz and Smith are ineligible for the death penalty despite being old enough at the time of the incident. Kentucky law, which is similar to other death penalty state laws, sets the capital sentence bar at 18, but legislators likely did so without substantial contribution from the brain development science community. Should the trial judge agree with defense attorneys and Dr. Steinberg, he will upset the apple cart and open the door for an exception to Kentucky’s law which was not included by the state legislature.

Ultimately, it is likely a tough battle for the defendants to fight as courts have shown reluctance to turn to brain development science for information to change assumptions made by the criminal justice system. Dzhokhar Tsarnaev, convicted for his role in the Boston Marathon attacks, attempted to use a similar tactic to avoid the death penalty in federal court two years ago, but was unsuccessful because jurors ultimately found that the ability to understand right from wrong was sufficient to justify a capital sentence. This underlying argument, coupled with historic resistance by judges to defy death penalty parameters set in law, suggests it is improbable Diaz and Smith will be found ineligible for the death penalty, but capital sentencing law in Kentucky and across the country could face a stiff challenge should the judge side with the defense.


Professional Cycling

Parties Argue over Experts in Government Fraud Case against Lance Armstrong

A multi-million dollar fraud lawsuit filed by the US government against former professional cyclist Lance Armstrong will go to trial in November of this year, but the sides are engaging in pretrial skirmishes over the admissibility of expert witnesses.

Armstrong, who famously fell from grace after admitting he used PEDs to achieve cycling greatness, has been sued by the US government to recover sponsorship money paid to Armstrong and his team by the US Postal Service (USPS). Both sides have called on expert witnesses to debate the value the USPS received from its sponsorship in order to help determine if the government was victim of a fraud perpetrated by Armstrong.

US Government Pursues Fraud Lawsuit against Lance Armstrong

In 2010, former Armstrong teammate Floyd Landis initiated a federal whistleblower case under the False Claims Act by asserting that the 7-time Tour de France champion’s deception about PED use constituted a fraud against the US government, which sponsored Armstrong’s team through the US Postal Service from 2000 – 2004.

Armstrong admitted to doping during his cycling career after a 2012 investigation by the US Anti-Doping Agency resulted in him being stripped of his Tour de France titles and banned from the sport. According to the government’s lawsuit, Armstrong’s PED use invalidated the USPS’s sponsorship contract. The agreement between the USPS and Armstrong paid $32.2 million during the life of the sponsorship, and federal attorneys argue that the cyclist violated the terms of the deal by cheating and lying, which in turn made the sponsorship worthless.

For his part, Armstrong and his attorneys have argued that during the life of the sponsorship agreement the USPS did not suffer any harm, but instead received a healthy financial profit as a result of the relationship. Suspicion of Armstrong’s doping did not reach peak levels until several years after the deal ended, and the former cyclist argues that the government received full value for its sponsorship during the period when he was winning multiple Tour de France titles. Both sides have attempted to prove the value of the sponsorship agreement with economic expert witnesses which the presiding judge will assess during the months preceding trial.

Federal Government Presents Experts on Sponsorship Value

US District Judge Christopher Cooper has allowed the government to pursue its lawsuit against Lance Armstrong by presenting “admissible evidence regarding the negative publicity the Postal Service received following the disclosure of Armstrong’s PED use,” allowing a jury to determine if the USPS suffered actual damages, and if so, what amount.

In an effort to prove the diminished value of its sponsorship agreement, the government proposed expert witness Larry Gerbrandt, who has submitted a report identifying nearly 1.5 billion online media impressions arising from Armstrong’s doping, with an additional 154 billion impressions stemming from the media coverage. Gerbrandt’s expert report concludes that these impressions highlight the negative publicity surrounding Armstrong, and significantly reduced the value of the sponsorship. Armstrong’s attorneys have submitted a motion to bar Gerbrandt’s testimony because it offers no concrete evidence of diminished value, and instead asks the jury to speculate too much on the central issue of the lawsuit.

The government has also submitted expert Jonathan Walker, who has evaluated the sponsorship agreement and concluded that it was worth zero dollars because the deal would not have happened had the government known about the doping. Walker’s expert testimony has been challenged by Armstrong’s team who have argued that a prior ruling in the case already dismissed claims by the government based on the argument that it never would have signed the agreement had it known about the doping.

