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.

North Carolina Death Penalty Defendant Offers Trial Strategy Expert Witness

Defense attorneys for a North Carolina man have asked a death penalty expert witness to submit a report to the trial judge which questions prosecutorial strategy in a murder trial. The case is an example of defense attorneys using an expert witness to cast doubt on prosecution witnesses who are offered deals in exchange for testimony against a lead defendant.

North Carolina Prosecutors Seek Accomplice Testimony in Murder Trial

Anthony Vinh Nguyen, 24, is on trial facing charges of first-degree murder, first-degree kidnapping, first-degree burglary and armed robbery in an incident which resulted in the death of Shelia Pace Gooden, 43, in October of 2013. Nguyen has been accused of shooting Gooden during a botched robbery attempt after he and two other men broke into her home and held her hostage in order to steal her $200 flat screen television. According to two accomplices, Nguyen fatally shot Gooden in the head during the robbery, but the defendant has maintained that he was not even with the two men that night and as such he did not take part in the robbery homicide.

Assistant District Attorneys Jennifer Martin and Ben White are the lead prosecutors in the case, and are asking for Nguyen to receive the death penalty if he is convicted. Nguyen’s two accomplices – Daniel Aaron Benson, 25, and Steve George Assimos, 24 – are also charged with first-degree murder, kidnapping, and burglary charges, however neither of them face the death penalty as both are likely to agree to testify against Nguyen in the upcoming trial.

Accomplices are frequently offered plea agreements in exchange for testimony against a co-defendant, but Nguyen’s defense attorneys – David Botchin and John Bryson – have called an expert witness to argue that the two men who claim Nguyen shot the victim are only saying what the DA is telling them to.

Expert Witness Report Questions Prosecutorial Strategy

Attorneys Botchin and Bryson have submitted papers indicating their intention to call Ernest L. Conner Jr., a criminal defense attorney, as an expert defense witness in death penalty cases and prosecutorial strategy. Connor submitted an affidavit to the court which explains that the focus of his expert testimony would be on the favorable treatment that the DA’s plan on giving Benson and Assimos, and how that treatment could unfairly influence their testimony against Nguyen. Although the prosecutors have not formally offered either man a plea deal in exchange for testimony, Connor has argued that the arrangement is likely.

Connor explained in his affidavit that the alleged accomplice testimony can still be influenced even if prosecutors have not offered plea agreements at this point in the proceedings. Connor, who has been involved with capital punishment litigation since 1992, dismissed the need for a specific deal for testimony by writing, “Since prosecutors must inform defense counsel of any formal plea offer, prosecutors often take advantage of an accomplice’s mere hope or expectation of leniency to be the motivating factor for the accomplice’s testimony.”

Further, according to Connor’s expert opinion, the fact that the DA’s have not sought capital charges against Benson and Assimos in the three years since the shooting “is an unspoken concession that implies lenient treatment is to come.” The prosecution has not formally objected to Connor’s proposed death penalty expert testimony, but will likely attempt to prevent him from testifying at trial.

Death Penalty Litigation Expert Testimony Faces Stiff Opposition

The proposed testimony by litigation expert Ernest Connor faces two primary hurdles during the pre-trial motion phase: first, prosecutors have not made any plea offer to either of Nguyen’s alleged accomplices, and second, the unusual expert testimony may not be permitted during trial. DA’s Martin and White have not talked about Connor’s proposed expert testimony directly, but have maintained that both Benson and Assimos have been cooperative from the start of the investigation and have not received plea agreements. Although Connor said that a lack of a deal was not important, the circumstances of the accomplice testimony may diminish his expert report.

The stiffer challenge which Nguyen’s defense team faces is whether Connor will be allowed to testify as a trial strategy expert witness at all. Expert witnesses walk a fine line between offering a permissible interpretation of facts and an impermissible opinion which could influence jurors, and Connor’s proposed testimony regarding the credibility of accomplice witnesses based on prosecutorial plea agreement strategy is squarely in a grey area. The case will proceed this week where prosecutors are likely to object to the defense’s proposed death penalty expert.

Oklahoma Man Turns to Psychiatry Expert Witness for Insanity Defense

A psychiatry expert witness provided a report that an Oklahoma man charged with murdering his father is mentally unfit to stand trial, setting the stage for a critical ruling on mental competency from the presiding trial judge. The case has gained attention in Oklahoma because the victim was a former state official, and the defendant has displayed signs of significant mental disorder.

Oklahoma Man Accused of Murdering his Father

Christian Costello, 27, is on trial for the fatal stabbing of his father, Mark, at a fast-food restaurant in August, 2015. According to witnesses, Christian attacked his father with a knife while in the restaurant and then continued the fatal assault outside in the parking lot after Mark attempted to flee. Mark Costello is the former labor commissioner of Oklahoma, and his death brought statewide attention on the question of whether or not Christian is mentally competent to stand trial.

