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.

11th Circuit Rules Expert Testimony Based on Theory is Inadmissible

Last month, the federal 11^th Circuit Court of Appeals confirmed that the lower federal trial court correctly excluded expert witness testimony due to insufficient factual support. In a lawsuit against Fixodent denture adhesive, defendants were granted summary judgment due to the failure of plaintiff’s expert witness to link the allegedly defective product to the harm suffered.

Expert Witness Standards in Toxic Torts

In personal injury lawsuits alleging a defective product created a toxic risk, the plaintiff must be able to establish a causal link between the product and the harm suffered. In modern litigation, this is done exclusively with expert testimony by use of scientists who either connect conclusions established by existing studies to the facts of the case or argue that a new study or method of analysis creates the necessary causal link for the plaintiff to be successful.

Regardless of whether the expert applies established scientific literature to the case or supports the application of new science to the litigation, federal judges will determine if the expert testimony is reliable and relevant by applying the test created by the Supreme Court in Daubert v Merrell Dow Pharmaceuticals. Under Daubert, expert testimony is considered reliable if the scientific methodology is based on sound theory, was well researched, and was accurately applied the facts of the case. Typically, judges look to established literature from peer reviewed journals to assist the determination if a particular expert is supporting his testimony with reliable science, but when the science is relatively new, judges are forced to take a close look at the methods and procedures applied by the expert witness.

In Chapman v Procter & Gamble Distributing, LLC, plaintiff’s expert witness testified to recent scientific studies that, in theory, supported the allegations that defendant’s products caused medical harm. The 11^th Circuit determined that the testifying expert had failed to connect his scientific theory to the cause of the plaintiff’s injury.

Plaintiff Expert Witness Fails Reliability Test

At issue in Chapman is whether or not Fixodent denture adhesive from P & G caused the plaintiff’s neurological disorder. To demonstrate the necessary causal link between Fixodent and the plaintiff’s injuries, plaintiffs called an expert to argue that the excessive levels of zinc found in Fixodent created a risk for copper deficiency that would lead to neurological complications. During his Daubert hearing, the plaintiff’s expert cited existing research, but only research that showed the connection between zinc and copper deficiency. In terms of forming the causal link between Fixodent’s zinc levels and neurological disorders, the expert could only hypothesize based on his inference from the more general research.

The 11^th Circuit was not convinced that the expert’s proposed testimony was reliable, and found that his testimony was properly excluded during trial. Without established research to connect the specific product to the harm suffered, the plaintiff’s expert needed more than just a theory or untested hypothesis. In regards to the particular theory advanced by the plaintiff’s expert, the Court wrote, “Taking everything together, there is enough data in the scientific literature to hypothesize causation, but not to infer it. Hypotheses are verified by testing, not by submitting them to lay juries for a vote.”

11 Circuit Disallows Expert Testimony

Affirming the trial court’s decision to exclude the expert testimony, the 11^th Circuit supported its decision by writing, “Because these experts have failed to demonstrate the primary methods for proving [that] the zinc in Fixodent causes [neurological injury], their secondary methodologies, including plausible explanations, generalized case reports, hypotheses, and animal studies are insufficient proof of general causation. This latter evidence could mislead the jury by causing it to consider testimony that was insufficient by recognized primary methodologies to prove [that] using Fixodent causes [neurological injury].”

Even though the expert witness theory was based on generally accepted science the particular factual inference was not, and, as such, the plaintiff’s expert could not present his opinion during trial. Although the exclusion of the expert witness effectively dismantled the plaintiff’s lawsuit, the 11^th Circuit could not justify allowing opinion that was not based on scientific study. The Chapman case serves as an important example of why expert witnesses must be able to support their testimony with reliable and relevant scientific study.

Expert Witness Testifies to Inadequate Health Service During Jail Lawsuit

Monterey County, California is embroiled in a legal dispute over the condition of its prison systems with plaintiffs alleging that prison conditions and mental health treatment services are well below levels required by federal law. Last week, a federal judge heard expert witness testimony that argued the inmates filing the lawsuit against Monterey County Jail suffered from substandard conditions that warranted a class-action claim against the prison system.

Monterey County Jail Inmates Sue Prison

The legal troubles for Monterey County Jail and its health contractor California Forensic Medical Group (CFMG) started in May of 2013 when five inmates filed a lawsuit due to allegedly unsafe and poor conditions of their confinement. Over the last year, the number of inmates joining the lawsuit has risen to 21, and attorneys representing them have joined with the American Civil Liberties Union (ACLU) to request the lawsuit become a class-action on behalf of all current and future inmates.

In a 30-page complaint, attorneys for the aggrieved inmates claimed that Monterey County Jail and CFMG failed to provide adequate inmate medical and mental health care, and that conditions in the prison are not in compliance with the Americans with Disabilities Act (ADA). Inmates complain of overcrowding and inadequate facilities to handle the prison population’s mental and physical health needs. To support their legal position that conditions in Monterey County Jail warranted a class-action lawsuit, plaintiffs presented a report by Dr. Mike Puisis, a medical doctor who criticized the Monterey Jail health facilities.

