Author Archives: David M. Benjamin, Ph.D., Clinical Pharmacologist & Toxicologist

About David M. Benjamin, Ph.D., Clinical Pharmacologist & Toxicologist

ExpertPages Profile | David M. Benjamin is a Ph.D.- trained Clinical Pharmacologist & Forensic Toxicologist, a trained arbitrator and mediator, and a nationally-recognized scholar in Legal Medicine, Reducing Medication Errors, the Drug Development process and Forensic Toxicology. Dr. Benjamin completed his Ph.D. in Pharmacology at the University of Vermont College of Medicine in 1972 and did his specialty training in Clinical Pharmacology & Toxicology at the University of Kansas Medical Center in 1972-73. He then spent 12 years in the pharmaceutical industry conducting clinical research, assessing adverse drug effects, writing package inserts, and filing INDs and NDAs. Dr. Benjamin has authored more than 275 presentations and publications and 9 textbook chapters. He is a Fellow of the American Academy of Forensic Sciences (toxicology Section), the American Society for Healthcare Risk Management, the American College of Clinical Pharmacology and the American College of Legal Medicine, and is a member of the Society of Forensic Toxicologists. Dr. Benjamin teaches Clinical Pharmacology and Reducing Medication Errors at Tufts Medical School and Forensic Toxicology and Pharmaceutical Drug Development at Northeastern University School of Pharmacy, where he is an Adjunct Associate Professor (2005-present.). Dr, Benjamin also is known for his work on the Commonwealth v. Christina Martin case where he was featured on Forensic Files and for his recent work on the Kerry Kennedy DUI Ambien case which resulted in a ”not guilty” verdict..

Expert Opinion on Probable Cause in Michael Brown and Eric Garner Deaths

The recent deaths of Michael Brown in Ferguson, Missouri and Eric Garner in New York have alerted us to the concept of probable cause and how it is used by grand juries to reach a decision as to whether or not a crime was committed. In the cases of Michael Brown and Eric Garner, the alleged crimes were associated with excessive force and racial discrimination charges against police officers who were acting under color of authority. In both of the above situations, minor offenses had been committed, but both Michael and Eric ended up dead as police officers tried to interview or arrest them for alleged criminal activity.

Those of us who participate in the criminal justice system are familiar with the term probable cause.  If you do drunk driving cases, you know that probable cause is the standard used by police officers to stop citizens who they suspect are driving under the influence of drugs or alcohol, and deprive those drivers of their liberty (to continue driving). Probable cause is also the standard used by grand juries to determine whether or not a crime was committed and an indictment for that crime is indicated. So, probable cause is a threshold standard for initiating government or police actions against the citizen.

Probable cause has its origin in the Fourth Amendment to the Constitution of the United States. The Fourth Amendment deals with unreasonable searches and seizures, and reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Definition of Probable Cause

But what is probable cause, and how is it defined? The Fourth Amendment does not define it, it says only that probable cause is the standard required by law enforcement to initiate a search or seizure, and, as we have recently learned, the standard for a grand jury to return an indictment.

In researching the definition of probable cause, the one thing that comes across very plainly is that the courts are not enthusiastic about defining it. This is because a precise definition would never cover all of the many different circumstances a police officer encounters in the field on a daily basis. Therefore, the precise amount of evidence required to establish probable cause often depends on the circumstances of the case. A frequent example would involve a police officer who stops a driver for going through a red light. Normally, going through a red light would not provide the police officer with an adequate basis (probable cause) to search the driver and the driver’s vehicle. However, if the police officer notices that the driver’s eyes are red, that his/her speech is impaired, and that the driver is having difficulty exiting the vehicle and standing, the officer would have sufficient probable cause to detain the driver, question him/her and possibly search the driver and the vehicle for drugs.

