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.

Scales, law books

Murder Case against Aaron Hernandez Wraps Up with Expert Testimony

The high-profile criminal trial of former New England Patriot Aaron Hernandez is wrapping up in Boston, and prosecutors ended their case with testimony from medical and forensic expert witnesses called to connect Hernandez to a 2012 fatal shooting. Facing the daunting task of prosecuting a 5-year-old murder without substantial physical evidence linking the defendant to the crime, prosecutors have built their case largely on witness testimony, and called medical and forensic experts to tie all the information together in an effort to secure a conviction.

Aaron Hernandez Faces Double Murder Charge for 2012 Shooting

Hernandez, who is currently serving a life sentence for the 2013 murder of semi-professional football player Odin Lloyd, faces an additional murder conviction for his alleged role in the 2012 drive-by shooting of Daniel de Abreu and Safiro Furtado who died after suffering multiple gunshot wounds outside of a Boston nightclub. Hernandez is also facing charges of witness intimidation for shooting his former friend and marijuana dealer who claims to have witnessed the murder in an effort to keep him quiet.

Although the prosecution called several witnesses who associated with Hernandez either the night of the murders or during the immediate aftermath to connect him to the shooting, many of them were exposed as having faulty or incomplete memories, risking the chances of earning a conviction. Boston prosecutors have supplemented their reliance on witness testimony with some circumstantial evidence, including text messages between Hernandez and his associates and even the defendant’s tattoos, but there is a lack of physical evidence which can secure a guilty verdict.

In an effort to complete the story of their case, prosecutors called expert witnesses to explain how the physical and forensic evidence suggests Hernandez killed the two victims.

Expert Witnesses Called for Forensic Testimony in Hernandez Murder Trial

Towards the end of its case, prosecutors seeking a double murder conviction against Aaron Hernandez called forensic expert Michael Haag to help recreate the crime scene for jurors. Haag spent his testimony going over crime scene photos with prosecutors to explain the bullet trajectory which supports claims that the shots were fired from a vehicle directly next to the victims’ BMW. Haag also supported the prosecution’s theory that five shots were fired by pointing to forensic evidence which matched and accounted for the number of bullets police recovered at the scene.

The state wrapped up its case by calling medical expert Dr. Katherine Lidstrom from the Massachusetts medical examiner’s office to discuss the fatal injuries suffered by each of the victims. During an emotional session which saw members of the victims’ families cry or leave the courtroom, Dr. Lidstrom explained that Furtado would have died instantly after being shot in the head, but evidence suggests that de Abreu likely suffered physical and emotional pain prior to his death. According to Dr. Lidstrom’s expert testimony, de Abreau’s chest cavity was filled with blood and he did not die immediately, but suffered for several minutes.

As prosecutors wrapped up their case with forensic and medical expert witnesses, they provided testimony which supports accounts from eyewitnesses who the state leaned on to build its case. Attorneys representing Hernandez responded to each witness with an effort to discredit their knowledge of the facts, and accused the prosecution of relying on emotions to sway jurors.

Hernandez Attorneys Criticize Expert Testimony for lack of Knowledge

Attorneys representing Aaron Hernandez challenged the prosecution’s forensic and medical experts for not having enough knowledge about the case and providing irrelevant testimony. Although the prosecution’s forensic expert theorized that five bullets were fired, defense attorneys cast doubt on his conclusion by having him admit a sixth could have been involved. This difference is important as Hernandez’s lawyers attempted to use it to discredit Haag and his testimony.

The use of a medical expert to explain the manner in which the victims died drew particular ire of the defense as well, with a lead attorney for Hernandez claiming Dr. Lidstrom’s testimony was more focused on swaying jurors’ emotions rather than providing evidence against the defendant. Saying the case was “high on emotion and low on evidence,” attorney Jose Baez told reporters that he believed the prosecution failed to meet its burden with substantial evidence. As the case against Hernandez wraps up, defense attorneys will need to focus their efforts on using evidence or counter-expert testimony to successfully discredit the prosecution’s case against an unpopular and unlikable defendant.

Scales, law books

Expert Witnesses Used During Trial of Dylann Roof

Dylann Roof has been convicted of murder for shooting nine black church parishioners in Charleston, South Carolina last year. Throughout the trial, prosecutors relied on a parade of expert witnesses to definitively connect Roof to the mass shooting and demonstrate that he was motivated by racial hatred. Roof faces a sentencing hearing in the coming weeks, and has announced through his attorneys that he will not use psychology expert witnesses to reduce his punishment.

Dylann Roof Convicted of Charleston Mass Murder

On June 17, 2015, Dylann Roof opened fire in a Charleston church during a prayer service and murdered nine black parishioners in a racially motivated mass shooting. After a brief manhunt, Roof was arrested and charged with 33 federal hate crimes when it became clear that he was a white supremacist who targeted the church with hopes of igniting a race war. In November of 2016, Roof was declared competent to stand trial, and the federal proceedings began in early December.