Throughout the investigation into the crime, Christian Costello has been housed at a state run mental hospital where he has undergone a series of examinations in preparation for trial. Costello’s attorneys have argued that their client is legally insane, and the defendant gave a convincing show of his deficient mental state during this week’s competency hearing by admitting to killing his father because he was a hit man who was ordered to commit the crime as part of a “military operation.”

Despite the defendant’s odd behavior, proof of legal insanity requires more substantial evidence, which attorneys for Costello attempted to provide by calling a psychiatrist expert witness to provide an expert report supporting the insanity defense.

Psychiatry Expert Witness Testifies to Legal Insanity

Dr. Jason Beaman, the chair of the Department of Psychiatry and Behavioral Science at Oklahoma State University, was hired as a psychology expert witness by Costello’s defense team and asked to write a report on the defendant’s competency to stand trial. Dr. Beamon returned a 39-page report which detailed Christian Costello’s long history of mental health issues including schizoaffective disorder, which is a mental illness causing hallucinations, delusions, depression, and mania.

In regards to the effect of Costello’s mental health issues on his competency to stand trial, Dr. Beaman wrote, “It is my opinion … that the defendant has the ability to appreciate the nature of the charges filed against him but he does not have the ability to consult with his attorney and rationally assist in the preparation of his defense.” Dr. Beaman went on to write that Costello could meet the legal requirement of mental competency if he underwent psychiatric therapy or training to help him understand the legal processes.

Costello Faces Uphill Battle for Insanity Defense

Dr. Beaman’s psychiatry expert witness report is interesting because it may not provide a strong enough pillar for an insanity defense to stand on – particularly if the trial judge is willing to delay proceedings while Costello undergoes further evaluation or therapy. Further, Costello’s attorney told reporters that he believes his client was legally insane at the time the attack occurred, telling the press, “I think that’s just the way he is, and I don’t think he knew what he was doing when he killed his father.” Dr. Beaman’s report, however, did not say Costello didn’t understand the consequences of his actions, but instead focused on his ability to contribute to his own defense – a distinctly different proposition.

With a middling endorsement of the insanity defense from the defense expert witness which does not quite support Costello’s attorney’s position, the defense team may have a difficult time convincing the court to accept an insanity plea. The insanity defense remains a difficult prospect for any defendant as attorneys must use a psychiatry expert witness to not only show a mental defect, but also demonstrate that the defendant did not know their actions were wrong, could not understand the consequences of their behavior, and are unable to contribute to their own defense.

Depending on Oklahoma’s insanity plea laws, Costello’s proposed defense faces a stiff challenge. The proceedings are on hold while the court awaits the results of an evaluation by a court appointed psychiatrist before moving forward.

Former Alabama House Speaker Challenges Corruption Conviction Citing Expert Testimony

The former Alabama House Speaker who was convicted of corruption charges in June has appealed his case by citing improper expert testimony. According to the appeal, the trial court erred by allowing a state ethics expert witness to take the stand, and further erred by allowing him to provide an inaccurate picture of Alabama ethics rules.

Expert Testimony Aids in Alabama Speaker’s Conviction

Earlier this year, the former Alabama House Speaker Mike Hubbard (R) was convicted of 12 ethics violations for using his political position to secure favorable contracts for companies he owned. Prosecutors demonstrated that Hubbard’s companies had been awarded up to $2.3 million in government contracts in violation of the state’s ethics law. The state bolstered its case with testimony from the former director of the Alabama Ethics Commission Jim Sumner, who took the stand as an ethics expert witness.

Sumner explained Alabama ethics law, which prohibits state government officials from using political office to benefit themselves or a business in which they hold interest. Sumner also testified that Hubbard was well aware of the relevant ethics laws, but the former Speaker did not make an effort to consult the ethics board when engaging in questionable behavior. With the aid of Sumner’s expert testimony, Hubbard was convicted and sentenced to serve four years in prison, eight years probation, and pay a fine of $210,000.

This week, Hubbard file a motion to the court appealing his conviction by arguing Sumner’s testimony should have been disallowed as an impermissible, and incorrect, opinion of Alabama ethic’s law.

Mike Hubbard Cites Error in Expert Testimony in New Trial Motion

In a 39-page motion detailing the problems with the prosecution’s interpretation of Alabama ethics law and requesting either a dismissal of all charges or a new trial, Hubbard provided an in depth argument against Sumner’s expert testimony. According to Hubbard, Sumner’s testimony was faulty for two reasons: 1) he offered opinion testimony, which is impermissible; and 2) he was wrong in his opinion of Alabama ethics law. Alabama’s laws of evidence allow expert witnesses to explain facts or laws in a way that jurors are able to understand, but does not allow experts to provide their opinion on how facts or laws should be interpreted. According to Hubbard’s appeal, Sumner’s ethics expert analysis violated this rule because he told jurors what the language of Alabama ethics law meant. Hubbard claims that Sumner provided his own interpretation of Alabama ethics law, which should have been disallowed by the trial court.