Probable cause has to consist of more than just a hunch on the part of the police officer, but certainly less evidence than would be required to convict a citizen in the criminal courts. Although probable cause is often a subjective determination, most definitions that have appeared in the case law contain language similar to the following:

Probable cause exists with the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, and are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.  (See: Brinegar v. United States, 338 US 160 (1949)). So, like many other concepts in the law, the need for reasonableness and trustworthiness are important in forming probable cause.

Probable Cause and Michael Brown’s Death

How does the definition of probable cause enter into the grand juries’ decisions in the Michael Brown and Eric Garner deaths?

One factor that must be borne in mind about grand jury deliberations is that presentations to the grand jury are made only by prosecutors, and the defense has no say in what is presented.  Prosecutors may present as much or as little evidence as they feel is necessary to persuade the grand jury to return an indictment. One must also ask, can a prosecutor who needs the assistance of a police officer to testify at trial about the culpability of the defendant, present an objective, unbiased summary of the evidence to the grand jury? The answer is that presentations to the grand jury are neither objective nor unbiased, and these presentations have no other purpose than to get the grand jury to find the existence of the necessary probable cause that a crime was committed, and return an indictment for all criminal conduct the grand jurors conclude did occur with probable cause.

The issue in the shooting of Michael Brown is:  was there probable cause sufficient to justify the use of lethal force against Michael Brown by the police officer. The evidence has centered around conflicting eyewitness testimony and the results of three autopsies. One autopsy was conducted by the state of Missouri, one autopsy was conducted by the federal government, and one autopsy was allegedly conducted by forensic pathologist, Michael Baden, M.D., who was retained by the Brown family. The word “allegedly” is used because some suspicions have arisen as to whether or not Dr. Baden actually performed the autopsy or if the autopsy was performed by a technician.

The most relevant evidence produced by any of the autopsies involved (1) the number of wounds sustained by Michael Brown, and (2) where the entrance wounds and exit wounds were located.  Identification of the entrance wounds and exit wounds would provide evidence as to whether or not Michael Brown was facing the police officer or running away from him, both of which scenarios have been offered by the fact witnesses. Many of us know that forensic evidence is a far more powerful tool than testimony from fact witnesses, who frequently report what they think they saw rather than what actually occurred, leading to conflicting testimony in controversy, which confounds the final assessment of what actually transpired at the time of the incident under discussion.

In the Michael Brown case, there is evidence to indicate that the altercation between Brown and the police officer began in the police officer’s cruiser. Allegedly, Michael Brown’s blood was found on the officer’s gun and the officer was found to have a bruise on his face, consistent with his testimony that Brown had assaulted him. Entry wounds on the hands and arms of Michael Brown were not dispositive in determining whether or not Michael had his hands up in the “I surrender” position, which has spawned the “don’t shoot” motto that has become associated with Michael’s death, and the movement to support indictment of the police officer who shot him. However, the fact that the grand jury failed to indict the officer indicates that the grand jury did not find probable cause to conclude that the officer shot Michael Brown without an adequate basis to do so. For now, this means that they will not be a criminal trial in state court against the police officer for any type of homicide, such as murder, manslaughter, or negligent homicide. Most likely, these issues will be litigated in civil wrongful death cases where the standard of proof will be preponderance of evidence, or more likely than not, rather than the criminal standard of beyond a reasonable doubt. In such cases, the family only can hope to obtain a monetary damage award from either the police officer himself, the municipality that employed him, or both, depending upon who was sued. Certainly, the police officer does not have to fear going to prison as a result of a civil case, but a large damage award is certainly possible.

Personally, the evidence is equally strong for both the Brown family and the police officer, and that it will be quite difficult for the Brown family to prevail in a civil wrongful death action.

The other alternative open to the Brown family would be to file a federal discrimination case based on racial factors. Such a case would allege that Brown’s death was somehow associated with the fact that he was Afro-American and the police officer was Caucasian. However, on a superficial analysis, race did not appear to be a factor in Brown’s death and the major provocation for the shooting appeared to be related to the police officer’s perception and belief that Brown was coming toward him in a menacing and assaultive manner which caused the police officer to be in fear for his safety and life. Under such circumstances, the police officer believed lethal force was appropriate and kept shooting at Michael Brown until Brown fell to the ground, dead.