Medical Expert Witness Critical of Monterey Jail

As part of his expert witness report, Dr. Puisis examined medical records of 29 inmates at Monterey County Jail, none of whom were plaintiffs to the litigation. Dr. Puisis, who was agreed upon as one of four neutral experts by both parties in the early stages of the litigation, presented expert analysis of the medical history of each inmate, and argued that Monterey County Jail committed “egregious missteps” that could result in a harmful situation if not corrected. In Dr. Puisis’ expert opinion, Monterey County Jail and CFMG fail to provide the most basic level of medical health services as required by law, and inmates in the prison system are in danger of having inadequate care.

Michael Freeman, an attorney for the plaintiffs, reinforced the need for a class-action lawsuit citing Dr. Puisis’ testimony, saying, “This is not a theoretical case, this is not a made up case, these are not inmates seeking luxuries for the jail. This is about serious failings in the medical and mental health care system there and the consequences of people being seriously injured, including death.” Defense attorneys, however, disagreed and argued that Dr. Puisis’ expert testimony was developed to push an agenda rather than provide relevant evidence in the lawsuit against Monterey County Jail.

Defense Attorneys Object to Prisoner’s Expert Witness

Attorneys representing Monterey County Jail and CFMG objected to the use of Dr. Puisis’ expert witness report because of the way in which he gathered his data and articulated his opinions. At primary issue were the medical records of the 29 non-plaintiff inmates that Dr. Puisis relied on in generating his report. Defense attorney Peter Bertling argued the report was filled with factual errors, but in order for the defense to attack those errors it would need access to confidential patient personal health information that would prejudice CFMG.

Pointing to inconsistencies between Dr. Puisis’ report and a report by Dr. Robert Cohen, another expert cited by the plaintiffs, Bertling also found Puisis’ expert opinion unconvincing, saying, “Dr. Puisis is effectively interjecting his personal preferences as the governing framework for correctional medicine in lieu of Title 15. He entirely disregarded this assignment and seized the opportunity to impose a personal agenda with his review.” Arguing that Dr. Puisis’ expert report not only inappropriately relied on confidential health records, but was also not relevant to the case, Bertling and the Monterey County defense team requested Judge Paul Sing Grewal exclude Puisis’ testimony from the trial.

Judge Grewal will make a ruling on the admissibility of Dr. Puisis’ expert witness testimony and whether or not to grant the plaintiffs’ request for a class-action sometime in the next week.

Firearms Expert Witness Testifies in Wisconsin Murder Trial

Last week, a Wisconsin Rapids, WI judge sentenced Joseph Reinwand to life in prison after a jury found him guilty of murdering Dale Meister in 2008. The trial concluded a six-year investigation and prosecution, and featured convincing expert testimony from a firearms analyst taking the stand for the prosecution.

Joseph Reinwand Convicted of First-Degree Murder

Joseph Reinwand was convicted of first-degree intentional homicide for the 2008 shooting of Dale Meister. The two men were connected through Reinwand’s daughter, with whom Meister was embroiled in a bitter custody dispute over a daughter the two shared, and apparently had a contentious relationship prior to Meister’s death. According to prosecutors, Reinwand visited Mesiter in March, 2008 with the premeditated intent to murder him, and did so by shooting him multiple times in the chest.

Throughout the trial, prosecutors called several witnesses, many of whom testified that Reinwand had threatened to kill Meister on several occasions and frequently argued with the father of his granddaughter. Key among the witnesses against Reinwand was a firearms expert who testified to jurors that bullets extracted from Meister came from a gun that the defendant possessed at the time of the murder.

Firearms Expert Testifies for Prosecution

Recognizing the need for hard evidence to tie Reinwand to the murder weapon, prosecutors called William Newhouse, a firearms and tool markings expert who retired after a career working for the Wisconsin State Crime Lab. Newhouse was first tasked with analyzing bullets taken from Meister’s body and a cartridge taken from his couch and comparing them to an unfired bullet that was recovered from Reinwand’s garbage during the investigation. Newhouse testified to the jury that the bullets were identical.

Going further, Newhouse’s expert testimony connected the bullets from Meister and Reinwand’s garbage to a handgun that several witnesses had seen in the defendant’s possession prior to the murder. According to Newhouse, the bullets had unique characteristics that could only have come from a Jennings handgun made between 1983 and 1985 – the same type of weapon that people had seen with Reinwand or in places where he had access. Additionally, Newhouse was able to match a piece of a handgrip that was found in Reinwand’s truck with a Jennings handgun, and strengthen the evidence that the defendant had been connected to the weapon that killed Dale Meister.

Defense attorneys for Reinwand did not present an expert witness to counter the physical evidence against him, but did press Newhouse on cross-examination about the method he applied to connect a handgun fragment to the same Jennings model possessed by the defendant.

