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.

Iowa Supreme Court Overturns Child Abuse Convictions Due to Expert Testimony

Earlier this month, the Supreme Court of Iowa issued a ruling in three recent appeals of child sex abuse convictions that limited the extent of permissible expert witness testimony during trial. According to the Iowa justices, sexual abuse expert witnesses can explain the symptoms of sex abuse to jurors but are not permitted to opine on whether or not the alleged child victim actually exhibited them.

Three Sexual Abuse Convictions Appealed to Iowa Supreme Court

In early December, the Iowa Supreme Court granted retrials to three alleged abusers in separate sexual abuse cases because prosecutor expert witnesses went too far with their testimony. Each case prosecuted men for allegedly abusing young girls who were in their own family, and each featured an expert sexual abuse witness to help jurors determine whether or not the alleged abuse occurred. A therapist, doctor, and forensic interviewer provided testimony to jurors that identified the symptoms of sexual abuse and then went on to identify observed behavior in the alleged victim.

According to one expert an alleged victim’s “demeanor was completely consistent with a child who has been traumatized, particularly multiple times.” Another expert testified that during her work with the child in her case she, “observed some ‘telltale’ physical manifestations [of abuse] such as dressing in layers, cutting hair, dressing ‘very boyish,’ and reacting to triggers.” With help from these comments and additional expert witness testimony that similarly connected the alleged victim’s behavior to symptoms of child abuse, prosecutors were able to earn convictions in all three cases.

During trial, defense attorneys attempted unsuccessfully to prevent the expert witnesses from being allowed to testify about specific behavior indicative of child abuse, but all three defendants found more success on appeal.

Iowa Supreme Court Overturns Child Abuse Convictions due to Expert Testimony

Citing Iowa case law, which prohibits expert witnesses from testifying to matters of fact, a unanimous Iowa Supreme Court decision found that all three sex abuse cases had improperly featured extensive expert testimony. According to Iowa law, expert witnesses are permitted to explain symptoms of recognized psychological syndromes generally, but cannot speak to the facts of the case. Additional fact witnesses are required to connect the general principles discussed during expert testimony to the specific facts at issue during trial.

In these cases, fact witnesses would consist of individuals who observed the specific behavior of the alleged child victim. According to the Iowa Court, only fact witnesses who had seen the alleged victims after the claimed abuse could speak to their behavior, and it was up to the jury to determine whether or not that behavior matched the symptoms of child abuse explained by the experts earlier in the trial. Although the distinction between permissible and impermissible expert testimony is a fine line, it is an important one that preserves the role of juries as ultimate finders of fact.

Limitations on Expert Witness Testimony Reinforce Role of Jury

Criminal and civil juries are responsible for examining the available evidence and making the ultimate decision on the outcome based on how the facts of the case align. By having expert witnesses tell jurors that an alleged victim suffers from symptoms of child abuse, courts risk taking the issue of fact away from jurors because rather than determine whether or not the evidence supports a finding of abuse, jurors can easily be swayed by an expert’s own interpretation of the case. Although the Iowa Supreme Court noted that expert witnesses may connect an alleged victim’s behavior to the symptoms of child abuse if the defense first argues the contrary, the state’s highest court reminded prosecutors that experts are not permitted to testify about their interpretation of relevant facts.

While the Court unanimously found the expert witness testimony to cross the line of permissible testimony, two of the seven justices dissented from the majority’s decision to overturn the convictions. Saying the impermissible expert testimony did not significantly impact the conviction, the dissenting justices argued the Court should not have granted new trials. However, the majority opinion disagreed and determined that when the experts took on the role of factual interpretation, jurors were influenced in such a way that the outcomes were tainted. New trials will be held in all three cases.

Car Accident Reconstruction Expert Faces Aggressive Challenge from Prosecutor

A vehicular manslaughter trial in Ithaca, New York turned heated last week when the lead prosecutor accused the defendant’s car accident expert witness of being a “mercenary” willing to testify to anything for money. While every expert witness testifying at trial does so for money, the contentious back-and-forth highlighted concerns that some experts prioritize financial interests over relevant testimony.

Vehicular Manslaughter Case Relies on Accident Reconstruction Analysis

Last New Year’s Eve, a Chevrolet Monte Carlo driven by 19-year-old James Crosby collided with a Jeep driven by Samantha Aarnio. The collision killed one passenger in each vehicle: Kathy Lattimore, Aarnio’s 67-year-old mother-in-law, and Derek Nichols, Crosby’s 20-year-old friend, and, after investigation, Crosby was charged with vehicular manslaughter for both deaths. He is also charged with second-degree assault, third-degree assault, second-degree reckless endangerment and reckless driving for his role in causing the accident. Judge John Rowley is presiding over a bench trial that will not use a jury to come to a verdict, and prosecutors are asking that Crosby be found guilty and sentenced to 4 – 12 years in jail.