After a week-long trial, jurors needed only two hours to convict Roof of all 33 federal charges levied against him. Prosecutors built a meticulous case against the defendant, using not only his confession shortly after his 2015, but a collection of expert witnesses who evaluated the evidence and fortified the state’s case. Of the 33 charges, 18 carry the possibility of a death penalty, and prosecutors paid careful attention to developing a case which would not be questioned should Roof be sentenced to death during the next phase.

Prosecutors Use Expert Witnesses to Convict Dylann Roof

Early in the Dylann Roof trial, prosecutors called a GPS expert witness to support their claim that the defendant had been targeting the Mother Emanuel Church prior to his attack. J.D. Krull told jurors that the defendant’s GPS data indicated he visited Mother Emanuel at least three times prior to the June 17th shooting, suggesting that Roof premeditated his attack and planned his route. Prosecutors also called a ballistics expert witness to connect the .45-caliber Glock pistol that Roof purchased shortly before the shooting. Firearms expert witness James Green testified that investigators found 74 shell casings and dozens of bullet fragments at the scene which were connected to Roof’s gun.

Prosecutors also called FBI expert witnesses to discuss the defendant’s hate-filled manifesto which detailed his racial hatred of Hispanics, Jewish Americans, and African Americans and announced his intention to take violent action. FBI experts used information contained on USB drives found in Roof’s car which contained graphic images and racist content to show jurors that the defendant had engaged in a premeditated hate crime targeting black worshipers. FBI agent Tracy Sicks testified that Roof maintained a racially charged website which detailed his manifesto and the plan for the attacks on Mother Emanuel Church.

Prosecutors concluded their use of expert witnesses by having medical experts testify to the condition of the bodies and the cause of death. Jurors were shown graphic images of the crime scene and told by expert witnesses that the victims suffered multiple gunshot wounds consistent with the prosecution’s theory of a racially motivated hate crime.

Dylann Roof will not Call Psychology Expert Witnesses during Sentencing

Although he faces the death penalty for his conviction, Roof announced that he does not plan on calling psychology expert witnesses in an effort to avoid execution by explaining his pathology. During death penalty sentencing phases, prosecutors are charged with presenting aggravating circumstances which support execution while defendants are given the opportunity to present evidence of mitigating factors which can be used to reduce the sentence to life in prison. Attorneys for Dylann Roof have made it clear they intend to call mental health expert witnesses who could argue that the defendant suffers from paranoid schizophrenia, however, Roof recently submitted documents to the court which indicate he does not intend to use psychologists during the sentencing phase.

Following his conviction, the 22-year-old Roof formally requested that he serve as his own counsel for the duration of the trial, and denied the need for mental health expert testimony. A journal found in Roof’s car following his arrest indicated that the defendant was “morally opposed” to psychology because he says it is a “Jewish invention that does nothing by invent diseases and tell people they have problems when they don’t.” Dylann Roof has until January 3rd to change his mind about representing himself, and it is possible he will rehire his defense team and allow them to use a mental health expert to testify to mitigating circumstances. It is also possible that the judge will decide Roof lacks the mental capacity to act as his own lawyer even if he was competent to stand trial.

Gavel and Stethoscope on Reflective Table

New York Case Questions Years of Shaken Baby Expert Testimony

A New York appellate court recently called years of expert witness testimony on shaken baby syndrome into question by overturning a 2001 conviction due to insufficient scientific support for evidence supporting the prosecution’s case. Shaken baby syndrome prosecutions rely on expert witness testimony due to the medical science involved in connecting the victim’s injuries with the defendant’s actions, however, recent advances in shaken baby research suggest techniques experts have used for years may not be reliable.

New York Woman Challenges Shaken Baby Conviction

Rene Bailey was convicted of causing the death of a 2 ½-year-old child at her daycare after the child suffered a serious head injury while in her home. Prosecutors charged Rene with second-degree murder, and she earned a conviction on the strength of medical expert witnesses who told jurors that the child’s injuries were the result of being shaken. Rene maintained her innocence, arguing that the young girl suffered an unfortunate fall which caused the injuries. However, shaken baby expert witnesses rebutted the defense’s claim by saying such a scenario was impossible.

Bailey was convicted of the second-degree murder charge and has been serving her sentence ever since. However, early in 2014 attorneys specializing in appealing shaken baby convictions took interest in her case. Bailey’s new attorney believed that the child had suffered from a serious fall, and argued that the shaken baby expert testimony presented fifteen years ago has since been refuted by advances in medical science research. According to Bailey’s new defense team, headed by Adele Bernhard, if the evidence available now had been presented during the 2001 trial, Rene would not have been convicted.