Wisconsin Man Sentenced to Life in Prison

Joseph Reinwand declined to take the stand to testify in his own defense, but throughout the trial defense attorneys questioned the validity of the prosecution’s witnesses against him. Pointing out that the threats issued by Reinwand were vague and second hand, and reminding jurors that DNA evidence was not able to place the defendant at the scene with a high degree of certainty, Reinwand’s defense strategy was to undercut the strength of the evidence against him.

Upon conclusion of the trial, jurors took less than two hours to convict Reinwand, and Wood County Circuit Judge Greg Potter delivered a life sentence without possibility of parole only days after the guilty verdict was announced. Reinwand, who is 55, requested a sentence review after 20 years, but with the weight of evidence pointing to a premeditated and ruthless shooting, Judge Potter denied the request in favor of a life sentence without further consideration.

Evidence uncovered during the investigation of Reinwand suggests that he may have had a hand in the 1984 shooting death of his former wife. Prosecutors representing the county Reinwand lived in at the time of the 1984 death have filed a charge of first-degree murder in that case, and, despite the life sentence, it is likely a second murder trial will take place unless he pleads guilty.

Judge to Consider Psychology Expert Witnesses in Vanderbilt Rape Trial

As the rape trial of two former Vanderbilt University football players will begin in a Tennessee courtroom next week, the fate of testimony from two psychology expert witnesses on behalf of the defendants has yet to be decided by the presiding judge. Judge Monte Watkins has agreed to hear the defense expert testimony away from the jury, and will rule on how much of it, if any, the experts are allowed to say in open court.

Vanderbilt Ex-Football Players Accused of Rape

Former Vanderbilt football players Brandon Vandenburg and Cory Batey are facing charges for the rape of Vandenburg’s unconscious 21-year-old girlfriend in June of 2013. Vandenburg, Batey, and two other former members of the team who have yet to go to trial are accused of dragging the young woman to a dorm room inside Vanderbilt’s Gillette Hall and raping her while she was drunk and unresponsive. All four athletes were kicked off the football team when the allegations became public, and they face significant jail time on five counts of aggravated rape and two counts of aggravated sexual battery.

Vanderbilt Rape Defendants Petition for Expert Witness Testimony

During the pre-trial process, defense attorneys for Brandon Vandenburg submitted for approval planned testimony by a psychology expert witness who argued the young man was intoxicated and did not have control over his behavior. Dr. Stefanie Stolinsky, a forensic psychologist, produced an expert witness report that argued Vandenburg was too drunk to know what was happening on the night his girlfriend was raped, and therefore could not form the necessary intent to commit the crime.

Although no blood alcohol test was performed to verify the Defendant’s level of intoxication, Dr. Stolinsky pointed to other evidence that suggested Vandenburg could not control his actions, including: witness statements corroborating his account that he was severely intoxicated, video evidence that showed he needed help getting his girlfriend out of his car and into the dorm room, images of him stumbling and swaying as he walked, and evidence that he vomited in the bathroom due to the alcohol he consumed. If successful, Dr. Stolinsky’s testimony would serve as a partial defense to the charges Vandenburg faces.

Defense attorneys for Cory Batey also requested the court allow a psychology expert witness who will speak to the young man’s state of mind at the time of the alleged sexual assault. Dr. James Walker, a neuropsychologist who works for Vanderbilt, has been retained by Batey to determine whether or not the Defendant was mentally incapacitated at the time of the incident, and to further testify about his ability to understand the trial process at all. As the details of Dr. Walker’s testimony are not known, prosecutors would likely ask for a delay in the trial to prepare a counter-expert if Judge Watkins allows Walker to take the stand.

Vanderbilt Defense Expert Witnesses Target Intent to Commit Rape

Both expert witnesses will argue that the two defendants lacked the requisite intent to commit aggravated rape or aggravated sexual assault. In Vandenburg’s case, it is important to note that intoxication, particularly voluntary intoxication, is not a perfect defense because even if jurors agree with Dr. Stolinsky’s expert analysis, Brandon could still be found guilty of rape. The defense is primarily designed to lessen the severity of the charges against him, which in turn would lessen his punishment. In Mr. Batey’s case, if Dr. Walker determines that he was incapable of processing his actions on the night of the alleged rape or that he is unfit to stand trial, prosecutors would need to call a psychology expert witness to provide a counter-analysis that demonstrates the contrary or be forced to reevaluate the charges against him.

Prosecutors Move to Suppress Psychology Expert Witness

Prosecutors made a pre-trial motion to disallow the testimony of Dr. Stolinsky submitted by Vandenburg’s defense team, saying that the psychologist did not conduct a proper analysis to reach the conclusion that the Defendant was too intoxicated to control himself. Without a breath test, or some other scientific measure of blood alcohol content, prosecutors argued that Stolinsky’s expert witness does not have the necessary foundation in science or reliable methodology to speak to Vandenburg’s level of intoxication and, as such, should not be allowed on the stand.