In his defense, Crosby’s attorneys have taken issue with the police report detailing the investigation. The results of the police report suggest that Crosby’s Monte Carlo was traveling at a speed between 84 – 91 mph before colliding with Aarnio’s Jeep, which was traveling at 45 mph. Pointing to this data, prosecutors have argued that Crosby was clearly in violation of traffic laws and was moving at such an unsafe speed that he was acting recklessly in such a way that he should have known would endanger the lives of others. Concluding that his clearly reckless actions were the direct cause of two deaths in the resulting accident, prosecutors relied on the accident diagnosis found in the police report to convince Judge Rowley that Crosby is guilty of two counts manslaughter.

William Fischer, a crash reconstruction expert witness hired by the defense, disagreed with the information found in the report and took police investigator’s to task for shoddy and incomplete analysis of the accident.

Defense Car Accident Expert Testifies During Manslaughter Trial

Mr. Fischer began his testimony by informing the Court that his independent investigation concluded that Crosby was traveling at 55 mph – a speed much closer to the posted speed limit. Further, Fischer testified that Aarnio’s Jeep was moving much slower than 45 mph, meaning that the accident happened at a far lesser speed than reported by police. Fischer directly contradicted the police report’s analysis of the speed of the accident, allowing defense attorneys to argue that Crosby was not driving at a negligently high rate of speed prior to the crash.

Additionally, Mr. Fischer found fault in the police investigation because officers declined to perform skid tests at the scene. Saying that police need to gather an estimation of the coefficient of friction in order to get accurate speed tests, Fischer called the investigation incomplete and prone to error. Calling the police’s tactics a “bastardized” test of determining speed, the defense expert witness claimed that his calculations, which were more complete, represented a reliable estimate of the speed of the two vehicles.

Fischer also testified that a lack of deformity in the filaments of the rear taillights suggest that Aarnio’s Jeep may not have had its lights on at the time of the crash – a relevant fact considering the accident happened 19 minutes after sunset. Taken together, Fischer’s car accident reconstruction expert testimony targeted potential flaws in the prosecution’s analysis which suggested Crosby was driving negligently at the time of the accident. By calling Fisher, Crosby’s defense team attempted to introduce reasonable doubt to the question of his negligence, hoping to convince Judge Rowley that manslaughter is not an appropriate charge.

Prosecutors Challenge Defense Car Expert Witness

In response to Fischer’s criticism of the police accident reconstruction, lead prosecutor Eliza Filipowski challenged the car accident expert on a number of points. First, Filipowski pointed out that Fischer has been openly critical of skid tests, raising questions about why he condemned the police for not using one in their calculation of Crosby’s speed. Although Fischer responded that any test of friction would be better than none, Filipowski followed her line of questioning by contrasting the techniques used by police investigators, which relied on electronic optical measurements of speed, to Fischer’s calculations of speed, which featured an inaccuracy that the defense expert could not adequately explain.

Finally, Filipowski attacked Fisher’s credentials, which have not been updated recently, and challenged his history of testifying only for defendants in car accident reconstruction cases. Pointing out that Fischer, who was paid $12,000 for his expert witness testimony, failed to provide a complete or consistent critique of police tactics or an accurate reconstruction method, Filipowski attacked the reliability and credibility of the defense expert in an effort to promote the state’s case for a manslaughter conviction.

Inmate’s Family Sues Ohio Expert Witness over Botched Execution

Family members of an Ohio inmate executed by the state have sued a lethal injection expert witness for failing to recognize that the controversial two-drug technique would cause suffering. Claiming that the expert helped create an inmate execution policy that he knew would be painful, the plaintiffs are seeking financial compensation for its use in a death sentence carried out in January of this year.

Ohio Conducts Review after Lengthy Execution

In January, Ohio inmate Dennis McGuire was executed for the 1989 rape and stabbing death of Joy Stewart, a 22-year old pregnant woman. McGuire’s execution, the first to be conducted by an untried two-drug combination, made headlines after he took nearly ½ an hour to die. According to witnesses, the convicted killer gasped for air and writhed in pain for 15 minutes, leading attorneys representing McGuire and his family to call the new method of execution a “failed experiment” and request official review of the process.

In a report relying on the opinion of an anesthesiologist who reviewed the witness accounts and McGuire’s medical records, Ohio officials declared that the condemned inmate did not suffer during his execution. Finding that the execution was humane despite the apparent hang-ups, the report read, “The two drugs used in the McGuire execution had their intended effect and that McGuire did not experience any pain or distress. The bodily movements that were observed were consistent with the effects of the drugs, his obesity and other body characteristics, and involuntary muscle contractions associated with the ending of respiratory function. There is no evidence that McGuire experienced any pain, distress or anxiety.”