Probable Cause and Eric Garner’s Death

The Eric Garner case has many more aspects of law associated with it, then Michael Brown’s case, and in my opinion, is easier to analyze although the issues are more complicated and complex. First of all, with Eric Garner, I’m not sure what he was arrested for and I’m not sure that probable cause was established.

It was alleged in the press that Eric Garner had been arrested on numerous occasions for selling cigarettes without a tax stamp on them. However, from the videos of his encounter with the police, I did not see any cigarettes in his hands at the time of the altercation. That does not mean he did not have them in his possession, it just means that I could not see them from the video.  At some point in time, the police officers concluded that they had sufficient probable cause to place him under arrest and began moving towards him to handcuff him and take him into custody. One police officer sort of snuck up on them from behind, wrapped his arm around his arm around his neck, and attempted to pull him to the ground so they could handcuff him. When the police officer put his arm around Eric ‘s neck, it was not clear as to whether or not the police officer’s arm was cutting off Eric’s air supply or pressing on his carotid artery or jugular vein. Either way, Eric was pulled to the ground and put in the prone (face down) position, at which time the other officers began yelling “put your hands behind your back” and one or two of them put a knee to his back, or got on top of him and weighed him down onto the hard sidewalk. At that point in time, Eric began to yell “I can’t breathe” which he repeated several times, which became the mantra for Eric’s death as “don’t shoot” was for Michael Brown death.

A lot of media time has been directed at whether or not Eric actually was being choked or just wrestled to the ground. One of the reasons for this is because Eric was still able to call out “I can’t breathe” which indicates that Eric was still able to move air in and out of his lungs. From the videos and my knowledge of respiratory physiology, it appears that what caused Eric to stop breathing was the fact that his chest was being pushed into the hard sidewalk and he was unable to inhale and exhale, due to the weight of the officers on his back which inhibited chest excursion. This is analogous to a boa constrictor wrapping itself around you and tightening its grip around your chest every time you exhale. At some point in time, you can no longer inhale or exhale and you suffocate from lack of oxygen.

This brings up the second stage of what occurred during Eric’s death. Once he stopped breathing and the officers recognize that, they failed to do any type of CPR to restore his breathing. They did call for a paramedic or an EMS technician who was shown in the video to be looking at Eric, but not administering any type of first aid, CPR or assistance in restoring breathing. This brings up a negligence claim and a claim that the police officers failed to care for Eric while he was under arrest and in their care. When you are arrested, law enforcement has a duty to care for you and not allow you to be subject to injury or death. Probably the best-known deviation from that duty to care occurred when Jack Ruby was able to shoot Sirhan Sirhan, after he had been arrested for the shooting of President Kennedy.

So, in the case of Eric Garner, the issues appear to start with (1) what crime did Eric commit, (2) was there adequate probable cause for the officers to place him under arrest in the first place, (3) did the officers commit a negligent homicide by putting him in the prone position, and piling on his back, and (4) did they fail to care for him when he repeatedly called out, “I can’t breathe”? Next, there is the question of whether or not the EMS technician acted negligently by not taking any action to get Eric breathing again. However, by this time Eric was dead, and there may not have been anything s/he could have done to reverse that.