Judge Monte Watkins declined to suppress the expert witness testimony of either psychologist, but did not extend the invitation for them to speak to jurors during trial. Instead, the Judge will hear testimony from each expert in a private session with only the parties present, and determine if either has met the criteria required for reliable and relevant expert testimony. Expert witness testimony must be supported by scientific research and methodology, and must apply to the issues central to the case before jurors can use it to make a guilt determination. Judge Watkins will hear the proposed testimony from each defendant’s expert witness next week before he makes a final decision about whether or not either will be able to take the stand during the high profile rape trial.

Voter ID Lawsuit Expert Witness Draws Criticism of DOJ

A transcript of testimony from a Department of Justice expert witness created a stir last week due to statements from the expert that argued voter ID laws disproportionately affect African Americans because minorities tend to be less educated and less sophisticated voters. The testimony came during the July hearing of a civil rights lawsuit filed by the DOJ and the National Association for Advancement of Colored People (NAACP) alleging that North Carolina’s voter ID law violates the constitution by discriminating against black voters.

DOJ and NAACP Challenge Voter ID Law

In July, the DOJ and NAACP filed a federal lawsuit against North Carolina’s voter ID laws arguing that black and other minority voters are negatively impacted by regulations that prevent same-day voter registration and require government issued identification in order to vote. Under the Equal Protection Clause of the constitution, states cannot pass laws that unfairly inhibit minorities from exercising their rights, such as the right to vote. Even laws that do not specifically target minorities can be unconstitutional if the effect on minorities is disproportionately negative when compared to the effect on white Americans.

The longstanding debate on voter ID laws has divided sharply along party lines with Republican lawmakers arguing voter regulations are necessary to prevent fraud and Democrats countering that such laws are discriminatory in nature because minority voters are most affected by the restrictions. With minority voters almost exclusively voting Democrat, political interests underlie the stated arguments and ensure that compromise on the issue is highly unlikely, leaving resolution of the issue in the hands of the federal court system.

The North Carolina based federal judge who heard the case during its initial stages determined that the state’s voter ID laws did not violate the constitution, only to have the ruling reversed on appeal to the Fourth Circuit. Before settling the issue, the Supreme Court, as it did with similar laws in Ohio and Texas, stayed the 4^th Circuit’s order to repeal the law, meaning the voter ID restrictions in North Carolina will be in full effect until SCOTUS says otherwise.

Expert Witness Testifies to Black Voter Sophistication

During the July trial in a North Carolina federal court, Charles Stewart, a political science expert witness from MIT hired by the Justice Department, testified that terminating the ability to register and vote on the same day affected black voters disproportionately in part because they are less sophisticated by saying, “Understanding within political science, that people who register to vote the closer and closer one gets to Election Day tend to be less sophisticated voters, tend to be less educated voters, tend to be voters who are less attuned to public affairs. People who correspond to those factors tend to be African Americans, and, therefore, that’s another vehicle through which African Americans would be disproportionately affected by this law.”

Going further, Dr. Stewart went on to speak to the impact that voting laws, including voter ID requirements, have on black populations by saying, “People who have lower education and who have less – that pay less attention to public affairs will have greater problems figuring out how to vote, [and]… My understanding is that African Americans have lower levels of education in North Carolina, and I know from the public opinion work that African Americans report that they paid less attention to public affairs on average than white voters do probably because of the differences the education.” According to Dr. Stewart’s testimony, then, differences in education and less attention to public affairs make minority populations in North Carolina less sophisticated voters which means it is more difficult for them to overcome voter regulations, supporting the DOJ’s argument that voting restrictions unconstitutionally burden minorities and therefore cannot be enforced.

Voter ID Lawsuit Expert Witness Spurs Debate

Although Dr. Stewart’s comments cited social factors as the source of lower sophistication among black voters, opponents of the voter ID lawsuit criticized the political scientist’s testimony as discriminating against the very population the DOJ is trying to protect. With the constitutionality of voter restriction legislation debated both within and without federal courtrooms, expert witnesses like Dr. Stewart not only offer testimony arguing against, or for, enhanced voting regulation, but provide interesting points of debate to legal and social theorists, both academic and casual, across the country.

Medical Expert Witness Testifies in Nuclear Protest Trial

Last week, four nuclear activists from Cape Cod were convicted of trespassing on property owned by the Pilgrim Nuclear Power Station during a 2013 Mother’s Day demonstration. Although the charge was relatively minor, the short trial provided the opportunity for a medical and environmental expert witness to condemn Pilgrim Nuclear for creating a hazardous living situation to Cape residents and wildlife.

Nuclear Activists Accused of Trespassing

Cape Cod residents Diane Turco, Sarah Thacher, Mary Conathan, and Susan Carpenter, who range in ages from 60-80, were part of a permissible Mother’s Day rally protesting the presence of the Pilgrim Nuclear Power Station that turned illegal when the five women defied an order to stay off the plant’s property. The defendants, part of a group known as the Cape Downwinders, crossed the Pilgrim Nuclear property line to plant daisy’s and draw attention to their cause by being arrested for trespassing.