Despite the findings, the Ohio Department of Corrections announced that it would increase the dosages of both drugs in its two-drug system, and state officials have postponed a second planned execution indefinitely. Calling the state’s actions a tacit admission that the execution did not transpire as planned, attorneys for McGuire’s family filed a lawsuit against the state and the expert witness who helped develop the new two-drug execution procedure.

Inmate’s Family Files Lawsuit against Death Penalty Expert Witness

In a recently filed lawsuit, family members of Dennis McGuire claimed that a former expert witness who helped Ohio construct its two-drug cocktail knew, or should have known, the procedure would cause unreasonable pain and suffering when used during executions. Dr. Mark Dershwitz, who resigned as a death penalty expert witness citing concerns about his professional reputation, worked closely with Ohio officials to help create the state’s new lethal injection process. Dr. Dershwitz is an anesthesiologist and pharmacologist working for the University of Massachusetts who has been a public proponent of the two-drug method as a new lethal injection policy, and he contracted as an expert witness with Ohio prior to McGuire’s death in developing the procedure for use in state executions.

The lawsuit against Dr. Dershwitz and the drugs’ distributors claims that the expert “knew or should have known that when used in executions, Hydromorphone and Midazolam would cause unnecessary and extreme pain and suffering during the execution process.” Pointing to the McGuire ordeal, plaintiffs claim that he suffered needlessly because of the experimental procedure, and Dr. Dershwitz shares responsibility for encouraging the state to switch to the two-drug method. Although Dershwitz did not testify at a trial, his work was instrumental in the adoption and use of a two-drug cocktail that, according to lawsuit, he knew would cause pain and suffering in violation of the Constitutional protection against cruel and unusual punishment.

Dr. Dershwitz, who resigned in April after continuing to consult with Ohio prison officials following McGuire’s execution, has not responded to the federal lawsuit.

Canine Expert Witness to Testify in Negligent Supervision of a Child Case

A judge in Iowa has approved the request of a woman charged with the death of a 4-year-old child who was attacked by a dog while under her care to call a canine behavior expert witness to testify that the defendant could not have known the attack was likely to occur. The judge’s decision granted a pre-trial motion for the criminal case that is scheduled to begin in January, bringing to a close an investigation that began after the deadly attack last April.

Child Killed by Dog While Under Babysitter’s Care

Four-year-old Jordyn Arndt died from injuries suffered during a dog attack that occurred in the home of her babysitter, 24-year-old Jena Marie Wright. Wright was charged with taking care of Jordyn and her 7-year-old brother, Aden, at her home in Prairie City, Iowa on in April of 2013. While at the home, Jordyn was attacked by Jena’s dog, Brutus, an American Staffordshire Terrier. Brutus bit Jordyn in the head and neck area, causing injuries that resulted in the child’s death at a Des Moines hospital the following day.

Jena Wright was arrested and charged with child endangerment causing death as well as neglect or abandonment of a dependent person – two federal crimes that could result in a 35-year prison sentence if she is convicted. Wright is also charged with assault on a peace officer causing bodily injury and interference with official acts for allegedly kicking the arresting officer in the chest during her arrest after the attack.

In order for the prosecution to prove that Wright committed child endangerment and neglect of a dependent person, the state must demonstrate beyond a reasonable doubt that the defendant knew, or should have known, that Brutus had a propensity for aggression that could lead to him attacking Jordyn. As part of her defense, Wright’s attorneys sought the testimony of a canine expert witness to explain to jurors that she might not have known that her animal would become aggressive towards a young child.

Canine Expert Witness Called to Testify About Knowledge of Dog’s Capacity for Violence

Ron Berman, a California based forensics consultant who is an expert in canine temperament, bites, and behavior, has been chosen by Wright’s defense team to take the stand and bolster their claim that the defendant could not have known Brutus would attack Jordyn. Berman was chosen as one of four canine expert witnesses in the United States who has the experience with evaluating dog behavior that qualifies him to offer expert testimony on the subject during a criminal trial. Although the exact nature of Berman’s testimony is unknown, Wright’s attorneys argued his contribution to the trial was relevant because it would support the defense’s argument that the babysitter did not know the dog was violent when she made the decision to leave the children unattended with the animal.