Hubbard also argued that the problem with allowing Sumner to provide his opinion of Alabama’s ethics law was compounded because the expert was incorrect in his interpretation. Hubbard’s motion for a new trial alleges that Sumner’s expert testimony encouraged an overly broad interpretation of the state’s ethics code which encouraged criminalization of behavior which was not intended when the rules were passed. Sumner allegedly misinterpreted Hubbard’s contracts with the state of Alabama as illegal activity, and failed to properly explain certain exceptions to the ethics code which Hubbard claims applied to his case.

Hubbard’s motion for a new trial concludes by arguing that prosecutors improperly called an ethics expert witness whose opinion of the relevant law aligned closely with their own, and the trial court erred by allowing the jury to consider Sumner’s testimony.

Alabama Criminal Court to Consider Hubbard’s Motion for a New Trial

Prosecutors have yet to respond to Hubbard’s motion for a new trial, but have asked the Court to reconsider the defendant’s sentence. According to prosecutors, Hubbard should also have been ordered to pay $1.1 million in restitution for his corruption conduct based on previous sentences for similar actions by officials. Prosecutors requested the additional restitution during sentencing, but were unable to provide legal precedent until a post-conviction motion. Given Hubbard’s recent appeal, the state’s attorneys will be forced to shift focus to a motion defending their use of an expert.

Hubbard remains out of jail on bond while the Judge considers post-conviction appeals and motions, and with the importance of the upcoming ruling on his motion to dismiss charges and overturn the conviction, the case will likely take several more weeks or months to resolve. Should Hubbard be granted a new trial, prosecutors will need to reassess how they use their ethics expert witness to avoid overstepping the boundaries placed on expert testimony.

Defective Product Lawsuit Against Bayer Fails Without Medical Expert Testimony

A defective medical products claim with 1,300 joint female plaintiffs has been dismissed four months after a New York federal judge prohibited medical expert witnesses from testifying. The case has limped along since the plaintiffs suffered a devastating ruling against their expert testimony this year before finally being put to rest last week for lack of evidence against the device manufacturer.

High Profile Defective Device Lawsuit Dismissed in New York Federal Court

US District Judge Cathy Seibel in New York dismissed a complaint filed by 1,300 women against medical device manufacturer Bayer for lack of evidence the company caused the plaintiffs’ injuries. The claim originated from complaints about Bayer’s Mirena intra-uterine contraceptive device (IUD) which allegedly perforates women’s uteruses after it has been surgically inserted. According to the plaintiffs, the Bayer Mirena IUD caused internal injuries after surgery, and the company failed to provide warning about that possibility when it marketed the product to surgeons and patients.

Bayer has not denied the fact that the 1,300 plaintiffs suffered internal injuries, but responded to the complaint by arguing that the damage occurred during surgical insertion and is therefore the responsibility of the doctors and hospitals rather than the company. The company also warns about the possibility of uterus perforation during insertion, and argues the plaintiffs understood the risks associated with the product. Bayer has maintained the position that the Mirena IUD is not defective throughout the lawsuit, and successfully argued for a dismissal last week by showing that the plaintiffs failed to provide evidence that injuries occurred after surgical insertion due to a defect in the device.

Bayer’s argument for dismissal was made easier in March when Judge Seibel dismissed expert witnesses hired by the plaintiffs to argue that the Mirena IUD can cause internal damage.

Plaintiffs in Bayer IUD Case Lose Expert Witness Testimony

At the outset of the case, the 1,300 plaintiffs hired medical expert witnesses to conduct an analysis of the types of injuries they suffered and Bayer’s Mirena IUD product to see if a defect contributed to their harm. The plaintiffs’ expert witnesses included two ob-gyn professionals and a uterine physiologist who were prepared to testify that the uterus perforation occurred after the IUD’s were inserted due to a defect in the design and manufacture. After reviewing the content of the proposed expert testimony, Judge Seibel banned four of the experts from testifying at all and severely limited two others to the point where they would have been of very little help to the plaintiffs’ case.

According to Judge Seibel, several of the Bayer IUD plaintiffs’ experts were unqualified to speak on the issue, and those who were offered opinions and hypotheses rather than proven fact. The judge determined that the expert testimony was not based on sound scientific findings, but instead on anecdotal theories prepared specifically for the litigation by a collection of medical professionals. Under the Daubert standard of expert witness testimony used in federal courts, the plaintiffs’ experts could not be allowed to testify without providing scientifically accepted research.