After police obliged with arrests, the four Downwinders were brought to trial in a Cape Cod courtroom under accusation of trespass. While the prosecutors presented a short and efficient case, calling just two witnesses who saw the trespass occur, defense attorneys for the four women took the opportunity to explain that the four were justified in their actions because the Pilgrim Nuclear Power Station represents a danger to the Cape Cod community.

Testifying in their own defense, the four women stated that their activism against nuclear power inspired them to protest an environmental hazard polluting Cape Cod, and their actions were necessary to draw attention to the immediate threat created by the power station. Arguing that their trespass was justified because it drew attention to the “continuous blasphemy” of the plant’s operation, the defendants claimed that their act of civil disobedience was validated as an effort to halt an ongoing risk from operating in the Cape Cod region. To reinforce their defense, the defendants called upon a medical and environmental expert witness who flew to the US from Australia to testify about the harm created by Pilgrim Nuclear.

Environmental Expert Witness Testifies in Nuclear Activist Trial

Anti-nuclear activist and author, Dr. Helen Caldicott, took the stand on the final day of the Downwinders’ trial to inform the court of the negative effect Pilgrim Nuclear has on the Cape Cod environment. Dr. Caldicott testified that the concern over a large-scale meltdown at Pilgrim Nuclear is not the only issue that should be creating worry, but that residents should also be wary of the lingering threat of cancerous chemicals seeping into the surrounding area. Saying, “If I had young children, I would not live on the Cape … and if I was a pediatrician here, I would advise parents to leave. It’s a very dangerous situation,” Caldicott, a former educator at Harvard Medical School who is also an environmental specialist, warned Cape Cod communities that the constant seepage of nuclear by-product into the region was putting residents at risk of cancer.

Further, Dr. Caldicott’s expert testimony attacked the efforts of state health officials to neutralize risks via distribution of potassium iodide pills by calling the medication a placebo that would not keep residents safe from the nuclear waste crated by the Pilgrim station. Throughout her testimony, Dr. Caldicott detailed the way nuclear power plants generate waste that cannot be contained despite efforts by the company or state officials.

Dr. Caldicott was initially precluded from offering her testimony by Judge James Sullivan who was concerned that her expert testimony would turn the trial into a forum for environmental activism and detract from its purpose. Following testimony from another medical expert witness, Dr. Richard Chapp, the former head of the Massachusetts Cancer Registry, who told the court that the higher rates of thyroid cancer in the towns neighboring the Pilgrim Nuclear Power Station were not merely coincidence, Judge Sullivan was persuaded to allow Dr. Caldicott to testify about the potential risks created by the plant. Sullivan allowed Caldicott to add her expert opinion to the record in an effort to justify the defendants’ protest against Pilgrim Nuclear, much to the frustration of lead prosecutor, Amanda Fowle, who called the defense tactics “a circus.”

Environmental Activists Convicted of Trespass

Despite the compelling testimony about the environmental risks created by Pilgrim Nuclear Power Station by the defense team’s expert witnesses, Judge Sullivan ultimately found the four Downwinders guilty of trespass. Three of the women were sentenced to spend 30 days in jail, pay $50 to the court, and make continuous payments of $50 per month to the probation department for the next year. The fourth, a first time offender, received a $100 fine for her role in the protest.

Considering the national attention brought to Dr. Caldicott’s environmental expert testimony, the four women succeeded in spreading their message, legal consequences notwithstanding.

Expert Witnesses Testify in Oscar Pistorius Sentencing Hearing

The South African murder trial of former Olympian Oscar Pistorius came to a close this week when Judge Thokozile Matilda Masipa sentenced the track start to 5 years in prison for the shooting death of his girlfriend, model Reeva Steenkamp. Mr. Pistorius was found guilty of culpable homicide in September, and over the last several weeks, expert witnesses have testified during his sentencing trial in order to help Judge Masipa determine the appropriate punishment.

Pistorius Guilty of Culpable Homicide

After a trial that dragged through the summer and featured headline grabbing expert witness testimony, Oscar Pistorius was found guilty of culpable homicide by Judge Masipa in September. The South African judge determined that Pistorius was criminally negligent when he fired four shots through the bathroom door of the home that he and Steenkamp shared. Although Judge Masipa was not convinced that Pistorius had acted with the level of intent required to find him guilty of murder, she was not willing to exonerate him on all charges.

With his verdict passed down, Pistorius underwent a lengthy sentencing hearing so Judge Masipa could find the appropriate punishment for his crime. In South Africa, culpable homicide, which is similar to involuntary manslaughter in the United States, carries a possible sentence of 15-years. Prosecutors, who had vehemently argued Pistorius killed Ms. Steenkamp knowingly during the course of an argument, pushed for a 10-year prison term. Defense attorneys countered that Pistorius should avoid jail altogether, and spend 3-years under house arrest.