Prosecutors objected to the use of Berman, arguing that his expert testimony was not relevant and would only serve to distract the jury from the important question of whether or not Wright acted negligently by leaving young children alone with a dog. Judge Richard Clogg, however, granted the defense team’s motion because he felt that the canine expert testimony would ensure that Wright received a fair trial that debated all relevant issues, including questions about whether or not she could have known that Brutus had a propensity for violence. As part of his ruling, Judge Clogg agreed to allot $18,000 in public funds to pay for Berman’s expert contribution to the proceedings.

Expert Witnesses and Relevance

Modern standards for admitting expert witness testimony require judges to make determinations about whether or not the proposed contribution would be relevant. Relevant testimony is testimony that informs the court whether the occurrence of a particular fact, or set of facts, is more or less likely, and if an expert is not adding information necessary or helpful to the jury’s determination of whether or not an important fact is true, or is providing testimony that could unfairly prejudice jurors in favor of one side over the other, then a judge could disallow the expert from participating at trial.

If, on the other hand, an expert’s proposed testimony will help jurors determine whether or not the facts presented at trial occurred in such a way that suggests the defendant’s guilt or innocence, the testimony will be relevant. In this case, Mr. Berman’s expert testimony on canine behavior will help jurors determine whether or not the prosecution’s allegation that Wright knew, or should have known, is true. Berman is speaking to a critical alleged fact – that Wright was aware that it was not safe to leave Brutus with two young children – and, as such, his contribution to the trial is relevant.

Dallas Buyers Club LLC Uses Technology Expert in Australia Copyright Lawsuit

Dallas Buyers Club LLC, the company behind the Oscar winning film starring Matthew McConaughey and Jared Leto, has actively pursued individuals who illegally downloaded the movie on a bit-torrent stream both domestically and abroad. The company has filed more than 3,500 subpoenas across the United States demanding anonymous users come forward with personal information, and this week litigation in front of an Australian federal court progressed with DBC’s hiring of a technology expert witness who will help the company identify parties who illegally download the film.

Dallas Buyers Club LLC Seeks Illegal Downloaders

While Dallas Buyers Club LLC has sent subpoenas demanding personal information to suspected illegal downloaders here in the United States, the company has taken more advanced steps in Australia. In a highly publicized legal action, DBC has taken Australian Internet Service Providers (ISPs), including Australia’s primary ISP iiNet, to task for failing to reveal the identities of users who downloaded the movie illegally. iiNet refused DBC’s request to reveal personal customer data, leading to a lawsuit in the Federal Court of Australia in which DBC asks the court to grant a “preliminary discovery” to compel identification of people who committed copyright infringement by downloading the film from illegal stream torrents.

While iiNet acknowledged that DBC had the right to pursue infringement of a copyright, the company questioned whether or not DBC would use customer information responsibility. Steve Dalby, an iiNet executive, responded to DBC’s claim by saying, “In this case, we have serious concerns about Dallas Buyers Club’s intentions. We are concerned that our customers will be unfairly targeted to settle any claims out of court using a practice called ‘speculative invoicing.’ iiNet is concerned that such a development would open the floodgates to further claims by other rights holders, leading to more Australians being intimidated to pay exorbitant amounts in an attempt to avoid improbable litigation.”

Dallas Buyers Club Hires German IT Expert Witness to Track Illegal Downloads

Contributing to iiNet’s concerns was DBC’s use of a German organization hired to connect IP addresses to personal user information – a process that iiNet and other ISPs felt uncomfortable with. To investigate the organization further, iiNet requested an expert witness from Germany to explain how the company tracks individual users in order to assess the reliability and accuracy of the procedure.

After failing to receive personal information about illegal downloaders from ISPs upon request, Dallas Buyers Club LLC hired German company Maverickeye UG to track Australian users based on IP addresses that accessed the Oscar-winning film online. According to the company’s website, Maverickeye uses “highly sophisticated software” and “robust hardware infrastructure” to obtain accurate user information identifying users who committed acts of copyright infringement.

To explain the process of reverse tracking users through IP addresses, DBC asked for an expert witness report from Dr. Simone Richter, a German IT professional who has experience in piracy detection systems like Maverickeye. As explained in Richter’s report, Maverickeye serves a sort of lure to potential copyright infringers by acting as a source of data without actually transferring anything. Once the system identifies a willing exchange partner, the IP address is identified and connected to illegal downloading activity. According to Dr. Richter, Maverickeye is able to distinguish IP addresses of users who are willing to distribute a piece of copyrighted data from users who simply share files online with others.

For the purposes of Dallas Buyers Club LLC’s lawsuit, Maverickeye was tasked with identifying user account information connected to IP addresses that illegally accessed the movie online.