Judge Seibel further weakened the plaintiffs’ position by allowing several of Bayer’s expert witnesses to testify because they had documented medical research regarding the performance of the company’s Mirena IUD.

Bayer Mirena IUD Lawsuit Fails after Lawyers Forego Expert Testimony

Rather than abandon the case or seeking other qualified experts after Judge Seibel’s decision against the plaintiffs’ expert witnesses in March, attorneys representing the women decided to pursue the case without medical expert support. According to the attorneys, Bayer’s admission that the women’s harm was caused by the Mirena IUD was sufficient to prove liability, despite the fact that Bayer argued the injuries occurred during insertion – something the company warned about and was not liable for.

Ultimately the strategy to move forward without viable and qualified medical expert witnesses failed, and the dismissal of the complaints against Bayer last week confirms an outcome that many have suspected was forgone. The failed lawsuit against Bayer’s Mirena IUD provides a cautionary tale to plaintiffs and their attorneys that defective product lawsuits are unlikely to succeed without qualified medical expert testimony. Medical experts must be ready to provide testimony which is supported by scientific research, not prepared specifically for the trial, and backed by the expert’s qualifications in the field.

False Confession Expert Testifies in Brooklyn Murder Trial

A New York man charged in the kidnapping and murder of a Brooklyn real estate magnate has called on a psychology expert witness to testify that he falsely confessed to the crime. The high profile case provides another example of how behavioral science expert testimony is being worked into the legal system, and the outcome could influence the use of false confession research by courts in the future.

Brooklyn Murder Suspect Confesses to Role in Kidnapping

Brooklyn native Kendel Felix was arrested for his alleged involvement in the January 2^nd, 2014 kidnapping and murder of real estate mogul Menachem Stark. Stark was taken from the front of his office during a snowstorm, and his partially burned body was later recovered in a dumpster on Long Island. Three months after the murder, police arrested Felix and three other co-defendants in connection with the crime, but only Kendel has been charged with murder. Felix has been singled out in part because of a taped confession he provided to police officers in which he admitted to taking part in the crime by driving and helping to buy gasoline used to burn Stark’s body.

Felix claimed that he did not plan the crime, but his confession has nonetheless become the center piece of the trial against him. If convicted, Kendel faces 50 years to life in prison, and his attorneys have attempted to attack the confession evidence with a pre-trial hearing featuring false confession expert testimony. Attorneys for Felix reached out to a psychology expert witness with experience in false confession research to testify that the defendant was vulnerable to police persuasion which may elicit admission to a crime he did not commit.

False Confession Expert Testifies in New York Murder Trial

According to expert testimony from Dr. Marc Janoson during a pre-trial hearing in front of Brooklyn Supreme Court Justice Neil Firetog, Kendel Felix may have falsely confessed to the kidnapping and murder. Dr. Janoson has a PhD in psychology, and is an experienced false confession expert witness with years of research on the subject. Dr. Janoson has been called to testify in several criminal trials, and told Judge Firetog that Felix has “vulnerabilities that the literature has associated with false confessions.”

Dr. Janoson conducted several one on one interviews with Felix after the defendant’s arrest, and testified that in his expert opinion Kendel suffered from a low IQ of 87 and memory loss which made him more likely to falsely confess. Dr. Janoson also talked about the police investigation, during which officers told Felix that his parents could be deported if he didn’t confess and that he would never see his three children again. The police also dissuaded the defendant from talking to a lawyer. When talking about the methods the police used while questioning Felix, Dr. Janoson told the court “I would also add that if the reports he gave me on his interrogation were correct, there was a great deal of coercion.”

Dr. Janoson cited research on false confessions which demonstrates that low intellect individuals subject to heightened police pressure are at an increased risk to admit to a crime that they did not commit. During his expert testimony, Janoson explained the existing research on false confessions and highlighted the attributes of Felix’s case which align with false confession literature. Prosecutors responded by calling a counter-expert to dispute Janoson’s claims.

Prosecution Calls Psychology Expert Witness to Dispute False Confession Testimony

In response to Dr. Janoson’s false confession expert testimony, prosecutors called psychologist Kathy Yates to dispute the defense’s claim that Felix was vulnerable to police coercion. According to Yates, the defendant had the intellectual capacity to understand his rights to speak with a lawyer, and faked his memory loss in an effort to avoid a long prison conviction. During her testimony, Yates looked to Felix and directly contradicted Janoson’s testimony by saying, “I apologize for my colleague yesterday for saying you were brain damaged and below intellect.”

The success of Felix’s false confession expert witness remains to be determined, but the case represents an interesting use of experts in criminal trials. False confession expert witnesses have grown in popularity as research into the phenomenon expands, but even renowned experts have experienced difficulty convincing judges and juries that a suspect can admit to a crime he did not commit. Despite the uphill battle false confession experts face, psychologists in the field may be called upon by defense attorneys who seek to challenge evidence which is historically a strength for prosecutors.