New York Appellate Court Overturns Shaken Baby Conviction

Adele Bernhard and the rest of Bailey’s legal team focused their appeal on challenging established forensic expert testimony with new developments in medical science which question the certainty of shaken baby expert testimony that has been used since the 1970s. According to Bernhard, alternative explanations for the type of injuries suffered by the little girl in Rene Bailey’s murder case were too easily dismissed by prosecution expert witnesses during the 2001 trial, and current experts in forensic medicine have since acknowledged that children can suffer serious brain injury by falling.

In a surprising ruling, Judge James Piampiano agreed with Bernhard and overturned Bailey’s conviction by finding, “There has been a compelling and consequential shift in mainstream medical opinion since the time of the defendant’s trial.” On appeal by prosecutors, a four-judge panel of New York’s Fourth Department Appellate Division of State Supreme Court agreed with Piampiano’s ruling. The New York appellate court found that Bailey should be freed due to new scientific findings, writing, “Had this evidence been presented at trial, the verdict would probably have been different.”

Following the appellate rulings in her favor, Rene Bailey has been released from prison, and the long term future of shaken baby syndrome prosecutions in New York is uncertain.

Prosecution of New York Shaken Baby Cases Uncertain

In the process of overturning Rene Bailey’s conviction, the New York appellate court called years of expert witness testimony on shaken baby syndrome into question. For years, medical experts have connected three specific injuries — bleeding in the retinas, bleeding in tissue surrounding the brain, and swelling of the brain — to shaken baby syndrome, mostly in cases where there is not any other available evidence. Since the 1970s, medical experts have used the combination of these three injuries to eliminate all other possible sources of injury other than shaken baby, giving prosecutors strong evidence against defendants accused of shaking infants and toddlers.

Recently, however, forensic medical experts have argued that this combination of injuries can occur due to falls, and even question whether shaking a baby is sufficient to cause fatal injury without other head trauma. In light of new medical evidence, attorneys across the country are calling years of shaken baby expert testimony into question, suggesting that prosecutors will not have as clear a path to conviction in this type of case in the future.

West Virginia Sheriff Convicted for Excessive Force despite Expert Testimony

West Virginia Sheriff Convicted for Excessive Force despite Expert Testimony

A West Virginia Sheriff was recently found guilty of excessive use of force to deprive a suspect of rights after a trial that featured a use of force expert witness called by the defendant’s legal team. Although the defense was unsuccessful, the use of a police expert is a necessary element to trials involving police abuses as jurors may be unfamiliar with the standards of practice and limits of police authority.

West Virginia Sheriff Convicted of Excessive Force

Mark Cowden of the Hancock County Sheriff Department was convicted last month of excessive force and “Deprivation of Rights” by a federal jury in West Virginia. Prosecutors accused Cowden of abusing an arrestee after video surveillance captured the sheriff forcing Ryan Hambrick into a brick wall before punching the suspect in the back of the head with a closed-fist. According to prosecutors, Cowden’s actions were excessive and in violation of the law.

Defense attorneys responded to the allegations of unlawful use of force by arguing that Cowden was being targeted by political enemies and did not take unlawful action against the suspect. Cowden, who was up for political office this year, claimed that the use of force prosecution was designed to disrupt his campaign and had no basis in fact. According to his defense team, he used appropriate force against a suspect who had a violent history and who was resisting authority at the time of the incident. In an effort to bolster the defense, Cowden’s attorneys called a use of force expert to testify that he acted in accordance with police standards.

Use of Force Expert Testifies in Sheriff’s Criminal Trial

Timothy A. Dimoff, a national security law enforcement consultant and police expert witness, took the stand in Mark Cowden’s trial to explain to jurors that the sheriff used appropriate force against a drunk driving suspect who was not cooperating with authority. After watching the prosecution’s surveillance footage, Dimoff told jurors, “I don’t see repetitive abuse of force. I don’t see (Cowden) losing his cool. I see control techniques. I see a prisoner who is not cooperating.” Dimoff also told jurors that Hambrick displayed signs of aggression towards Cowden, including use of his head to engage in fighting techniques while the sheriff was attempting to book him.

Cowden’s defense team also called to the stand a medical expert in blunt-force trauma to testify that the incident between the sheriff and Hambrick did not cause serious injury. Dr. Jack E. Riggs, a neurologist from West Virginia University who has experience in combat hospitals, explained to jurors that the defendant could not have caused Hambrick’s injuries based on the nature of the wounds. According to Riggs, the angle at which Cowden hit Hambrick did not align with physical signs of injury, and the nosebleed the suspect suffered was likely an aggravated injury suffered during arrest. Hambrick had been involved in a physical altercation with an officer during the arrest which had caused the injuries he suffered.

Taken together, the two expert witnesses called by Cowden’s defense team were used to justify the sheriff’s action by explaining to jurors it was not outside department standards for uncooperative arrestees, and it did not cause severe injury.