Australian Internet Provider Requests Expert Witness

Given the concerns that DBC would misuse user information, iiNet and other Australian ISP’s were reluctant to accept the film owner’s use of Maverickeye without first testing the reliability and accuracy of the user information obtained. Arguing that the potential consequences to users that Maverickeye identified required a full analysis of the process, iiNet asked Justice Nye Perram for in-person access to Dr. Richter so he could explain his report.

In order to substantiate Maverickeye’s ability to present user data that accurately matched an IP address to an individual account holder AND connect that particular individual to the act of copyright infringement, iiNet requested DBC fly Dr. Ricter from Germany to fully explain how Maverickeye operated. Citing expense, DBC’s lead attorney attempted to satisfy iiNet and the Australian federal judge by reading from Ricther’s expert witness report which explains the process of identifying users based on IPs, but iiNet responded that due to the complexities of the issue the witness needed to be cross-examined. Attorneys for iiNet argued that because account holders who were identified by Maverickeye would face the threat of legal action from DBC, the process needed to be fully vetted by having the expert witness testify in person during trial.

Ultimately Judge Perram agreed with iiNet, and ordered DBC to fly Dr. Richter to Australia so his expert testimony could be heard in person. The question of whether DBC can force ISPs like iiNet to reveal user information will proceed in January, and given the development of a similar issue in the US, how Australia uses Dr. Richter’s expert witness testimony could become important in future litigation domestically.

LA School District Dismisses Attorney who Used Controversial Expert Witness

The Los Angeles Unified School District (LAUSD) is transferring cases away from its primary law firm after evaluating the lead counsel’s defense tactics in sexual abuse lawsuits against school officials. One instance contributing to the LAUSD decision to change attorneys involved controversial use of an expert witness in defense of a lawsuit filed by an elementary school girl with a low IQ who was victim of sexual assault in an LA area school.

LAUSD Attorney Uses Controversial Expert

In May of 2013, attorneys representing the Los Angeles Unified School District defended the district against sexual abuse allegations filed by a 9-year-old girl with a low IQ who claimed she was the victim of assault by a boy at her school. The LAUSD was found financially liable for failing to protect the girl, and during the penalty stage of the civil trial the lead attorney for the school district, W. Keith Wyatt, made an interesting, and controversial, expert witness decision. Wyatt called to the stand Dr. Stan Katz who theorized that the young girl’s low IQ may act as protection from the trauma of sexual assault, thus warranting fewer damages from the school district.

Dr. Katz, a psychology expert witness, testified that the girl’s IQ, between 64 and 70, could suggest that she lacked the mental capacity to suffer serious depression or trauma from the incident. During his expert testimony, Katz responded to a question about whether or not the girl’s mental disability could act as a protective factor by saying, “There’s a relationship between intelligence and depression. What happens is the more you think about things, you can ruminate, you can focus on things, you can look at the complexities of the matter and become more depressed.” Although Dr. Katz did not deny the girl suffered trauma, his testimony indicated that her suffering was reduced because of her mental inability to dwell on her experience.

Separate experts who reviewed Dr. Katz’s testimony have openly disagreed with him, going so far as to argue that in some cases a mental disability could enhance the trauma that victims experience. More significantly to the LAUSD, the jury was unconvinced and ordered a significant damage award.

Jury Awards $1.4 Million to LA Girl Sexually Assaulted at School

According to David Ring, attorney for the young victim, “the jury was offended, they were disgusted and they thought it was unbelievable that an expert witness could come in and say something like that.” Accordingly, jurors awarded the girl and her family $1.4 million in damages, which is significantly higher than the $10,000 – $12,000 Wyatt suggested. Dr. Katz’s expert testimony in last year’s case not only was unsuccessful in arguing for a lesser damage award, but seemed to have caused the LAUSD position harm by repulsing jurors to the idea he advanced during trial.

LAUSD Changes Legal Counsel

Last week, the LAUSD cut ties with attorney Wyatt citing statements he made in another sexual abuse lawsuit which argued that a 14-year-old girl was mature enough to consent to sex with her 28-year-old teacher. Although the decision is over a year removed from his controversial use of Dr. Katz as an expert witness, the lawyer’s dismissal seems to be the result of a sweeping analysis of his defense strategy in sexual assault lawsuits. Wyatt’s recent comments dismissing the 14-year-old victim of teacher abuse and his use of an expert witness to argue that a 9-year-old with a low IQ suffered less trauma from sexual assault can serve to remind other attorneys in similar situations that there is a fine line between a legitimate argument and statements that will alienate and offend a jury to the detriment of the client.

Psychiatry Expert Witness Testifies in Murder Trial

Last week a jury in Tioga County, New York convicted 63-year-old Douglas Every of manslaughter for the stabbing death of his 39-year-old roommate, Milton Jump. Mr. Every did not deny his role in the incident, but attempted to bolster his self-defense argument by calling a psychiatric expert witness to testify that his mental state caused him to reasonably fear the victim would harm him.