Ethical Issues in the Legal System

Ethical Issues in the Legal System: A Dual Standard for Lawyers and Experts

In 1993, prior to Daubert, the civil courts had been over-run with two decades of Toxic Tort and drug product liability suits involving DES (diethylstilbesterol), oral contraceptive pills, Bendectin, intrauterine devices (IUDs),  DPT/MMR (diphtheria, pertussis, tetanus, measles, mumps, rubella) Vaccines, L-Tryptophan. Concurrently the civil defense bar was waging war against all plaintiffs’ liability experts and yelling “Junk Science” and “hired gun” to try to ward off the onslaught of law suits that threatened to drain their wealthy pharmaceutical company clients.   The pharmaceutical defense lawyers got rich and the experts who dared to testify against their clients got maligned.  A.H. Robbins went out of business as a result of the Dalkon Shield litigation, and Merrell-Dow Pharmaceuticals removed Bendectin, a perfectly fit drug for nausea associated with pregnancy, from the market in 1983 due to excessive costs of litigation and insurance.

This brief article exposes the dual standard of ethics for lawyers and experts, and demonstrates how experts have become the scapegoat for the inadequacies of the legal system.  The fact is, the legal system is either unwilling or unable to police themselves, and tries, instead, to cover that defect by blaming the innocent testifying expert.

Many of the legal cases that have occupied much of our time and energy over the past three decades have involved drugs or pharmaceuticals, e.g., Bendectin from Daubert, carcinogens in Joiner, birth control pills and devices (IUDs), and nutritional supplements.  So it is both ironic and appropriate that this piece on ethics and the interface of science and law be penned by a practitioner of pharmacology and toxicology.

On the criminal law side recently, there has been re-focused attention on constitutional issues and how difficult it is for the criminal defendant to obtain his/her 6th Amendment right to confront the evidence against him at trial, when prosecutors fail to disclose exculpatory evidence under  Brady v. Maryland and encourage government witnesses to deliberately mislead the jury.  The future of the justice system and fundamental fairness in our courts will require the courts to sanction those practitioners and abusers, and to obtain more input from qualified experts, perhaps through the use of more FRE 706 panels in adjudicating cases.  Enforcing standards of ethics and adherence to “The Oath” also have been identified by the report of the National Academy of Sciences and the American Academy of Forensic Sciences as essential to improving the reliability of testimony and the quality of justice in our jurisprudence system today.

Having a reliable scientific test result, like a “confirmed” urine test for amphetamine is fine; but the problem shows up when an expert testifies that he/she can opine with reasonable scientific certainty that the person with the positive urine test was impaired.  Urine tests can never be used to infer impairment, only a window of time during which a drug may have been taken or administered.  Often a urine test does not test for the drug in question.  For example, urine tests for cocaine are usually done for one of cocaine’s metabolic products (metabolites) benzoylecgonine (BE), but BE will not get the user “high” or cause impairment.  The same can be said for marijuana.  THC, the active ingredient in marijuana, is not found in the urine; what is found is the acid derivative of THC or THCA, which is inactive whether smoked or eaten in brownies.  Yet state governments take urine samples from alleged “drugged drivers” and then the government’s experts come into court and say that is evidence of impairment.  States also have established “per se” levels of various drugs in urine which the law says indicates impairment.  It does not; it indicates possible prior exposure, not impairment at the time of the stop.

The road to excellence in jurisprudence is an ethical issue, not a scientific one.  Ethical behavior must be required, and those who breech the standard must be sanctioned by the courts.  Many years ago, I was interviewed on TV.  The host asked me about “legal ethics” and I told him that it was an oxymoron.  Although he laughed and shook his head, the die had been cast, and the genie was out of the bottle.

In order to improve the system, the courts have to take a long look at their current practices, scrutinize its function, and submit to external constructive criticism and self-critical analysis.  With each shortcoming identified, the courts must actively deal with each breech or misuse, whether they like it or not.  It seems that every week, a state-run forensic lab in a different city, hits the news media regarding fraud, perjury, and unethical behavior by a supervisor or analyst.  We have had two such major occurrences here in Boston.

I have voiced opposition before and taken many “semi-lethal” barrages over it. But in the criminal arena, the prosecutors “force” the government experts to misrepresent their testimony in an attempt to win weak cases, which probably should not have been prosecuted in the first place.  As a prospective witness for the defense, I can tell the attorney I have nothing favorable to say on behalf of the defendant and that I will not testify, but government employees are subject to the pressure of the prosecutor and can be compelled to testify (falsely). The usual scenario goes something like this:

Prosecutor:  “I need you to say that the earth is flat or I can’t win the case.”