Pistorius Defense Team Calls Psychology Expert Witness

During the sentencing hearing, Pistorius’s defense attorneys called upon psychology expert witnesses to testify that the former Olympian deserved a merciful sentence because of his mental and emotional fragility. Psychologist Lore Hartzenberg, a professional who has worked with Pistorius over the last year, took the stand and testified to the court that the defendant was a “broken man who has lost everything.” Ms. Hartzenberg acknowledged the pain that Pistorius caused by killing Ms. Steenkamp, but pointed out that the tragedy had taken, “His moral and professional reputation, his friends, career and self-worth,” making him a poor candidate to receive a harsh prison sentence. In Ms. Hartzenberg’s expert opinion, Pistorius had suffered sufficiently for his actions – which he maintains were taken under the mistaken impression his home was being raided by an intruder.

Echoing Ms. Hartzenberg’s call for leniency was state social worker Joel Maringa who was called on as a punishment expert witness. According to Mr. Maringa, Pistorius’s “behaviour could be successfully modified within the community context,” and did not require a prison sentence. Proposing that the convicted track star be placed under house arrest and ordered to community service, Mr. Maringa testified that Pistorius suffered from PTSD due to the shooting and was best served by a rehabilitation that involved him with his community and family rather than one spent in prison.

Prosecutors reacted strongly to the combined efforts of the defense team’s psychology expert witnesses, and countered that the harm Pistorius had caused combined with his implausible explanation for the events warranted a prison term of no less than 10-years.

Oscar Pistorius Sentenced to Five Years in Prison

After weeks of waiting, Judge Masipa delivered a sentence that sought a balance between leniency and excessive punishment, and arrived a prison term of 5-years. Writing that she felt the sentence was “neither too light nor too severe,” Judge Masipa stressed that the purpose of the sentence was not to take retribution on Pistorius for his actions, but to determine a punishment that “was about achieving the right balance — proportionality.”

Critics of the sentence allege that Mr. Pistorius skin color and social status contributed significantly to his relatively light punishment. Further raising the ire of many South Africans is the fact that the disgraced athlete may be eligible to serve a majority of his sentence under house arrest after he is evaluated by corrections officials after 10-months in a prison hospital. Notably absent from the voices of dissent were Ms. Steenkamp’s family, who released a statement expressing their belief that justice had been served. Mr. Pistorius will not appeal the sentence.

High Profile Cyanide Poisoning Murder Trial will Feature Expert Testimony

A high profile murder case of a former University of Pittsburgh medical researcher who is accused of poisoning his wife will feature opposing expert witnesses who will debate the circumstances of the case. Dr. Robert Ferrante will be tried for the April 2013 death of his wife who he allegedly killed with cyanide, and, with medical evidence key to the outcome, the trial figures to be a battle of expert testimony.

Medical Researcher Accused of Cyanide Poisoning

Dr. Ferrante is charged with killing Autumn Marie Klein, his 41-year-old wife who was carving a path for herself as a leader in the field of neurology and obstetrics, by administering a fatal dose of cyanide mixed into an energy drink. Dr. Klein collapsed in her home on April 17^th, 2013, from an apparent stroke, but further investigation by police and medical examiners uncovered evidence that suggested her death was not accidental.

Upon being transported to a local hospital, the treating doctors noticed Dr. Klein’s blood was bright red, which is consistent with the fatal effects of cyanide poisoning. With blood tests raising suspicions, police were keyed to Dr. Ferrante when it was revealed that he made a purchase of over 1 pound of cyanide with his University of Pittsburgh research account – an unusual transaction for someone in Ferrante’s position.

Between the blood tests and the unusual cyanide purchase, police connected the dots to Ferrante, and arrested him in July of 2013 while he was traveling home from a conference in Florida.

Prosecutors Look to Medical Experts to Point to Cyanide Poisoning

Prosecutors have summoned several expert witnesses to comment on the presence of cyanide in Dr. Klein’s blood, and whether or not Dr. Ferrante, who is a leading researcher on ALS at University of Pittsburgh, would have any reason to use the toxin during the course of his work. The crux of the prosecution’s case will center on connecting the cyanide in Dr. Klein’s blood to: 1) the cause of her death, and 2) Dr. Ferrante.

In addition to the blood tests conducted at the hospital where Dr. Klein was admitted, prosecutors will call toxicology expert witness Christopher Holstege who plans to narrate a presentation examining the sound of Dr. Klein gasping for air in the background of Ferrante’s 911 call. Holstege’s expert testimony will connect the noises Dr. Klein made while fighting for life with the sound of someone suffering from cyanide poisoning. Other experts will be used to tell jurors that Dr. Ferrante’s work did not require cyanide toxin, helping prosecutors connect the dots from Ferrante’s behavior to Klein’s unexpected death.