West Virginia Sheriff Convicted in Use of Force Trial

Despite testimony from defense experts on police use of force and blunt force trauma, Lt. Sheriff Mark Cowden was convicted for using excessive force to detain Ryan Hambrick. Cowden has not yet been sentenced, but faces a possible 10-year prison term for his actions. Cowden’s name is still on the Hancock County election ballot. Although his federal conviction makes him ineligible for the role of Sheriff, he has maintained his innocence and is asking residents to vote for him anyway.

Mark Cowden’s case serves as another example of how police training and use of force experts are used in criminal trials of police officers who take violent action against arrestees or suspects. Although Cowden was convicted anyway, his defense team’s use of expert witnesses provided the best possible argument that he was acting in accordance with department procedures. Whether or not that influences sentencing remains to be seen.

Michigan Criminal Trials Highlight Expert Dispute over Shaken Baby Syndrome

Michigan Criminal Trials Highlight Expert Dispute over Shaken Baby Syndrome

Two Michigan men accused of killing infants have consulted expert witnesses to dispute allegations that the children died from Shaken Baby Syndrome. The cases, which have gone to trial, will serve as a critique of Shaken Baby Syndrome with both sides presenting experts to debate not only whether or not the condition explains the deaths, but whether or not it is valid given inconsistent results from medical science.

Michigan Men Accused in Shaken Baby Deaths

Leo Ackley and Anthony Ball have both been charged with felony murder and first-degree child abuse for deaths of their girlfriends’ young daughters. Prosecutors filing charges against both men have argued that there is sufficient evidence in each case to convict them based on Shaken Baby Syndrome — a medical condition caused by violent shaking which has been linked to death in infants and toddlers. According to police investigators and prosecutors, both children showed signs of being shaken and were home alone with the defendants at the time they suffered their injuries. Both men have argued that the children suffered a separate fatal injury, and claim that they did not take violent action against the children.

Ackley was found guilty on both charges after a 2012 trial, however, his conviction was overturned in 2015 when the Michigan Supreme Court found that his attorney erred by not calling a medical expert witness to dispute the child’s cause of death. Both Ackley and Ball recently asked the Michigan Supreme Court to delay their murder trials while experts dispute the validity of using evidence of injuries commonly associated with Shaken Baby Syndrome against them. However, the Court denied the request and allowed both trials to proceed.

Last week, Ackley was convicted a second time and will be sentenced to life in prison without possibility of parole during a sentencing hearing later this month. His attorneys have already promised an appeal. Ball’s trial is still ongoing, and will likely come to a conclusion within a week or two.

Experts Debate Shaken Baby Abuse during Michigan Trial

During his second trial, Ackley’s attorneys called several medical expert witnesses to offer pointed attacks on the conclusions by prosecution doctors who contend the victim’s injuries were the result of child abuse. According to defense expert witness Dr. Ljabisa Dragovic, the Oakland County Medical Examiner, the toddler could have been injured by a fall off a trampoline which occurred a few days before her death. Dr. Dragovic disputed the prosecution’s conclusion that child abuse caused the injuries, telling jurors that the injuries suffered were not conclusively linked to shaken baby syndrome.

Prosecutors in the case countered that the case was not specifically about shaken baby syndrome, but was instead focused on abusive head trauma and that their medical experts provided sufficient evidence connecting the defendant to the victim’s injuries. According to the prosecution’s medical expert, the brain samples of the toddler victim indicated she suffered from a head injury caused by significant force suffered while she was alone with the defendant. Further, according to the prosecution expert, the child showed other troubling signs, including bruising consistent with child abuse and a change in eating behavior.

Ultimately the jury was convinced that Ackley caused the injuries to the child victim and found him guilty for a second time, however, the lingering questions about the use of evidence of shaken baby syndrome — even if it is termed abusive head trauma — serves as a reminder that experts across the country are disputing a condition which has long been accepted in American criminal trials.

Michigan Cases Highlight Criticism of Shaken Baby Syndrome

Medical expert witnesses who specialize in child abuse and child injuries have divided on the existence of shaken baby syndrome. According to the Washington Post, there have been almost 2,000 cases in the United States which were built on evidence of abusive shaking. Of those cases, 213 resulted in acquittals or overturned convictions due to misdiagnosed shaken baby syndrome, leading many experts in the medical community to question the validity of the diagnosis. Research designed to challenge the conclusions of shaken baby syndrome has intensified, and legal agencies have received funding to challenge convictions based on the diagnosis.

On the other side, several medical experts maintain that shaken baby syndrome, which they argue should be called abusive head trauma instead, is a real medical condition which most physicians support. Proponents of shaken baby syndrome have criticized reports which call the condition into question, and argue that medical science supports a connection between shaking and specific head trauma injuries that prosecutors can use to earn abuse and murder convictions. Despite support for shaken baby syndrome causing abusive head trauma, experts continue to question its validity and use during criminal trials.