Lance Armstrong Submits Expert Witnesses in Federal Fraud Lawsuit

Armstrong, who has maintained that the government received more than fair value for the USPS sponsorship, has submitted an expert witness to evaluate and estimate the value that the government earned from the deal. Douglas Kidder, an economics expert witness, conducted a valuation of the agreement and submitted a report which estimates the Postal Service received $257 million as a result of media exposure during the life of the sponsorship. According to Kidder, the government benefited financially from its relationship with Armstrong before revelations of doping became a serious public concern, and as such, the sponsorship was profitable.

Government attorneys have argued that Kidder is not competent to testify about media-based value of the sponsorship agreement, and as such he should be barred from testifying. Judge Cooper will review all the motions and arguments regarding proposed expert testimony in the Lance Armstrong fraud case this summer, setting the stage for the trial in November. Should Armstrong be found liable for fraud so severe that it nullified the value of the sponsorship, he could be forced to pay the government $100 million — which is triple the value of the deal and the maximum penalty allowed under the False Claims Act. Even if Armstrong’s attorneys and experts prove that the government did not suffer economic damages, he could be subject to penalties of up to $451,000 if found liable for fraud.

Lipitor, drugs, white pills

Plaintiffs in Lipitor Lawsuit Appeal Dismissal of Expert Testimony to Federal 4th Circuit Appeals Court

A month after a multi-district class action lawsuit against Pfizer’s anti-depressant drug Zoloft was dismissed after a judge excluded the plaintiffs’ expert witnesses, a similar battle is being fought by plaintiffs seeking damages from Pfizer for alleged injuries caused by the company’s cholesterol drug, Lipitor. As was the case in the Zoloft trial, the current litigation focuses on standards of qualifications for experts, and could impact future mass-tort litigation against drug companies.

Lipitor Plaintiffs Petition Court for Expert Witnesses

Plaintiff attorneys representing a multi-district class action litigation made up of more than 3,100 lawsuits over Pfizer’s OTC cholesterol drug Lipitor are petitioning a federal court of appeals to overturn a lower court decision excluding expert witnesses.

According to the Lipitor plaintiff’s lead attorneys, a lower federal court judge erred in striking several expert witnesses who could have connected use of Lipitor with diabetes in female patients. The experts, one of whom was similarly dismissed in the Zoloft decision in June, relied on statistical analysis of available data on Lipitor use and diabetes diagnoses in order to advance the plaintiff’s argument that the cholesterol drug had serious health side effects.

Nicholas Jewell, a professor of biostatistics at the University of California – Berkeley who provided expert testimony in the Zoloft trial which arguably demonstrated a statistically significant link between Lipitor and diabetes, was dismissed due to methodology concerns. Just as with his testimony in the Zoloft trial, the federal judge had issues with Jewell’s methodology, citing concerns that the work was inconsistent in its statistical techniques.

Judge Richard Gergel also dismissed another plaintiff causation expert, Dr. Sonal Singh, who is an internist and associate professor at the University of Massachusetts Medical School. Gergel found Singh’s inability to show a statistically significant connection to diabetes when patients took doses of less than 80 milligrams to be fatal to his testimony, and thus ruled him ineligible.

The plaintiff’s appeal of Gergel’s expert witness orders argues that the two experts are not only qualified to testify, but that they used reliable statistical methodology in order to show a link between Lipitor and diabetes. Amicus briefs submitted by professors who are experts in statistical analysis have been submitted to the appeals court to aid the case for reversing Gergel’s decision and permitting causation testimony from Jewell and Singh.

Pfizer Supports Higher Standards for Expert Witnesses

At the other side of the litigation stands Pfizer, whose attorneys have responded to the appeal with the same arguments which were successful in the Zoloft litigation: that the plaintiff’s experts are not qualified, and judges should rely on heightened standards for expert witness qualification.

According to Pfizer’s legal team, judges under the Daubert standard must serve as strict gatekeepers of expert witnesses in order to keep so-called “junk science” out of the courtroom. According to the defense, plaintiffs in mass-tort drug cases must be required to show that expert witnesses use “an objective, principled basis” for their review of evidence, and absent that, the judge is “justified in concluding that [the experts] are engaged in something other than science.”