Plaintiff Earns New Medical Malpractice Trial Due to Expert Witness Testimony

A Pittsburgh woman who lost a malpractice lawsuit has been granted a new trial because a lower court erred by restricting medical expert testimony that would have bolstered her case. According to a Pennsylvania Superior Court, the plaintiff had a right to present the full testimony of a medical diagnosis expert witness who was called to help her explain why a Pittsburgh area hospital was negligent in responding to her symptoms.

Pittsburgh Woman Files Medical Malpractice Suit for Failure to Diagnose Breast Cancer

In 2009, Maria Heddleston gave birth to a child at the University of Pittsburgh Medical Center, and, as part of her care, received a breast-feeding consultation which included instructions about how to operate a breast pump machine. During the consultation and training, Heddleston complained of severe breast pain when she pumped, but this was not investigated by the attending nurses or physicians at the facility. Maria was diagnosed with breast cancer in 2010, and she sued the Obstetrical and Gynecological Associates of Pittsburgh Inc. and other individual defendants for failing to run diagnostic tests which would have given her an earlier cancer diagnosis.

During trial, Heddleston claimed that by delaying the diagnosis almost a full year, her risk of death increased. After a civil trial in Pittsburgh, a jury returned a verdict 10 – 2 in favor of the defendants, finding that the Heddlestons had failed to prove medical malpractice. On appeal, the plaintiffs argued that the trail court made an error when the judge disallowed expert witness testimony which would have affirmed the Heddleston’s argument that a diagnostic test run in 2009 would’ve caught the breast cancer early.

Judge Grants New Trial with Instructions to Include Expert Witness

During the initial trial, the plaintiffs called Dr. Barry Singer as a medical expert witness, and as part of his testimony was asked if diagnostic testing in 2009 would have caught Maria Heddleston’s cancerous tumor. Before Dr. Singer could answer, defense counsel objected, arguing that the expert testimony should have been restricted to facts about the standard of care expected by gynecologists and not the doctor’s opinion about the results of a hypothetical diagnostic test. The trial judge agreed, and the defense successfully argued during closing arguments that the plaintiffs could not prove a 2009 diagnostic test would’ve caught the cancer.

On appeal, Judge Mary Jane Bowes disagreed with the trial court, and held that Dr. Singer’s expert testimony regarding the outcome of a 2009 diagnostic test would speak to gynecological standard of care. According to Judge Bowes, Dr. Singer’s testimony that a 2009 diagnostic test on Maria Heddleston would’ve identified early stages of breast cancer suggest a failed duty to live up to the standard of care required by treating gynecologists who offer breast feeding consultations. Dr. Singer did not state during his testimony that such tests are required or even standard, but his information regarding the result of a test would, according to Bowes, give jurors the opportunity to better evaluate the level of medical care Heddleston should have received.

Pittsburgh Woman gets Second Chance at a Medical Malpractice Trial with Expert

Judge Bowes concluded that the Heddlestons deserved a new trial because of the trial judge’s failure to allow the plaintiff’s medical expert witness to theorize on the results of a 2009 cancer diagnostic test which was not conducted. This ruling demonstrates the fine line that medical malpractice experts walk between a permissible explanation about standard of care practices which medical professionals are expected to follow and impermissible testimony which opines about whether or not that standard has been met.

Medical expert witnesses like Dr. Singer in this case are typically allowed to discuss the standard of care, and then give their expert opinion on the medical care a plaintiff actually received. It is up to the jury to compare the expected standard of care with the actual care a patient received in order to issue a verdict. In this case, the appellate judge determined that a medical expert’s opinion the result of an diagnostic test which was not run did not translate to his opinion on the quality of the care the plaintiff received, and was therefore permissible expert testimony.

Expert Witnesses Testify in New York Vehicular Murder Trial

A variety of expert witnesses were called by prosecutors last week in the trial of a Florida man accused of intentionally striking a New York State Trooper with his car. Experts in vehicle collisions and blood splatter took the stand as prosecutors look to show the jury that the incident was not negligent, but a willful criminal act targeting a police officer engaged in a traffic stop.

Florida Man on Trial for Fatally Striking New York State Trooper

Almont Upton, 62, of Melrose, Florida struck, and killed, NYS Trooper Christopher Skinner with his car in May of 2014. Officer Skinner was conducting a traffic stop on a New York highway when Upton hit him, leading to his arrest and first-degree murder charge. Prosecutors dropped several other charges, including assault and reckless driving, in order to focus 100{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the case on earning a murder conviction, and not confuse jurors with other available charge options.