Criminal Forensics, word cloud concept 11

Expert Scientific Report Issues Scathing Review of Common Forensic Techniques

Recently, the President’s Council of Advisors on Science and Technology (PCAST) released an expert witness report  which sharply criticized a number of widely accepted forensic methods used in criminal trials. As expert witnesses become ubiquitously integrated into the American criminal justice culture, many forensic science techniques have become commonplace in trials, and the PCAST report represents an effort to trim so-called junk science from the courtroom.

Increased Scrutiny Raises Questions about Forensic Science Techniques

After experiencing a heyday of expansion in the 1990s, expert forensic science testimony used during criminal trials has seen a rise in scrutiny from the scientific community from the early-2000s through the present. Commonly used forensic analysis procedures such as bite-mark analysis, footwear examination, and microscopic hair comparisons have been widely criticized by scientific experts, and even widely accepted techniques such as DNA analysis and latent fingerprint identification have undergone rigorous scientific study in order to determine when and how such procedures are effective and valid. Among the number of studies conducted which analyze the validity of forensic evidence, a handful stand out:

  • In 2002, the FBI found that 11% of its microscopic hair comparisons incorrectly matched hair samples, and in 2015 a report by the FBI and the Innocence Project found that hair matching analysis was incorrect a staggering 90% of the time;
  • In 2004, a report commissioned by the FBI found that there was insufficient research and data to match bullets based on lead composition;
  • In 2005, a review of latent fingerprint testing used in the investigation of an alleged terrorist in Spain found that police bias allowed for the fingerprint evidence to be misinterpreted, and several studies throughout the mid to late 2000s have identified causes of error in fingerprinting which have refined the process;
  • Several studies since 2009 have found bite mark evidence to be unreliable in identifying defendants; and
  • Multiple studies and reports by the FBI and the National Institute of Justice have found that DNA testing has invalidated jail sentences for several defendants who were convicted on the strength of faulty bite mark, hair comparison, shoe tread comparison, and other common forensic methods.

Since the turn of the century, a cottage industry has arisen for scientists and legal organizations dedicated to re-evaluating convictions based on shaky forensic expert witness testimony, leading to several hundred exonerations across the United States. With widely accepted forensic methods facing questions from the scientific community, President Obama commissioned PCAST in 2015 to write a report which critically examined the state of forensic methods used in criminal trials.

PCAST Report Sharply Criticizes Common Forensic Methods

Last week’s PCAST report , which was written by high profile scientists who conducted thorough reviews of forensic techniques and methodology, issued a critical review of several types of evidence which have become common in criminal trials. Building on prior work and conducting further empirical research, the PCAST report critically examined 7 forensic methods: single source DNA testing, complex multi-source DNA testing, latent fingerprinting, bite mark, firearm analysis (which connects a bullet to a gun based on unique features of the weapon), footwear analysis, and hair matching analysis.

The report found that single source DNA testing is a highly valid forensic method and both multi-source DNA and latent fingerprint analysis have made strides in refining the process and there are reliable experts available to testify to each method in criminal trials. The scientific experts who generated the PCAST report concluded that bite mark identification, firearm analysis, footwear tread identification, and hair matching analysis are currently unreliable given the lack of empirical research supporting each field. The PCAST suggested opportunities for improvement, particularly in firearm analysis, but suggested that each of these forensic techniques must undergo more rigorous testing before being universally relied on in criminal trials.

Implications of the PCAST Forensic Expert Report

Since 1993’s Daubert v Merrell Dow decision, judges throughout the American legal system have been tasked with rigorous evaluation of expert witness testimony and are only allowed to admit experts who provide reliable testimony that is the product of sound theory and scientific methodology. Judges can consider many factors, but in reality asking the judiciary to critically evaluate scientific work imposes a duty beyond a judge’s qualifications. As a result, forensic methods based on junk science can gain widespread popularity if a collection of scientists convince a judge that the theory and methodology are sound enough to pass legal muster.

The PCAST report, which is written with an eye towards the legal standard for admitting forensic expert witness evidence, provides judges with the tools necessary to more closely evaluate many widely used forensic techniques. While the future use of these common forensic techniques in courtrooms is unlikely to change overnight, the long term effect of the PCAST work will likely see a decrease in reliance on unreliable forensic expert testimony. Regardless of its immediate effect, the PCAST report represents a change in how the scientific and legal community will interact in criminal investigation and prosecution as more rigorous scientific analysis influences when and how expert witnesses can testify.

Don't drink and drive concept. Close up of man hand drinking beer and holding car keys. Responsibly and safety driving

Questions Surrounding a Houston Toxicology Expert Witness Raise Doubt on DWI Convictions

Several Houston area DWI convictions have come under review after a toxicology expert witness had her credentials questioned following a recent trial. The expert has defended herself and her work, however, defense attorneys have asked the Houston DA to conduct a thorough review of past convictions and to remove her from testifying as an expert witness during future DWI trials.