New York Man Convicted of Manslaughter for Stabbing Roommate

Douglas Every and Milton Jump lived together in a home owned by the 63-year-old Every until the two got into a verbal altercation on October 23, 2013. After the men had been drinking, they began an argument that ended with Every stabbing Jump in the heart. Prosecutors charged Every with 2^nd-degree murder, but the Defendant argued that he had acted in self-defense due to feeling intimidated by the younger Jump’s behavior during the argument.

After a two-week trial, jurors were unwilling to find Every guilty of the murder charge, forcing the prosecution to settle for the lessor option of manslaughter. Although the jury ended up convicting Early for the stabbing death of his roommate, the decision to find him guilty on the lessor manslaughter charge suggests that the defense strategy to justify the assault had some impact on the outcome. Critical to the defense was the testimony of a psychiatry expert witness who informed jurors that the Defendant suffered from heightened states of agitation that contributed to his violent and fatal reaction to the argument.

Psychiatry Expert Witness Testifies for Defense

Defense attorneys for Douglas Every called Dr. Thomas Lazzaro, a forensic psychologist with more than 30 years of experience, to testify that the Defendant experienced high anxiety and the early stages of dementia that contributed to his overreaction to verbal confrontation. Dr. Lazzaro performed a psychiatric evaluation on the Defendant after his arrest, and testified to jurors that the accused experienced anxiety as a result of his dementia. Lazzaro, who both sides agreed is an expert in psychology and human behavior, explained to the court that his evaluation with Every and his investigation of the incident led him to concluded that the Defendant could not control his perception of the escalating argument with Milton Jump.

Defense attorneys used Dr. Lazzaro’s expert testimony to argue that Every acted out of fear of a physical threat, even if an objective observer to the situation would determine that the threat did not warrant a violent response. Self-defense justifies violent action if a defendant reasonably perceives a threat of imminent harm, and when a disrupted mental state alters how the defendant perceives confrontation jurors can take the altered perception into account. If Douglas Every’s mental condition and high anxiety created in his mind a reasonable fear that his verbal altercation with Milton Jump would turn violent, then he may qualify for a self-defense justification to the crime.

Prosecutors responded to the effort by questioning Dr. Lazzaro’s motivation to testify (he received $3,000), and pointing out that despite the psychiatric evaluation, it was Every who escalated the argument to violence.

Jurors Don’t Grant Self-Defense Acquittal

Dr. Lazzaro’s evaluation of Douglas Every led to compelling testimony that the defendant was unable to process the threat of a verbal altercation with his roommate in a normal way, however, jurors were unwilling to grant full acquittal. The 1^st-degree manslaughter conviction is a step down from 2^nd-degree murder, suggesting Dr. Lazzaro’s testimony had some effect, but jurors clearly felt that Every was accountable for his violent behavior and did not deserve to go unpunished. Mr. Every has been remanded to the Tioga County jail for a January sentencing hearing that will likely reopen the issue Dr. Lazzaro testified to during the trial. Every faces a maximum of 25-years for the 1^st-degree manslaughter conviction.

Sex Abuse Expert Testifies During Tutor’s Sexual Assault Trial

A Catholic school tutor in Grand Rapids, Michigan accused of sexually abusing her former student offered expert witness testimony to argue she was pressured into the encounter by the teenager. Two years ago the 33-year-old educator was arrested for having a sexual relationship with her then 15-year-old student, but her defense team has argued that she was the victim and called a sex abuse expert to help jurors understand her actions.

Tutor Accused of Sexual Abuse Claims Duress

Abigail Simon, now 35, stands trial for sexual assault of a former Catholic school student of hers two years ago after the two shared an intimate relationship. Ms. Simon was discovered when a series of sexually explicit text messages indicated she had been sleeping with her now 17-year-old former student, leading prosecutors to file the sexual abuse charges. Although the defendant concedes that she engaged in an improper sexual relationship with her former student, her attorneys focused the defense on evidence that the underage student was the aggressor, causing Ms. Simon to engage in sexual activity under duress.

Arguing that the teenager was a sexually dominant young man who pressured his former tutor into the relationship, Ms. Simon’s attorneys presented a series of text messages between the young man and his friends that featured the victim bragging about his sexual conquests with Ms. Simon and others. The victim testified for over four days early in the trial, and was peppered by defense attorneys about his sexually explicit text messages and his behavior towards the defendant.

After laying the foundation for her defense, Simon’s attorneys called a sexual abuse expert witness to testify that the victim’s aggressive behavior and her history as an abused woman made her vulnerable to his sexual advances.