Upton’s defense team has proposed that the defendant could not have intentionally murdered Trooper Skinner due to a mental disease or defect which impaired his decision making at the time. Although the defense has not expanded on its defense yet, prosecutors attempted to counter the argument that Upton did not act intentionally by calling expert witnesses to explain how the nature of the collision with Trooper Skinner suggested malice and intent necessary for a murder conviction.

Expert Witnesses Testify in Almond Upton Murder Trial

Last week, prosecutors called New York State Police Collision Reconstruction Expert Travis Webster to take the stand and explain the evidence found at the scene of the collision. Webster, a state investigator who focuses on accident reconstruction, evaluated the evidence and provided testimony which supported the prosecution’s theory that Upton acted intentionally. According to Webster, Upton was traveling at 93 miles per hour when he hit Trooper Skinner, and had his accelerator pedal “100 percent to the floor.” Further, Webster’s accident reconstruction expert analysis revealed that the defendant never activated his brakes, which suggests Upton did not demonstrate any effort to avoid hitting Skinner with his pick-up truck. Finally, Webster concluded that there was nothing wrong with Upton’s truck which would have prevented him from steering out of the way or applying the brakes.

New York State Police Sr. Investigator Steve Anderson was also called to the stand as a blood stain analysis expert witness. Investigator Anderson walked the jury through the blood stains on the hood and windshield of Upton’s truck which was caused by a direct strike on Trooper Skinner. Anderson also pointed out blood stains on the tailgate of the vehicle, supporting the prosecution’s contention that Upton struck Skinner at a high rate of speed with intent to hit and kill him. Anderson concluded his expert testimony by explaining that he oversaw the autopsy of Trooper Skinner and collected his clothing from the scene in order to obtain evidence for trial.

Upton’s attorneys did not aggressively question the prosecution’s expert witnesses, choosing instead to dispute the motivation and mental state of the defendant rather than the circumstances of the fatal incident.

Prosecution Presents Case for Murder while Upton Defense Prepares Insanity Plea

After presenting its accident reconstruction and blood splatter expert witnesses, prosecutors argued that Almond Upton’s actions demonstrated “precision driving” and sufficiently reached the level of intent necessary to earn a first-degree murder conviction. Prosecutors argued that the testimony from their accident reconstruction expert shows Upton aimed to kill Trooper Skinner with his car while the officer was distracted and vulnerable before he later sideswiped two other vehicles as he attempted to make his high speed escape.

Defense attorneys representing Almond Upton will take their turn as the trial continues this week, and will undoubtedly call a mental health expert witness who will testify to the defendant’s mental state at the time of the accident. The legal standard for insanity typically requires a defendant prove he did not understand or appreciate the consequences of his actions while committing the crime, and the evidence from the state’s accident reconstruction and blood splatter experts which suggests Upton acted with malice makes the defense strategy a longshot, regardless of future expert testimony supporting mental defect.

Fire Investigation Expert Witness Report Leads to New Trial for Chicago Man

A Chicago man convicted of setting a fire which killed two people in 1993 will receive a long awaited retrial due to evidence from fire science expert witnesses. Prosecutors in the case have relented to repeated requests from the defense and agreed to a retrial after reviewing an expert report detailing modern advances in fire science technology which call the initial conviction into question.

Chicago Man Challenges Arson Conviction

Adam Gray has been serving a life sentence without parole since his 1996 conviction for setting a fire in 1993 which killed two people in an apartment building. Gray, who was 14 at the time of the fire, was angry with his girlfriend and allegedly set the fire in a building where she and her parents resided. Although the girlfriend and her family were able to escape, an elderly brother and sister who lived above the family died as a result of the fire. In addition to a confession, which Gray now claims was coerced, prosecutors relied on the testimony from fire science expert witnesses to earn a conviction and life sentence.

During Gray’s initial trial, fire investigators testified that they found charring and burn patterns consistent with a hot fire which was set intentionally and spread with an accelerant. Police investigators found a milk jug behind the burned building which contained what appeared to be the accelerant used to fan the fire, and a gas station clerk connected Gray to a purchase of fuel shortly before the fire was set. In the years since the conviction, attorneys working for Gray have identified advances in fire science investigation techniques which raise questions about the validity of the conclusions by police and the testimony by fire expert witnesses.

Modern Fire Science Expert Witnesses Challenge Arson Conviction

When Gray recanted his confession after his conviction and life sentence, his new legal team set to work challenging the physical evidence which prosecutors used to argue the fire had been set intentionally. According to his defense team, advances in fire investigation techniques suggest that the fire was not an arson at all, and what the police believed to be an accelerant was not present at the scene. Fire expert witnesses John Lentini and Gerald Hurst produced fire investigation expert witness reports which challenged the initial findings of the investigation and prosecution of Gray.