Houston Toxicology Expert Witness Has Credentials Questioned

An expert witness in toxicology who has taken the stand in hundreds of Houston DWI cases since 2006 has had her credibility and qualifications come under fire after defense attorneys noticed her degree does not reflect the specialty upon which her testimony focuses. Dr. Fessessework Guale works as an expert in toxicology with the Harris County Institute of Forensic Sciences in Houston, and has built up a reputation as a noted witness over years of testimony in DWI and other felony trials. Dr. Guale entered the field by claiming she had a Master’s of Science degree in Toxicology from Oklahoma State University, but some digging by a local defense attorney uncovered inconsistencies in her record.

According to Tyler Flood, who is president of the Harris County Criminal Lawyers Association, Guale has misrepresented her qualifications and put her expert testimony in serious doubt. Research by Flood revealed that Guale’s degree is actually in physiological sciences, which could include toxicology research, however, Guale’s studies in toxicology focused largely on animals rather than humans. Flood found these revelations to be significant, telling reporters, “She has flat out stated and testified under oath, I have a Master’s Degree in Toxicology, and that is not the truth … She has lied to the crime lab that she works at, she’s lied to prosecutors, and she’s lied to judges.”

In addition to potentially seeking criminal charges against Guale for the deception, Flood and other criminal defense attorneys have asked for her resignation, for a thorough review of all the DWI cases in which she has testified as a toxicology expert witness, and for the DA to stop using her as an expert witness in trials.

Toxicology Expert Defends Herself Against Allegations of Deception

Speaking to reporters at her home in Houston, Dr. Fessessework Guale defended herself against the allegations that she had lied to prosecutors and judges about her qualifications as a toxicology expert witness. According to Dr. Guale, the matter is simply a “misunderstanding,” and she has the necessary qualifications to take the stand as an expert in toxicology. Guale told reporters, “My training is in toxicology but the degree says physiological sciences, which is a big area which toxicology is a sub part of it … It’s called a sub discipline.” She did not address concerns that her toxicology focus was on animals while she studied at Oklahoma State.

Her employers at the Harris County Institute of Forensic Sciences (HCIFS) released a statement which supported Dr. Guale’s qualifications to testify as a toxicology expert witness, but noted it would review her education and training in light of the allegations against her. In its statement, the HCIFS noted that Guale had participated in toxicology training and received certification by the American Board of Forensic Toxicology “reflecting her knowledge, training, and experience in forensic toxicology.” Pending completion of the review of her prior testimony and educational qualifications, Guale has been reassigned and may require re-training before she can continue to testify in court.

Houston DA to Review Impact of Toxicology Expert Mix-up

Attorney Tyler Flood and several other Houston area defense attorneys have called for a complete review of all the cases in which Dr. Guale testified as a toxicology expert witness. The Harris County DA released a statement which said its office is in the process of assessing which cases Dr. Guale’s testimony may have impacted the verdict and will proceed with a formal review accordingly. Attorneys representing clients who were convicted after trials which featured Guale have been asked to contact the DA, but whether or not the issue will result in convictions being overturned remains to be seen.

Attorneys for Jaime Flores, who was convicted of being intoxicated and causing a fatal car accident in part due to Guale’s toxicology expert testimony, have announced that they will file a motion for a new trial based on the revelation about her qualifications and education. Given that Guale has undergone training in toxicology analysis, the miscommunication about the precise nature of her degree may have minimal effect on most of the prior cases she worked on. However, her reputation has come under serious fire and she could be dismissed from future testimony as a toxicology expert in DWI trials.

High Profile Forensic Expert Witness Rejected due to Questionable Qualifications

A DNA expert witness who has testified on behalf of defendants in several high profile trials was dismissed from a Colorado courtroom for being unqualified.  The expert’s dismissal could result in attorneys being less likely to use him, however, he argues the judge’s decision to denounce his qualifications was made in error and his expert testimony is scientifically validated.

High Profile Expert Witness Dismissed from Colorado Trial

Richard Eikelenboom is a forensic scientist who has testified as a DNA expert witness in several high profile trials across the country, most notably on behalf of Casey Anthony who was acquitted by a Florida jury in 2011 on all charges stemming from her 3-year-old daughter’s death.  Eikelenboom took the stand in the Casey Anthony trial as a DNA expert, and told jurors that there was not sufficient forensic evidence to connect Anthony to her daughter’s death.  His DNA expert testimony contributed in part to her acquittal, and Eikelenboom has been called as a forensic expert for several years in trials across the country.

Last week, Eikelenboom’s reputation and position as a DNA expert witness suffered a significant blow when a Denver judge discredited his qualifications to testify about forensic evidence in court.  During testimony in a 2013 sexual assault case, the judge presiding over the trial found that Eikelenboom had committed serious errors in his DNA analysis by failing to follow proper scientific standards set by other professionals in the field.  According to prosecutors in the case, Eikelenboom admitted on the stand that he did not have experience directly extracting or analyzing DNA, that his lab is not properly accredited, and that he himself failed proficiency tests in 2011 and 2012.