Pfizer maintains that the plaintiffs “failed to produce the required reliable expert evidence that Lipitor caused their alleged injuries,” and successfully argued to Judge Gergel that the statistical analysis presented by Jewell and Singh was insufficient in both methodology and conclusion.

On appeal, Pfizer will continue to push for a high standard of review for judges who operate as evidentiary gatekeepers under the Daubert approach — an argument which has worked for them throughout both the Zoloft and Lipitor litigation.   Should the Court of Appeals for the 4th Circuit agree with Pfizer and take the same approach as the 3rd Circuit did in the Zoloft litigation, thousands of Lipitor plaintiffs will have their cases dismissed before trial.

Lipitor Trial another Battle of Expert Witness Standards

As with the Zoloft case, the Lipitor litigation will represent another important and impactful legal skirmish over standards for expert witnesses. The Daubert standard of expert witness review asks judges to be gatekeepers of testimony, and typically provides them a great deal of decision-making latitude in the process. As a result, litigants will often push for a standard of review — either broad or strict — which supports their side, both of which have theoretical merit.

Higher standards for review of experts would allow judges to dismiss testimony if they are uncertain that the methodology is reliable or the expert is qualified, which protects the legal system from unscientific and unreliable methodology.

However, there are concerns that judges — who are commonly not well versed in statistics, science, or any other of a variety of fields that experts represent — can make critical errors by dismissing an expert based on a misunderstanding of the work which went into generating the proposed testimony.

The challenge of finding a balance between keeping bad science out and allowing good science in plays out regularly in courtrooms, with high profile litigation like the Lipitor and Zoloft cases serving as bellwethers for future mass-drug lawsuits.

A white cop

Police Use of Force Expert was Key in Acquittal of Officer Charged in Philando Castile Shooting

Former Minnesota police officer Jeronimo Yanez, who was acquitted of manslaughter charges in the shooting death of Philando Castile, relied on use of force expert testimony to justify to jurors his decision to use fatal force during the incident.

The case, which gained national attention as another divisive police shooting, will conclude without a successful prosecution, and serves as another example of the use of police force experts in criminal trials of officers accused of using excessive violence when apprehending suspects.

Minnesota Officer Acquitted in Philando Castile Shooting

On July 6, 2016 school cafeteria supervisor Philando Castile was shot to death by Minnesota police during a routine traffic stop, sparking outrage across the country over police use of force tactics. Following an investigation into the shooting, Officer Yanez, who fired the fatal shots, was arrested and charged with manslaughter for Castile’s death.

Prosecutors presented video evidence, which has since been released to the public, testimony from Castile’s girlfriend who was in the car next to him, and physical evidence to argue that Officer Yanez’s use of deadly force was unreasonable. According to the evidence, Castile informed Yanez that he had a legally-owned gun in the car with him, which caused the officer to draw his weapon and approach the car.

During a brief and confusing sequence, during which it appears Yanez commands, “Don’t pull it out” in reference to Castile’s weapon, Officer Yanez opened fire and killed Castile in front of his girlfriend.

Following the shooting incident, Officer Yanez was relieved from duty and formally charged with manslaughter for his role in the fatal incident. Prosecutors argued that officer Yanez used unreasonable and excessive force during the traffic stop, making the shooting illegal and not in the line of duty.

Defense attorneys for Yanez responded that Castile’s admission that he had a gun combined with rapid movements during a night-time traffic stop gave the officer reason to believe that his life was in danger, which justified the police shooting. In an effort to bolster the argument, defense attorneys called a use of force expert witness.

Police Use of Force Experts Key in Castile Shooting Defense

In an effort to demonstrate that Officer Yanez acted reasonably in firing fatal shots at Philando Castile, defense attorneys called a use of force expert witness who told jurors that police officers in the situation Yanez found himself in are trained to react with force when a suspect may be reaching for a weapon.

Emanuel Kapelsohn, a police training expert witness, took the stand during the defense portion of the trial to tell jurors that Yanez acted appropriately because he had reason to believe that Castile was reaching for a weapon. Kapelsohn told jurors that it takes less time for a suspect to reach for a gun than it typically does officers to process a weapon and react, meaning that police who suspect a gun may be in danger if they wait to see it.