According to Hurst, fire investigators who examined the remains in 1993 were too quick to conclude that the charring and burn patterns were evidence of an arson. In an expert witness report to prosecutors, Hurst claimed that the fire investigators at the time did not have cause to rule out a conclusion that the fire started and spread accidentally. Lentini contributed his expert evaluation of the fire by saying that the substance found in the milk jug – which police concluded was the accelerant Gray used to spread the fire – was not actually present at the scene. Lentini told prosecutors that the substance in the milk jug, and the substance found on the wood of the building, were not only different, but neither were effective accelerants which could have been used to spread the fire.

Gray’s defense team presented the new fire expert witness evidence to prosecutors over a year ago, however, they were met with resistance. After initial refusals to retry the case based on the new fire science evidence, Chicago prosecutors have finally relented.

Chicago Man to Receive New Arson Trial

After a year of refusals, prosecutors in Chicago have determined that the evidence presented by modern fire expert witnesses is sufficient to grant Adam Gray a new trial for arson and murder. While the joint motion by prosecutors and defense attorneys for a new trial still needs approval from a local judge, the agreement by the district attorney to retry the case likely means Gray will have another day in court in the coming months.

Although the change of heart likely has a lot to do with the upcoming arrival of a newly elected DA who unseated the incumbent in a recent election, the prosecution’s willingness to retry a case with new expert witness testimony is an encouraging sign for other Chicago area defendants seeking to have convictions overturned based on advances in modern science.

Serial’s Adnan Syed Granted New Trial Due to Questions of Expert Witness Reliability

The subject of the first season of the popular legal podcast Serial has been granted a new trial in large part due to questions about the reliability of the prosecution’s cell phone expert witness used to convict him. An appellate court vacated the murder conviction of Adnan Syed citing the failure of his attorney to challenge the prosecution’s cell tower expert witness over some flawed logic, giving Syed an opportunity to pursue a re-trial with a different lawyer. Prosecutors have promised to appeal the ruling, but should it stand then they will need to prepare for a second murder trial.

Serial’s Adnan Syed Granted a New Trial

Late last month, Judge Martin P Welch of the Baltimore City Circuit Court granted a motion by Adnan Syed requesting a re-trial for the 1999 murder of his former girlfriend Hae Min Lee. Syed, now 35, was 17-year-old when he was convicted in 2000 for Lee’s murder, and has spent the last 16 years serving a life sentence in Maryland. In 2014, the podcast Serial introduced Syed’s case to the nation, and opened up the opportunity for attorneys to question the legitimacy of the evidence used to convict the defendant, particularly testimony from a cell phone tower expert witness called by prosecutors.

During post-conviction hearings in February of this year, Syed’s attorneys presented new evidence of an alibi witness and raised questions about the validity of the prosecution’s cell phone expert. According to Syed’s current counsel, his lawyer during the initial trial was “grossly negligent” by failing to pursue all the possible evidence which could help her client, including a counter expert who could have raised doubts about the prosecution’s case. Defense attorneys representing Syed called the ruling an important victory, but cautioned the process is far from over as the Baltimore District Attorney still has the opportunity to appeal Judge Welch’s ruling before having to re-try Syed for Lee’s murder.

Syed Motion for New Trial Focuses on Shaky Expert Testimony

One of the central figure’s in Syed’s 2000 murder trial was a cell phone tower expert witness who the prosecution used to place the defendant at the scene of Lee’s burial. In 2000, the state called FBI Special Agent Abraham Waranowitz to testify about how cell phone tower triangulation could identify a person’s location. Waranowitz discussed two incoming calls to Adnan’s cell phone which arguably made it likely that he was located in an area where Lee’s body was later found at a time shortly after her death. Waranowitz’s expert witness testimony was one of the key pieces of evidence prosecutors used to connect Syed to Lee’s death, but the expert’s reliability became a matter of interest for Adnan’s post-conviction defense team.

According to Syed’s legal team, his initial lawyer received a communication from AT&T which provided instructions on how to read and interpret cell phone activity with a notable disclaimer regarding locating phones that read, “Outgoing calls only are reliable for location status. Any incoming calls will not be reliable information for location.” Waranowitz’s expert testimony focused only on incoming calls, which, according to the AT&T information, are not reliable for location identification, however, Syed’s trial attorney declined to press the expert on that information. Attorneys for Syed argued that this failure to properly cross-examine an expert witness represented a grossly negligent failure by Adnan’s trial lawyer.

Appeals Judge Grants Adnan Syed a New Trial Citing Expert Testimony

Judge Welch agreed with Syed’s legal team, and found the failure to question the state’s cell phone tower expert about a notable flaw in his conclusion to be a key factor in granting the defendant a new trial. Judge Welch pointed out the state’s expert was “directly contradicted by the disclaimer” and went on to note that “A reasonable attorney would have exposed the misleading nature of the state’s theory by cross-examining Abraham Waranowitz. The record reflects, however, that trial counsel failed to cross-examine Waranowitz about the disclaimer.”