After hearing about flaws in Eikelenboom’s analysis and proficiency level, the Denver judge rejected his testimony by finding he was unqualified to take the stand.  Since being dismissed as an unqualified expert, Eikelenboom has attempted to dispute the judge’s conclusion and offer assurances that his forensic expert testimony is built on sound principles and methods.

Debunked Expert Witness Defends Qualifications

Speaking to the media after being dismissed from testifying as a forensic expert witness, Richard Eikelenboom attempted to address the accusations that he does not produce reliable DNA analysis.  Calling the claims that his methodology is fundamentally flawed “completely unfounded,” Eikelenboom told reporters that the prosecutors manipulated his responses in order to paint an inaccurate portrayal. According to Eikelenboom, the trial judge did not completely understand his work or his qualifications, and therefore made the decision to reject his testimony without all of the relevant facts.

Eikelenboom also pointed out that his lab has received accreditation from two separate professional organizations, including the American Society of Crime Lab Directors (ASCLD).  Additionally, some of the disputed DNA testing which prosecutors used as proof that he was not qualified was conducted decades ago, and Eikelenboom maintains that he has received the proper training and education to act as a forensic science expert witness.  He also told the press that his professional name and reputation has been slandered, and announced intentions to contact a lawyer.

Forensic Expert’s Dismissal Could Limit Future Opportunities

Prior to last week’s challenge to his professional reputation, Eikelenboom testified in several criminal trials, several of which resulted in defendants being acquitted of fairly serious charges.  In addition to Casey Anthony, the forensic expert was called by former Indiana State Trooper David Camm who was acquitted of killing his wife and children, and helped overturn a murder conviction of Tim Masters, a Colorado man who spent more than 20 years in prison before DNA analysis conducted by Eikelenboom’s lab was used to exonerate him.   While none of the past work can be impacted by last week’s decision, Eikelenboom’s future as an expert witness may be in jeopardy.

Forensic science expert witnesses are widely used in criminal trials across the country, and competition for the opportunity to testify as an expert can be significant.  Experts rely on their professional reputation in order to market their skill set, and Eikelenboom’s recent dismissal will likely impact his opportunities going forward.  Attorneys will be hesitant to hire an expert whose qualifications have been questioned, even if the expert has testified successfully in high profile cases.

New Hampshire Court Dismisses Lead Paint Expert Testimony in Somali Refugee Lawsuit

The New Hampshire Supreme Court has dismissed testimony from a lead paint expert witness in a lawsuit against landlords accused of providing unsafe housing.  The suit, which has been ongoing for nearly 10 years, may be nearing a conclusion as the plaintiffs are left without a key piece of testimony after the court’s decision.

Somali Refugees file Lead Paint Lawsuit

From 2005 through 2006 a group of Somali Bantu refugees lived in apartments owned by Wen Lin, a landlord in Manchester, New Hampshire.  After several members of the community got sick, 20 of the refugees filed a lawsuit alleging that the apartments were contaminated by lead paint, which is a known hazard.  The plaintiffs claimed that the defendants had provided an unsafe living environment which caused injury to the community members who lived there.

As with any injury lawsuit, the plaintiffs were required to prove that they suffered a legally actionable harm as a result of the defendant’s behavior or negligence, and in this case that meant the Somali refugees had to show they suffered an illness or injury as a result of exposure to lead paint.  In order to satisfy their burden of proof, the plaintiffs hired a lead paint expert to evaluate their injuries and testify in court that the defendant’s apartment was the likely cause of harm suffered.

Lead Paint Expert Witness Submits Report to Trial Court

The Somali Bantu refugees attempted to demonstrate that their injuries were caused by their living conditions by having lead paint expert witness Dr. Peter Isquith, a trained clinical neuropsychologist, to conduct tests on 17 children of the plaintiffs.  Dr. Isquith used two scientific measures in order to determine that the children suffered from a neurological condition which was “more likely than not” caused by lead paint in their living quarters.

In order to make this determination, Dr. Isquith used two common neurological tests which are designed to measure verbal and non-verbal intelligence and general intelligence.  The tests are separated into a series of questionnaires which examine cognitive function, attention, language, memory, and learning, and social perception.  According to Isquith the plaintiff’s children standardized scores fell in a lower percentile when compared to standardized scores of other children who were not exposed to the same levels of lead paint.

Dr. Isquith used his results to argue that the alleged harm suffered by the plaintiffs not only was real, but was caused by the apartments provided by the defendant.  During trial, the defendants motioned to exclude Isquith’s testimony, and after a lengthy evidentiary hearing the trial judge excluded the plaintiff’s expert for failing to account for specific conditions of the plaintiffs.