Sex Abuse Expert Witness Testifies for Defense

Tom Cottrell, vice president of counseling at the YWCA, was called by Simon’s defense team as an expert in sexual abuse. After years of counseling sex assault victims and offenders, Mr. Cottrell was asked to provide an explanation for Ms. Simon’s behavior during her sexual relationship with one of her male students. Although Mr. Cottrell did not opine that Abigail Simon was the victim as her attorneys argue, he explained that because she was a former domestic abuse victim herself, she could perceive some of the messages the teenager sent her as threatening. Such duress, Cottrell testified, could create a situation where Ms. Simon was concerned how the 6 foot 3 inch, 220 pound teenager would react to her avoiding a sexual relationship.

To supplement Cottrell’s testimony, defense attorneys called friends of the former tutor who confirmed that a previous boyfriend had, in fact, abused her throughout her former relationship. Linking the past abuse with her sexual relationship to a 15-year-old, defense attorneys attempted to convince jurors that Simon was coerced into sex and therefore not guilty of sexual assault of a minor.

Prosecutors Dispute Sex Assault Justification

Assistant prosecuting attorney Helen Brinkman called the defense tactics a “play in the theater of the absurd,” and criticized Simon’s attorneys for trying to trash the victim as a sexually aggressive manipulator rather than a 15-year-old unable to resist the advances of his tutor. Prosecutors also talked to Tom Cottrell, and elicited testimony from the sex abuse expert that highlighted several aspects of the profile of a sex abuser the teenager did not fit, despite the defense attorney’s claims that the young man was in control of the sexual relationship. Further, Cottrell testified that sex abuse victims often try to keep the relationship a secret, which is something the 15-year-old did throughout his relationship with Simon.

The trial of Abigail Simon will continue for several more days before jurors are asked to return a verdict.

Texas Court Dismisses Expert Witness in Environmental Contamination Lawsuit

The Texas Supreme Court vacated a $350,000 jury verdict last week due to insufficient testimony from the Plaintiff’s expert witness that improperly influenced the award. In an environmental contamination lawsuit between a Texas ranch and its neighboring metal processing plant, the Plaintiff’s case leaned heavily on the testimony of a real estate expert to ascertain long-term property damages. On review, the Texas Supreme Court rejected the reliability of the expert testimony, and struck down the high-dollar judgment.

Texas Ranch Seeks Stigma Damages after Contamination

The case, Houston Unlimited, Inc. Metal Processing v Mel Acres Ranch, arose after Houston Unlimited released liquid waste into a culvert that drained into a stock tank on the Mel Acres Ranch. The Plaintiff requested the Texas Commission on Environmental Quality (TCEQ) to enforce action against Houston Unlimited for noncompliance with environmental regulations, and compel the processing plant to cease operations that risked contamination on ranch lands. After Houston Unlimited took corrective action, the company determined that there was no ongoing effect on Mel Acres Ranch and thought the matter was resolved.

Mel Acres disagreed, and filed a lawsuit seeking damages for a decrease in the fair market value of the ranch due to contamination and the stigma of contamination that effected the ranch’s reputation. According to the lawsuit, the ongoing damage to Mel Acres came in the form of a negative stigma associated with contamination, even if the actual contamination had a minimal or short-term effect on the value of the property. Texas law is not clear on whether stigma damages are allowed in real estate contamination actions, but Mel Acres pursued the option due to no specific legal position denying it.

Mel Acres’ tactic worked, and after trial a Texas jury awarded the Plaintiffs $350,000 for the ongoing effect of negative stigma created by the contamination caused by Houston Unlimited.

Contaminated Ranch Relies on Real Estate Expert for Diminution of Value

Critical to the Plaintiff’s case was the testimony of real estate expert witness, Kathy McKinney. McKinney is a licensed real estate appraiser who was called to testify about the effect contamination had on the lasting value of Mel Acres property. During her expert testimony, McKinney employed a “sales-comparison” appraisal approach to determine Mel Acres’ value when compared to other properties similar in size, location, date of sale, and physical attributes. Based on the comparison, McKinney determined that the Mel Acres Ranch had an “unimpaired” value of $2,329,000, which the Defendant did not dispute.

In determining the “impaired” value, however, McKinney branched off from the “sales-comparison” model due to lack of similarly effected properties to compare Mel Acres to. Instead, McKinney found two properties, both of which had experienced environmental contamination that did not have a long-term effect. In each case, McKinney found that the properties sold for a much lower price than the appraised value, and determined that contamination like Mel Acres had suffered caused a 60{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} loss of market value.