To emphasize his point, Kapelsohn conducted a demonstration in the courtroom during which he placed a replica of Castile’s handgun into a pocket in a pair of shorts identical to the ones Castile was wearing on the night of the shooting. The gun protruded from the short pockets, which, as Kapelsohn pointed out, allowed easy access.

Kapelsohn recorded the time it took him to remove the gun from the shorts, and showed jurors that it takes only about one-third of a second for the weapon to become a threat — less than the roughly half a second it takes for officers to respond to a threat. Kapelsohn concluded that police officers, while not perfect, are trained to respond to the presence of weapons with deadly force in order to ensure their own safety.

Use of Force Experts Matter in Police Shooting Cases

The value of Kapelsohn’s use of force testimony underscores the importance of use of force expert witnesses during police shooting trials. Although the issue sparks debates which touch on a variety of racial, social, and economic issues, the ultimate question before jurors is whether or not an officer who engaged in a police shooting acted reasonably considering the circumstances he or she was in at the time.

A use of force expert witness for the defense will often present information to the jurors about police training in weapon and threat identification, and help defense attorneys argue that an officer acted reasonably considering his or her perception of threat.

Bill Cosby

Bill Cosby Case Featured Prosecution Expert Witnesses

After nearly five full days of deliberations, jurors in the high profile sexual assault trial of comedian Bill Cosby were unable to reach a unanimous verdict before the judge reluctantly agreed with defense attorneys and declared a mistrial. The ruling comes as a disappointment to prosecutors who worked diligently to build a case against the aging star, including use of toxicology and psychology expert witnesses called to bolster testimony from alleged victims.

Cosby Victim Claim Sexual Assault while Drugged

Andrea Constand, the central accuser in Cosby’s sexual assault trial — and the only one who Cosby has been accused of assaulting in these criminal proceedings — testified during the first days of the trial that she met Cosby while she worked for the Temple University women’s basketball team. She told jurors that in 2004 Cosby invited her to his Philadelphia home, where he gave her three blue pills telling her that they were herbal and would help her.

After taking the pills, she claimed she felt nauseous and began to slur her words before having to lie down because she could not see very well. Constand then tearfully testified that after she was drugged, the entertainer forced her to lie down on a sofa, fondled her, and made her touch him sexually as well. She told jurors she was not a willing participant, and wanted the encounter to end but could not move because of the effect of drugs.

Cosby, who did not take the stand during his trial, has, through his attorneys, maintained that the encounter with Constand, like the encounters with other accusers, was consensual and that the pills she took were Benadryl, which would not have had the effect on her that she testified.

Defense attorneys for Cosby hammered Constand during cross-examination, focusing on inconsistencies in her story, her continued communication with Cosby after the alleged incident, and her year-long delay in reporting Cosby’s alleged misconduct to the police. Prosecutors attempted to bolster Constand’s credibility as a witness with testimony from another alleged victim, and with testimony from experts in toxicology and psychology who could address some of the defense team’s substantive attacks.

Expert Witnesses Testify for Prosecution in Cosby Trial

During the last days of the prosecution’s case against the 79-year-old Cosby, the state called two expert witnesses to respond to apparent holes in Constand’s story and support her allegations. Clinical psychologist Dr. Veronique Valliere, an expert witness in sexual assault victim and offender dynamics, took the stand to explain to jurors the psychology of victims which can shed light on their response to sexual assault crimes.

Dr. Valliere told jurors that when an offender makes use of intoxicants during an assault, it is common for victims to experience confusion and guilt, particularly when the victim knows and loves the assailant. The confusion and trauma, which can be enhanced by intoxicants and a relation to the offender, contribute to a distorted memory and can result in inconsistencies when recalling the event.

Dr. Valliere noted further that victims who are assaulted by upstanding or famous members of their community can experience a great deal of fear, self-doubt, and guilt which can result in a delay in reporting the event. Cosby’s defense attorneys challenged Dr. Valliere’s credibility during cross-examination by pointing out comments the psychologist had made online which suggested she was happy that the entertainer was being prosecuted as a result of the allegations.

In an effort too clear up confusion about the type of drug Constand was given by Cosby, prosecutors called Dr. Timothy Rohrig, an expert in forensic toxicology, to discuss the effects of Benadryl, and whether the drug could have produced the effect Constand testified to experiencing.