New Hampshire Supreme Court Strikes Lead Paint Expert Witness

On appeal, the New Hampshire Supreme Court closely reviewed the methodology Isquith employed and agreed with the trial court that he had not met the scientific standards required of expert witnesses in the state.  The Court affirmed the trial court’s position by writing that the tests Isquith had used failed to consider the differences between Somali children and his comparison group, or consider how “normal, healthy” Somali children would perform.

Without a baseline for comparison, the Court determined that the plaintiff’s expert witness had not provided sufficient scientific justification for his conclusions regarding the lead paint injuries.  Further, Isquith’s work had not been reviewed by peers, and was fraught with uncertainty which made it akin to “guesswork [which] would not assist the jury in arriving at a fair and just verdict.”  Accordingly, the Court found that Isquith had not met the threshold for expert witness reliability in New Hampshire.

The case serves as a reminder that well qualified and educated expert witnesses can provide seemingly meaningful analysis which cannot pass legal standards.  Courts, particularly courts which operate under standards adopted in Daubert ant its state-level progeny, are required to look beyond expert qualifications and closely examine whether or not expert analysis reliably connects the facts of the case to scientific conclusions.

a judge's chair

Arkansas Judge on Trial for Hot Car Death Calls Forgotten Baby Expert Witness

An Arkansas judge accused of negligent homicide for the hot car death of his infant son has called a neuroscience expert witness to testify about “forgotten baby syndrome.” The expert witness accompanied emotional testimony from several of the judge’s family members in an effort to convince jurors that he was not negligent of his child, but instead suffered from a momentary loss of memory explained by a neurological syndrome.

Arkansas Judge Charged with Negligent Homicide

Judge Wade Naramore of Garland County, Arkansas is on trial for negligent homicide for the death of his 18-month-old son, Thomas, who died after being left in a hot car in July 2015. Naramore left Thomas in the car for several hours after failing to take him to day care, and the infant died with an internal body temperature of 107 degrees. After investigating the incident, prosecutors arrested Naramore and charged him with negligent homicide, arguing that the defendant “should have been aware” of the risk of leaving his son in the car, and his failure to recognize that risk was a criminal deviation from the care that a reasonable person would have taken.

Defense attorneys for Naramore have focused their argument on an additional element of negligence that prosecutors have not included: blameworthiness. According to Naramore’s defense team, negligence is more than just a failure to perceive a risk, but also requires evidence that the defendant was at fault for consciously creating the risk. The defense has argued that prosecutors must prove a deliberate act or conduct contributed to Thomas’s death, and have focused their case on showing jurors that Judge Naramore suffered from a neurological memory lapse which made him unaware that his infant son was left in the hot car.

Calling the incident a “tragic accident” which does not meet the threshold of criminal negligence, Naramore’s attorneys called a nationally renowned neuroscientist to explain the concept of “forgotten baby syndrome” to jurors.

Expert Witness Explains Forgotten Baby Syndrome

Attorneys for Wade Naramore called David Diamond, Ph.D to take the stand and explain a theory he uses to explain the loss of awareness of children in cars. Dr. Diamond, a neuroscience expert at the University of South Florida, calls his theory Forgotten Baby Syndrome, and argues there are several factors which cause an otherwise normal and loving parent to temporarily forget that they have a child in the car with them. Dr. Diamond’s expert testimony distinguishes Forgotten Baby Syndrome from standard child abuse or negligence by categorizing it as a neurological condition creating holes in human memory – which can be faulty and frail.

According to Dr. Diamond, when parents depart from their standard routine, and suffer from sleep deprivation and high stress situations. During his testimony, Dr. Diamond told jurors that Naramore’s case was consistent with the causes of Forgotten Baby Syndrome. On the day of Thomas’s death, the defendant dressed and readied the baby — usually something his wife did — and had an unusual breakfast at McDonald’s instead of his regular banana. Additionally, Naramore was having trouble sleeping at the time, going so far as to take pills to help the process. Dr. Diamond’s day-long testimony explained that the defendant may not have been negligent, but was instead suffering from the temporary neurological condition which caused him to forget about his infant son.

Forgotten Baby Syndrome in Hot Car Trials

This is not the first time that Dr. Diamond has testified about Forgotten Baby Syndrome during a negligent homicide trial of a parent who forgot a baby inside of a hot car. Last year, Diamond testified in the trial of El Paso teacher Wakesha Ives, whose daughter died after being left in a hot car during the school day. Although Ives was found guilty in that trial, she received a suspended prison sentence and probation.

Forgotten Baby Syndrome, like many syndromes, may be met with skepticism by jurors who are unable to believe that any parent could simply, and without control, forget a child inside of a car. With the occurrence of the condition uncommon, defense attorneys who call Dr. Diamond as a forgotten baby expert witness likely have an uphill battle to climb regardless of the empirical soundness of the expert’s research and theoretical conclusions. Wade Naramore’s trial will likely conclude next week with a verdict expected shortly.