Expert: “But everyone knows the earth isn’t flat”.

Prosecutor: “If I say it is flat, it is flat, got it?”

That’s the type of treachery we have to deal with.  Recall the “Duke ‘rape case’?”  The prosecutor knew the alleged rape victim had been with several men because they found DNA from different men in the secretions in her underwear.  Still, he pursued a rape charge rather than recognizing that consensual sex had occurred.  That conduct cost him his license to practice law, and justifiably so.

Fortunately, I have had good working experiences with state prosecutors.  I testified when I found strong evidence that a crime had occurred, and refused when the evidence was equivocal.  That’s the way it should be all the time … but, alas, it isn’t.  If the people cannot rely on the courts to police themselves and enforce the rules in order to provide Equal Justice to All, then just where is this high quality of justice our founders envisioned?  The evidence indicates that the problem is not the concordance of science and law, but the inability (or lack of desire) of the legal system to police itself and ensure adherence to ethical, civil and criminal rules of procedure.  Prosecutorial misconduct is rampant, and law enforcement routinely misrepresents facts to the jury.  Judges passively protect the lawyers by taking no remedial action, and in so doing, encourage future abuses.  There is an old saying that when government experts testify, their testimony should be preceded by four little words, “Once upon a time….”

Are you sure you want to work as an expert in this system?  Then you’d better have a strong stomach and robust constitution.

The Ten Commandments of Testifying at Trial

The Ten Commandments of Testifying at Trial

     From the moment you enter the parking lot, be polite to everyone you encounter. This means in the coffee shop, the rest rooms, and hallways, as well as the courtroom.

II     Address the attorneys by name, or as Sir or Ma’me, and the judge as Your Honor.

III    Remember that the reason that you are in court is to help the jury understand the scientific and technical aspects of the case.

IV   Focus on communicating in words the jurors can understand. Avoid jargon, and speak in    clear, concise “sound bites.”

V    Dress like a professional. Avoid excessive jewelry, outrageous neckties, and lapel pins.

VI   Always tell the truth, as opposed to a lie. The whole truth, as opposed to a “half-truth.” And nothing but the truth – which means don’t embellish your answer with misleading qualifiers.

VII   Don’t be afraid to say, “I don’t know,” that means that you did know the answer to theother questions you answered.   On cross-exam, 80% of questions will begin with, “Isn’t it a fact …,” “Wouldn’t you agree…,” “Is it fair to say …,” or “Isn’t it possible …” Listen attentively to all questions. If there is something you don’t understand, ask for clarification or rephrasing.

VIII   Always take the time to prepare for direct and cross-examination with the sponsoring Attorney. If the attorney balks at paying you for your time – do it for free! Don’t go to court unprepared and think you can “wing it.”

IX    Recognize that cross-examination is confrontational, and see it as an opportunity to demonstrate grace under pressure. Never get defensive. If something nasty or untrue is alleged, don’t lose your temper, just politely and respectfully state that he/she is mistaken.

   Be yourself, have fun with the questions, and remember that you know more about your field than any other person in the courtroom – that is your expert advantage!

On Being an Effective Expert or How to Help the Jury do Their Job!

Being an effective expert means “Never forgetting that your job is to help the jury do their job.”  Even the Rules of Evidence recognize that experts help the jury, and helping the jury is what testifying as an expert is all about.

Several years ago, I was fortunate enough to hear Judge Hiller Zobel speak at the SEAK conference.  Judge Zobel made some suggestions that are worthy of repeating.  First of all, leave your ego at the door.  Testifying in court is not an opportunity to show the jury how smart you are, nor is it an opportunity to try to impress them with your vocabulary.  Instead, it is a time to provide the jury with helpful analogies that will assist them in understanding the technical material you have mastered.