According to Dr. Rohrig, a central nervous depressant like Benadryl could induce sleepiness, blurred vision, and poor muscle combination but the exact nature of these effects would depend on the dosage. Rohrig told the court that while it isn’t clear exactly how much of the medication Constand took, if she had taken three pills as she testified then she would have consumed 75ml, which is triple the adult recommended dosage of 25ml. Rohrig testified that Benadryl could be used in a sexual assault, pointing to a case in London where an offender used Benadryl and champagne to subdue his victims.

Expert Witnesses Not Enough in Cosby Trial

Ultimately, the prosecution’s use of clinical psychologist and toxicologist expert witnesses proved insufficient to earn a conviction. After close to 5 days of deliberations, jurors returned without a verdict and the case was declared a mistrial. Within minutes of the decision, prosecutors announced they would exercise their right to re-try the case and continue to seek justice for the alleged victims.

Cosby, through his attorneys and PR team, responded by claiming vindication, and calling the prosecution’s efforts to be politically motivated. Should a retrial occur, the process will not begin for several months as both sides prepare to move forward.


Cannabis Expert Witnesses Testify in Oklahoma Drug Trial

A City Councilman in Norman, Oklahoma has asked a cannabis expert witness to testify at his criminal trial where he faces charges of distributing drug paraphernalia. The expert has been called to testify that glass pipes sold in a shop where the defendant used to work can be used to smoke more than just marijuana, which supports the defense’s position that the merchandise should not be considered drug paraphernalia.

Oklahoma City Councilman Faces Drug Paraphernalia Charges

Stephen Tyler Holman, a City Councilman in Norman, Oklahoma, faces felony drug charges for his work as a manager of a shop known as the Friendly Market which sold, among other things, glass pipes which investigators concluded were for the express purpose of smoking marijuana. According to police and prosecutors, Holman violated Oklahoma law by selling paraphernalia used to ingest marijuana, which is illegal in the state. Despite a growing trend across the country which has seen eight states legalize recreational marijuana, more than half of the states legalize medicinal marijuana, and close to 60{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the public support legalization of the drug, Oklahoma law enforcement maintains a strong stance against pot.

Councilman Holman and other employees of the now-closed Friendly Market were arrested for dealing merchandise associated with marijuana after a 2015 police raid found more than 400 glass pipes. According to investigators, Holman convinced the owner of the Friendly Market to continue to sell glass pipes to customers who intended to use them for illegally smoking marijuana. Although police did not find any drugs either on the premises or on Holman, he and another employee face a single felony charge of acquiring proceeds from illegal drug activity and a misdemeanor charge of possession of drug paraphernalia.

Defense Points to Pot Experts in Criminal Trial

Central to Holman’s defense is his contention that the pipes, which were sold as “multipurpose tubes,” are not drug paraphernalia because they can be used for a variety of reasons — not just to smoke drugs. In preparation for trial, Holman’s defense team announced they would call two expert witnesses to inform jurors that the pipes sold at the Friendly Market could be used to smoke several different plants, and therefore could be sold for strictly legal purposes.

Emanuel Doshie bills himself as an expert witness in “glass work and glass art,” and is expected to tell jurors that the pipes sold by Holman are created and distributed for legal use. The prosecution’s only real evidence against the defendant is the pipes, and if the defense team can successfully demonstrate by use of a glassworks expert that the pipes are not inherently paraphernalia then the case against Holman is weakened significantly. To further this end, Holman has also tapped Howie Brounstein, who is the director of the Columbines School of Botanical Studies located in Eugene, Oregon. Brounstein is considered an expert witness in “different types of herbs, including smoking herbs,” and will tell jurors that other, legal, plants can be ingested using the pipes sold at the Friendly Market.

Cannabis Experts Highlight Diversity of Expert Testimony

As Holman’s trial continues, jurors are expected to hear testimony from the two cannabis expert witnesses during the proceedings, highlighting the expansive use of experts in the American criminal justice system. Although cannabis expert witnesses are not a common feature in criminal trials, their use  to dispute the purpose of glass pipes shows that any expert in any field can be called upon to help judges, attorneys, and jurors understand the circumstances of a case well enough to make an informed legal decision.