Texas Supreme Court finds Contaminated Property Appraisal Unreliable

Although the Texas Supreme Court ducked from the determination of whether or not stigma of formerly contaminated property damages are available under the law, the Justices found no problem dismissing McKinney’s expert witness testimony due to lack of reliable facts and poor methodology. While the Court accepted the sales-comparison approach, it took issue with the method McKinney used to derive the impaired value of Mel Acres that was, in her expert opinion, negatively affected by stigma associated with contamination. Upon examining the details of the two previously contaminated property sales that McKinney compared Mel Acres to, the Court noticed that there were a number of factors that contributed heavily to the reduced sale price, all of which could have had more influence than the environmental contamination. Further, McKinney’s claim that Mel Acres had experienced 60{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} reduction of value was based on a guess rather than a formula that could reliable appraise property.

The Texas Supreme Court found McKinney’s entire expert testimony relied on a series of assumptions about proper sales comparisons, and how stigma of contamination could impact property value. Without reliable facts or proven methodology to base her expert testimony on, McKinney was dismissed as a witness because her opinion improperly influenced the trial. Without testimony from a reliable real estate appraisal expert witness, the Court dismissed the jury award for contamination stigma damages.

Expert Witnesses Participate in Infant Murder Trial

Last week a Chicago criminal court declared a mistrial in the murder case of Jessica Cruz, who has been accused of killing her baby moments after it was born and disposing of the body in a trash can in Salvation Army store restroom. During the trial, which left jurors hopelessly deadlocked, two forensic pathologist expert witnesses offered contradictory reports as to whether or not the infant was alive after the birth at all.

Jessica Cruz Accused of Murdering Infant

Jessica Cruz was arrested in November of 2011 after police connected the body of a newborn that employees of the Chicago-area Swiss Army store found to the then 19-year-old woman. Jessica, now 22, was charged with first-degree murder and concealment of a homicide for allegedly killing her infant shortly after giving birth. Prosecutors sought life in prison for what the state called, “exceptionally brutal or heinous behavior indicative of wanton cruelty.”

Crucial to the Cruz trial was the question of whether or not the baby was alive at the time of his birth. According to authorities, Cruz gave birth to living baby boy then put the baby into a garbage bag, tied the bag around his neck, put his body into a garbage can and covered him with paper towels. She attempted to clean up the restroom before leaving to clean herself in another store nearby the Salvation Army outlet.

Through her attorneys, Cruz has denied the claim that the baby was alive. According to her story, the infant was stillborn and, because she did not know what to do, she hid the body in a trash can without alerting police or medical personnel. Both prosecutors and defense attorneys called medical expert witnesses who debated whether or not the baby boy was alive at birth throughout dueling testimony presented during trial.

Medical Expert Witnesses Debate Life of Infant

To support the state’s argument that Jessica Cruz gave birth to a living baby boy before strangling him with a garbage bag and leaving his body in a bathroom trash can, prosecutors called upon the Cook County medical examiner’s office. The assistant medical examiner who was part of the murder investigation took the stand as an expert witness in order to inform jurors that the baby died of strangulation. Pointing to x-rays and a float test that indicated the baby boy had taken life, Dr. Ponni Arunkumar testified to jurors that the baby had been alive and strangled in an act of homicide, giving prosecutors the testimony they needed to argue that Cruz had committed murder.

Defense attorneys mounted a spirited counter-attack by calling a separate medical expert witness to cast doubt on the county examiner’s conclusion that the baby was born alive before being strangled. Dr. Janic Ophoven, a pediatric forensic pathologist, was called as a medical expert witness for the defense to tell jurors that there was not sufficient evidence to prove the boy survived the birth. Dr. Ophoven countred Dr. Arunkumar’s claim that the boy had taken breath by comparing the infant’s lungs to an x-ray of a stillborn baby in its first or second trimester. The defense medical expert went on to testify that the alveolar sacs in the lungs were “inconsistent with live birth” and opined that the baby could have asphyxiated while moving through the birth canal.

The competing medical expert witnesses debated the critical question of whether or not the infant boy was alive at the time of birth during testimony to jurors, and both parties pointed to the expert evidence during closing arguments before jury deliberations.

Jurors Unable to Reach Verdict

Ultimately, the jury was not able to agree which evidence was more credible and after three days of contentious deadlock, Judge Bridget Hughes formally declared a mistrial. While a mistrial is not akin to a conviction, it is evidence that the defense expert witness was able to sway some members of the jury with testimony that the evidence of the infant’s live birth was unconvincing. Cruz will undergo another murder trial with a new jury, which will unquestionably feature the same, or similar, expert witnesses to once again engage in debate about whether or not the baby boy was alive after his birth.

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About Colin Holloway, Attorney at Law