Think back to the teachers and professors you admired most in high school, college and post-graduate training.  They were the men and women who took the time to think about the information they had to convey and presented the material in a well-organized, interesting and understandable way.  They were not concerned with impressing you with their understanding of the material; they were determined to teach it to you so you could acquire it, and hopefully pass it on to others.

One woman physician I know told me she presents her potential testimony to her pre-teen and teenaged children.  If they don’t understand what she was saying, they give her an “Oh, Ma”, and she goes back to the drawing table.  If they tell her, “Hey, Mom, that’s cool”, she knows she was successful.

Jurors are comprised of people from all walks of life.  Some have been to high school and not gone further, others have been to college.  Either way, there is no typical juror, and there is no “standard education” for jurors.  The one thing that I do know about jurors is that they are very serious about doing their job correctly and take great pride in reaching a fair and well-reasoned decision.  As the testifying expert, you are among those who supplies the answers to some of the questions they have that contribute to that decision.

The one thing that has always impressed me about lawyers is how familiar they are with the details of the case.  Lawyers seem to remember every date and every time.  Jurors notice this too.  When jurors have been polled after trial, many jurors have commented on how well-prepared the lawyers were.  Therefore, if you want to impress the jury, make like a Boy Scout and “Be Prepared.”

Being prepared means being familiar with the facts of the case, and being able to handle questions on cross-examination with facility and aplomb.  If you are not an expert in your field and can’t answer fundamental questions about your discipline, you should not be in court.  You are a charlatan.  This means never representing yourself as an expert in a field in which you are unfamiliar.  A little bit of knowledge is dangerous, and you will get slaughtered by the opposing attorney on cross-examination.

If you think you can “fake it,” you cannot.  It is not the attorney who will be making up the questions, it is the real expert on the other side.

Last year at the forensic sciences meeting, a colleague of mine asked me to quiz one of the toxicologists in his laboratory on the basics of narcotic pharmacology.  I asked him three basic questions, and he could not answer any of them.  The young man is far more adept at working at the laboratory bench than I am, but he does not have a good working knowledge of basic narcotic pharmacology.  Don’t get caught in that trap.  If the expert on the opposing side of the case really knows his/her stuff better than you do, you could be in for a trip to the woodshed.

Another good way to prepare to testify is to prepare the questions you want the attorney to ask you, then think long and hard about how to answer them succinctly.  In the courtroom, less is more.  Try to answer in “sound bites.”  Don’t drag on and on.

Do not be afraid of saying, “I don’t know.”  After all, who among us knows it all.  If you don’t know the answer to a question, say so.  The jury will appreciate your honesty and recognize that the questions you answered, you probably did know what you were saying.  If you make an error–Speak up and correct yourself.  “Excuse me, I think I mis-spoke.  It was 8 am not 8 pm that the accident occurred.”

Please, be yourself.  Don’t try to be someone else.  You’re not Quincy, and you’re not Perry Mason.  Don’t make jokes, respect the sanctity of the courtroom.  If something funny is said or happens, it is okay to laugh.  But the courtroom is no place for levity.  Someone was hurt, died or stands to lose a lot of money.  Be respectful.  Dress neatly and professionally, and do not wear expensive jewelry.  Treat everyone you encounter in the parking lot, the line in front of the metal detector, and in the hallways as politely as possible.  You never know who they are, or if they are going to show up in the jury box while you are on the witness stand.

Finally, I’ll end where I began.  You are in court to help the jury determine the facts at issue.  Do your homework, be prepared, and teach the jury what they need to know.  If you master this simple, yet sophisticated approach, you will make an outstanding contribution to the justice system and can hold your head up high even when the cross-examining attorney is trying to destroy you.  And, I say to you, the measure of a person is grace under pressure, and as Rudyard Kipling said (generically), “If you can keep your head when everyone around you is losing theirs, then you are a man my son!”