While Holman’s use of cannabis expert witnesses will surely provide some degree of courtroom theatrics, the judge has determined that both are qualified experts in their field who can contribute to the case without creating a distraction. The testimony has already been limited to exclude smoking demonstrations, with instructions to focus on informing jurors about the use of the glass pipes which are central to the prosecution’s case against Holman. The trial is expected to conclude in early May.

Scientist using pipette in laboratory

AG Jeff Sessions Ends Obama-Era Review of Forensic Expert Techniques

Attorney General Jeff Sessions has put an end to an Obama-era Justice Department initiative which created a panel of independent forensic experts tasked with reviewing crime lab procedures used by the FBI and federal prosecutors. The National Commission on Forensic Science (NCFS) was introduced in 2013 with the goal of ensuring forensic expert testimony from the FBI and other law enforcement officials was accurate and based on sound scientific procedures. Sessions announced that the panel will be replaced by an internal task force, but did not provide details about when or how the transition would occur.

National Commission on Forensic Science Created Under Obama DOJ

After a series of damning reports which questioned the scientific validity of common forensic expert techniques used to convict defendants in federal criminal trials, the Obama-era DOJ created the NCFS to review expert testimony and provide recommendations for prosecutors and law enforcement agencies. Notably, the NCFS targeted traditional methods of forensic investigation used to identify and prosecute defendants that have little scientific support, including bite-mark analysis, chemical analysis of bullets to ID a gun, and hair match analysis. The commission called for higher standards of forensic expert testimony which not only ceased use of these common tactics, but also increased scrutiny on when and how prosecutors used DNA evidence – which can be reliable if analyzed correctly.

The NCFS produced a report last year which encouraged the DOJ to set higher standards of review for DNA and fingerprint evidence, and asked for the government to dedicate millions of dollars to the FBI budget to improve forensic expert practices in these scientific areas. Although the report was heavily criticized by prosecutors and law enforcement officials for contradicting years of settled law on forensic expert testimony, the DOJ welcomed suggestions and set the tone for continued review of techniques used to identify guilty defendants and clear innocent ones. The commission’s report and advisement resulted in a $20 million research effort to improve forensic techniques in crime labs across the country, and increased ethical standards for forensic experts and labs whose work is used during criminal trials.

Despite a letter from several forensic science experts on the panel written to Sessions which implored the Attorney General to continue to value the contributions of the scientific community in setting standards for forensic science experts, the NCFS will be discontinued in favor of an internal DOJ board which may or may not involve any forensic experts.

AG Sessions Also Ends Review of FBI Testimony

Central to concerns about the use of faulty forensic expert testimony was a 2009 report from the National Academy of Sciences which began to question the scientific validity of forensic techniques used heavily by the FBI to convict defendants. A second report in 2012 further exposed FBI expert witnesses for using flawed science and botched methodologies to help convict hundreds of potentially innocent people, some of whom were sentenced to death. In 2014, the FBI undertook a wide-scale review of its own expert testimony and scientific methodologies in an effort to ensure forensic witnesses used against criminal defendants were basing their conclusions on sound scientific principles.

The review identified flaws in the methodology used to match hair samples to defendants and bullets to weapons – two techniques that FBI experts had grossly overstated the effectiveness of for years. Although the review has been ongoing for nearly three years, AG Sessions announced the process would no longer continue. The DOJ announced that there are plans to continue to ensure that testimony based on forensic science is accurate and reliable, however, independent experts are no longer involved in the process. The move has been welcomed by federal prosecutors who have long criticized the commission and use of independent scientists to increase standards in forensic expert testimony for being overly expensive and creating difficulties for law enforcement and prosecutors.

Sessions Criticized for Ending Independent Forensic Science Panel

In the wake of his announcement that he would not continue use of the NCFS, Sessions has received strong criticism from a number of scientists and organizations committed to improving forensic expert testimony. The commission’s involvement in analyzing forensic evidence led to elimination of unreliable techniques such as bite-mark evidence, and has better identified when and how DNA can be used – contributions which forensic experts believe are invaluable to criminal justice.

As exonerations of defendants convicted on the strength of faulty forensic techniques continue to rise, scientists and other critics of Sessions’ actions expressed concern over the reduced role of forensic experts and doubt that an internal board created within the DOJ could accomplish the same objectives as an independent commission of scientists could. Regardless of objections from the forensic science community, Sessions will continue his plan to internalize review of expert testimony with the goal of making forensic science available to law enforcement.