Defense Strategy Relies on Expert Witnesses

Although the defense team representing Dr. Ferrante has not made public a strategy to respond to the allegations against him, given the medical evidence mounting, the defense will need to look to expert witnesses for assistance. Law professor John Burkoff, who has become an expert on the Ferrante case, told the Associated Press, “If the defense doesn’t have some credible medical evidence to dispute the prosecution’s evidence, they’re in pretty bad shape. The biggest thing that makes me curious is what expert testimony the defense will have on the cyanide evidence. If you find there’s a substantial amount of cyanide in her system, and that he had access to cyanide, well, that’s pretty much it.”

With the need for medical expert witnesses dramatic, Ferrante’s defense team has turned to renowned forensic pathologist, Cyril Wecht. Dr. Wecht is the 83-year-old former Allegheny County coroner who has consulted on examination of famous deaths including those of Elvis Presley and JonBenet Ramsey. Although what Dr. Wecht plans to say during his expert testimony has not yet been revealed, his presence in the case lends credibility to Ferrante’s efforts to defend himself against the murder charge.

The Ferrante murder trial opens this week, and is expected to carry on for at least a month as both sides hammer it out with physical evidence and medical expert witness testimony.

Experts Clash over Suspect Confession in Murder Trial

Two expert witnesses clashed over the validity of a suspect’s confession during a murder trial in New Jersey. Prosecutors and defense attorneys presented psychology expert witnesses to debate whether or not police coerced a false confession out of suspect David Granskie Jr. during the investigation into the death of his father’s girlfriend, Carolyn Stone.

Defense Calls False Confession Expert Witness

On May 24^th, 2009, Carolyn Stone was murdered during a Memorial Day event at the home of her boyfriend, David Granskie Sr. Although suspect Gary Wilson immediately confessed to murdering Stone using a cinder block without assistance or involvement of accomplices, Granskie Jr. was investigated for participating rape and suggesting that the victim be murdered in order to cover up the crime. While being detained by police Granskie was videotaped admitting that he was part of the sexual assault and present for Stone’s murder, and with his confession as a centerpiece, prosecutors developed and pursued a murder case against Granskie that finally came to court last September.

Defense attorneys for Granskie targeted the validity of the confession by calling Dr. Clarence Watson, a psychologist expert witness who specializes in identifying false confessions coerced during aggressive police interrogation. Dr. Watson testified that Granskie’s admission was not legitimate due to the defendant’s battle with heroin withdrawal. Saying that Granskie’s struggle with addiction created significant anxiety and stress, Watson claimed that the defendant simply wanted to accommodate police officers by telling them what they wanted to hear.

Calling the information in the confession “contaminated” by the police’s use of pressure and leading questions that directed Granskie to the answers that would implicate him in Stone’s death, Dr. Watson expressed doubt that the admission of guilt was genuine. During his expert testimony, Watson pointed out several examples of pressure tactics, including:

When Granskie said he didn’t know how many times Stone was hit with the cinder block, police forced him to provide a number. When Granskie responded incorrectly with “10”, police accused him of lying.
In several situations where Granskie responded with “I think,” or “I don’t know,” or another vague answer, police would not relent and continue to pressure him until he provided a definitive answer that fit their theory of the crime.
When Granskie claimed he did not rape Stone, police told him that he did, and, after several suggestions that he engaged in sexual intercourse with Stone and then moved her body to the site of the murder, Granskie relented and agreed.

Dr. Watson reinforced his theory that Granksie’s confession was coerced by pointing to signs of heroin withdrawal throughout the interrogation. Granskie was fidgety and showed signs of bulging veins that Watson argued should have tipped police off to a vulnerable condition. Dr. Watson’s expert testimony concluded by telling jurors that in his opinion Granskie was pressured into a false confession, striking a blow to the prosecution’s key evidence in the case.

Prosecutors Call False Confession Rebuttal Expert Witness

To rebut the testimony of Dr. Watson, prosecutors called a false confession expert witness of their own: Dr. Louis Schlesinger. Contrary to Watson’s claim that Granskie’s admission was the result of police pressure, Dr. Schlesinger argued that there was no evidence that suggested the police took improper action or that Granskie’s confession was invalid. Schlesinger attacked Watson’s expert testimony on four key points:

Granskie Jr. was not suffering from symptoms of heroin withdrawal: During his testimony, Dr. Watson pointed to physical symptoms of heroin withdrawal that Granskie appeared to be suffering, but Dr. Schlesinger countered that none of those symptoms reached the level of “clinically significant distress.” While Granskie displayed some minor discomfort, Schlesinger attributed his demeanor and mannerisms to the stress anyone accused of murder would display.
Granskie did not use heroin two days before the murder: key to Watson’s claim that Granskie’s heroin withdrawal influenced his confession is the time of the defendant’s last use of the drug. According to Schlesinger, Granskie did not use heroin immediately before the murder or the subsequent investigation.
Granskie did not ask to be released after the interrogation was over: When the confession ended, Granskie simply asked for a cigarette rather than request his release. According to Schlesinger’s expert testimony, this behavior indicates the defendant was not simply appeasing police in hopes of being allowed to go home.
False confessions are usually only made for people who fall into three categories: Dr. Schlesinger pointed to research that suggests only mentally retarded, juvenile, and mentally ill defendants are prone to making false confessions during police interrogation, and argued that since Granskie didn’t fall into any of those, it is unlikely he was pressured into a lie.