Judge Welch’s ruling does not guarantee Syed a new trial, but with a sound legal reasoning and legitimate questions about the reliability of the expert witness who helped put the defendant in jail, Adnan’s legal team has expressed optimism that the ruling will survive appeals. Should Adnan Syed be officially granted a new trial, his high-profile legal team will certainly present new cell phone expert witness testimony to contradict the state’s key piece of evidence which connected Syed to the scene of Lee’s burial.

Music Experts Testify in Stairway to Heaven Plagiarism Trial

Music expert witnesses have testified on behalf of plaintiffs in the Stairway to Heaven plagiarism lawsuit being heard in a US federal court. The rock band countered with a music expert of their own, giving jurors the opportunity to weigh expert opinions should the case proceed. The high profile copyright lawsuit against the surviving members of Led Zeppelin will continue this week with a ruling expected in the near future.

Led Zeppelin Sued for Stairway to Heaven

Earlier this month the long anticipated copyright lawsuit against the surviving members of Led Zeppelin over their hit song Stairway to Heaven began in a federal US District Court. Plaintiff Michael Skidmore, the trustee managing the estate of songwriter Randy Wolfe (stage name, Randy California), filed the lawsuit alleging Zeppelin stole key pieces of music found in Stairway to Heaven from Wolfe’s song Taurus. Taurus was written by Wolfe while he performed with a 60’s era rock band known as Spirit, and the plaintiff argues that members of Led Zeppelin had heard the song and liked it so much that they used its musical foundation to generate Stairway to Heaven.

The Stairway to Heaven lawsuit has been percolating for several years with Wolfe, who died in 1997, accusing Led Zeppelin members Robert Plant and Jimmy Page of stealing the song in the late 1960’s after a concert in which the two bands shared a billing. Plant and Page have steadfastly denied remembering the song or knowing who Spirit was, and have argued that while they may have heard the song before there is no evidence that they intentionally stole from Wolfe. According to the defendants, any musical similarities are coincidental. While the plaintiffs have provided several pieces of circumstantial evidence – the songs were written only years apart, the two bands performed on the same billing, and Page once praised Spirit in an interview – the case lacks hard evidence that Page or Plant intentionally stole the musical foundation of Taurus when composing Stairway.

In order to demonstrate unlawful plagiarism on the part of Led Zeppelin, attorneys for Skidmore called two music expert witnesses to explain the similarities between Taurus and Stairway to Heaven which the plaintiff argues are too striking to be coincidence.

Music Expert Witnesses Testify in Stairway to Heaven Trial

Skidmore’s attorney Francis Malofiy concluded his case by calling two music expert witnesses to the stand to connect the musical dots between Taurus and Stairway to Heaven which the plaintiffs argue provides evidence of plagiarism. Professional guitar player Kevin Hanson, who has played rock music for years and now teaches guitar lessons, took the stand and played key passages from both songs on his acoustic guitar in the courtroom. Hanson told the jury that the songs are “virtually identical,” and when the two songs were played simultaneously he testified that they sounded like one piece of music. Attorneys for Led Zeppelin had Hanson admit during cross examination that he could easily tell the two apart, but the music expert maintained that the similarities between the two pieces of music were significant.

Dr. Alexander Stewart, a musicologist, took the stand as the second music expert witness called by plaintiffs in the Stairway to Heaven lawsuit. Dr. Stewart testified that the two songs have identical downward chord progression in some places, and the “note pairs” which represent iconic components of Stairway to Heaven are shared with note pairs in Taurus. Telling jurors that both Taurus and Stairway included a unique and unusual progression from an E note to an A note which suggests Page and Plant were familiar with Spirit’s work before writing Stairway.

Attorneys for Led Zeppelin countered with an expert witness who explained to the jury that the two songs had significant differences, and any similarities between them were likely due to common musical “building blocks” many songs share.

Led Zeppelin Presents Expert Witness in Stairway to Heaven Case

Attorneys for the former members of Led Zeppelin sued for allegedly plagiarizing portions of Stairway to Heaven from the Spirit song Taurus called Dr. Lawrence Ferrara, a musicologist from NYU, as a defense music expert witness to discuss the two pieces of music. Dr. Ferrara, who played both songs on his piano in order to demonstrate differences, told jurors that the songs were largely dissimilar, even in areas that the plaintiff alleges were identical. Dr. Ferrara went on to play other pieces of music which were arguably similar to both Taurus and Stairway in order to demonstrate to jurors that there are building blocks of music which overlap across many songs, suggesting that any similarities between Taurus and Stairway to Heaven are coincidental rather than unlawful.

Members of Led Zeppelin have asked the judge to dismiss the case by alleging the plaintiffs failed to meet an adequate burden of proof. A ruling is expected later this week.

ExpertPages Blog