Defense attorneys objected to Schlesinger’s testimony because he was improperly primed about the content of Dr. Watson’s argument prior to taking the stand, but the trial judge allowed the prosecution to proceed providing that jurors would be informed of the tampering. Granskie’s trial is expected to wrap up within the next week, and with the confession central to the evidence, significant importance will be placed on the dueling testimony of the psychology expert witnesses who debated its validity.

Expert Witness Testimony in Utah Police Shooting Hearing

A former Utah police detective was cleared of all manslaughter charges this week stemming from a 2012 shooting of an unarmed woman due to insufficient evidence to prosecute. During a three day hearing last week, prosecutors called forensic and police expert witnesses to argue that Shaun Cowley acted inappropriately when he opened fired during a drug investigation, and should therefore be charged with manslaughter.

Utah Detective Fatally Shoots Unarmed Woman

In 2012, Shaun Cowley, then a detective with Utah’s West Valley county police department, investigated a potential drug deal involving 21-year-old Danielle Willard. Cowley and his partner, Detective Kevin Salmon, approached Ms. Willard’s vehicle in front of a residence that West Valley PD suspected was used for drug and weapon sales. According to Cowley’s testimony, as the two officers approached Willard’s car to make contact with her she put a black substance in her mouth, causing him to draw his weapon as a safety measure. When Willard was uncooperative in opening the door, Cowley returned to the police cruiser for a pry bar to break into the vehicle. With his back turned, Cowley heard the sound of Ms. Willard’s vehicle accelerating towards him in reverse, which caused him to fire two fatal shots.

Throughout the investigation into Cowley’s use of fatal force, the former detective has maintained that he believed his life, and the life of his partner, were in danger. Cowley testified to investigators that he had reason to believe Ms. Willard was willing to kill the two officers with her vehicle, causing him to make a split-second decision to defend himself. Although Salmon was not hit by Willard’s vehicle, Cowley was grazed and suffered a minor knee injury.

Prosecutors sought a charge for 2^nd degree felony manslaughter alleging Cowley used unreasonable force against Ms. Willard, and called several forensic and police use-of-force expert witnesses to bolster the case.

Prosecutors Rely on Experts to Prove Excessive Use of Police Force

Last week, the parties presented evidence and witnesses at a preliminary hearing that would determine whether or not Cowley could face charges for 2^nd degree manslaughter – a charge that carries up to 15-years in prison if a defendant is convicted. The judge allowed both sides to submit physical evidence and witness testimony, and prosecutors took full advantage by calling expert witnesses to support the state’s key argument that Cowley was not in danger of being hit by Willard’s car. By showing that the officer was not at risk when he opened fire, prosecutors hoped to convince the judge that Cowley acted inappropriately and could therefore be charged with 2nd degree manslaughter.

Prosecutors first called forensic scientist Michael Haag who analyzed the scene and testified that Cowley was not standing directly behind the car at the time of the incident, casting doubt on the sincerity of his claim that he feared for his life. Mr. Haag based his expert testimony on the trajectory of the shots that Cowley fired at Willard’s car, arguing that, in his estimation, the bullets did not come from directly behind the vehicle. Prosecutors argued that the bullet trajectory suggested that Cowley was standing to the side of Ms. Willard’s car, which not only contradicted the defendant’s testimony, but also meant that he was not in danger at the time of the shooting.

To further the argument that Cowley acted inappropriately, prosecutors also called Salt Lake City police Detective Chris Kotrodimos as a police procedure expert witness. Detective Kotrodimos testified that neither Cowley nor his partner, Kevin Salmon, followed proper procedure during the stop. By drawing their weapons, Kotrodimos argued, the two police officers had unnecessarily escalated the incident to the point where deadly force was a possible outcome – an unacceptable maneuver given the circumstances.

Defense Team Attacks Prosecution Expert Witnesses

In response, Cowley’s defense attorneys launched an attack on the validity of the prosecution’s expert witness testimony. Calling Mr. Haag’s forensic analysis a “guess,” defense attorneys forced the prosecution’s expert to concede that the trajectory of the fatal bullet could not be identified with absolute certainty. Moving on to Detective Kotrodimos, the defense pointed out that he had read Cowley’s file before analyzing the case, a fact that may have clouded his interpretation of the incident and improperly influenced his expert testimony.

Defense attorneys went on to argue that former detective Cowley acted in a span of 2 – 3 seconds with the victim’s car approaching him at a rapid speed, and his reaction was appropriate given the circumstances. Ultimately, the judge found the prosecution expert witnesses to be insufficient, and agreed with the defense that Shaun Cowley did not use excessive police force in the shooting of Danielle Willard. Mr. Cowley has been cleared of all charges stemming from the incident.

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About Colin Holloway, Attorney at Law