Author Archives: Kimberly DelMonico

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

Court room

Prosecution Challenges Psychologist Testimony in Rape Case

The prosecution in a Santa Cruz, California rape case is challenging the credibility of a proposed defense expert on sexual consent.

The Crime

Christian Daniel Rodriguez, 29, of Watsonville, California is accused of raping and restraining a woman on September 11, 2015. Rodriguez is charged with five felonies: two charges of rape by force or fear involving an impaired victim and a victim who is falsely imprisoned; two charges of forced sodomy; and false imprisonment. Rodriguez has denied all charges.

The Trial

Rodriguez was tried for the first time in January 2017, but the jury was unable to reach a unanimous verdict. The vote was deadlocked 11 to 1. Rodriguez was scheduled for a retrial. The retrial was postponed four times during 2018. Rodriguez’ second trial finally began on January 30, 2019. He has been held in Santa Cruz County Jail since December 4, 2015 with a bail that was set at $100,000.

Rodriguez’ current trial is being held in front of Santa Cruz County Superior Court Judge Stephen Siegel. Multiple witnesses have testified, DNA evidence has been filed, and a transcript was read from previous testimony by the woman who has alleged that she was raped. There was also a transcript from the prior case where a witness confirms that someone was held down and raped.

Rodriguez has nine prior criminal cases that have been tried in Santa Cruz County Superior Court. In 2010, he was convicted of having sex with a minor more than three years younger than him and soliciting or encouraging a minor in connection with the sales or transport of a controlled substance.

Expert Witness Controversy

Public defender Alyssa Thompson is representing Rodriguez. Thompson proposed to add Dr. Deborah Davis as an expert witness to testify on Rodriguez’ behalf.

Dr. Davis is a professor at University of Nevada who specializes in psychology and law. Specifically, Dr. Davis focuses on the areas of: witness memory, false confessions, issues of sexual consent, rules of evidence, and jury research. Prior to her tenure at University of Nevada, Dr. Davis served as an assistant professor of psychology at Georgia State University and Southern Illinois University and as a post-doctoral research associate at Ohio State University, where she received her Ph.D. She also currently serves on the Faculty of the National Judicial College.

Attorney Thompson submitted a PowerPoint presentation that described the topics of Dr. Davis’ testimony. Prosecution took issue with the contents of the presentation.

Assistant District Attorney Steven Moore filed a motion that disputed the credibility of Dr. Davis on the issue of sexual consent. He wrote, “The use of statistical charts to prove consent or a defendant’s mental state is not admissible . . . . If it were, the people would call rape experts to show that only two percent to eight percent of women falsely report rape. I would then argue that just based on the report alone, our case is proved to be 92 percent to 98 percent accurate.”

Human brain

Expert Testifies SC Man Charged with Killing 5 Children Has Brain Defects

A brain expert has testified that the Lexington, South Carolina man who is charged with killing his five children has suffered from long-term brain injuries.

The Crime

In 2014, 37-year-old Timothy Jones, Jr. killed his five children. According to prosecutors, Jones killed his son Nahtahn, 6, after the boy broke an electrical outlet in their mobile home on August 28, 2014. Jones then strangled his 8-year-old daughter Merah and his 7-year-old son Elias with his hands. Jones then wrapped a belt around the necks of his 2-year-old son Gabriel and 1-year-old daughter Abigail and ended their lives.

Jones reportedly stuffed all of the bodies in garbage bags, loaded their remains into his Cadillac Escalade SUV and drove them through four different states. He finally dumped his children’s bodies in a deserted part of Camden, Alabama.

On September 6, 2014, Jones was arrested at a police checkpoint in Smith County, Mississippi after an officer detected what he described as “the smell of death” along with blood, maggots, and synthetic marijuana.

Under police questioning, Jones admitted to killing his children, but said that he did so as preemptive self-defense. Jones stated that he was worried that they would “chop him up and feed him to the dogs.”

Jones was charged with five counts of murder in connection with his children’s deaths. He faces the death penalty if convicted.

Murder Trial

Jones’ defense team has conceded that Jones killed his children, but he has pleaded not guilty by reason of insanity. In their opening statements, Jones’ lawyers claimed that he suffers from undiagnosed schizophrenia. Jones’ defense team brought in a brain expert to testify in his defense.

Dr. Travis Snyder is a neuro-radiologist from Las Vegas. He testified via prerecorded testimony about his examination of an MRI scan that was taken of Jones’ brain in April 2018. Dr. Snyder testified that he found evidence of “serious traumatic brain injury” in the left frontal lobe of Jones’ brain. He categorized this injury as a decompressed skull fracture. This testimony aligns with earlier defense statements that Jones was involved in a bad car accident as a teenager.

Dr. Snyder testified that people with injuries such as Jones’ may experience such symptoms as lower IQs and trouble focusing. However, not everyone has the same side effects. With regards to Jones’ MRI scan, Dr. Snyder testified that “You can have injuries to the corpus callosum, in a traumatic brain injury, but it could potentially relate to schizophrenia or schizoid-effective type disorders, it’s a positive correlation . . . it’s very difficult to [diagnose] schizophrenia from an MRI. I want to be clear to the jury, to diagnose schizophrenia from an MRI is very difficult.” Dr. Snyder testified that the scan indicated a likelihood of a schizophrenia diagnosis.”

However, Dr. Snyder also testified that current scientific research does not indicate that traumatic brain injuries cause schizophrenia. He said, “I don’t think it’s accepted medical fact that a traumatic brain injury causes schizophrenia, there may be some research that talks about it but schizophrenia does not have [a] known cause, it’s multi-factorial.”

Update

Notwithstanding Dr. Snyder’s testimony, the jury found Jones guilty. He has been sentenced to death.

DOJ Seeks to Limit Expert Testimony in CVS-Aetna Merger Case

CVS and the U.S. Department of Justice are seeking to block or limit the testimony of the American Medical Association’s proposed witnesses in the CVS-Aetna merger review.

The DOJ’s New Scrutiny of Vertical Mergers

In December, CVS Health, the nation’s largest pharmacy chain, agreed to purchase Aetna, the third largest health insurance company for $69 billion. This deal represents a vertical merger, where two companies who work in similar industries want to combine.

Until recently, vertical mergers did not raise concern for regulators. However, the Department of Justice’s Antitrust Division recently filed a lawsuit against AT&T after it agreed to acquire Time Warner. The AT&T-Time Warner deal went through, but it caused uncertainty about what factors the Federal Trade Commission and the DOJ will use to evaluate similar cases.

CVS and Aetna Merger

The CVS and Aetna merger agreement came about ten months after Aetna terminated its agreement to buy its competitor, Humana, for $37 billion. A federal judge had ruled that Aetna’s purchase of Humana would violate antitrust laws.

Here, the Department of Justice challenged the CVS and Aetna deal on the grounds that the merger would harm competition in the Medicare Part D market in some locations in the United States. To settle the DOJ’s antitrust concerns, CVS and Aetna sold Aetna’s Medicare Part D business to WellCare Health Plans. Following the sale, the deal was closed in November.

Tunney Hearing

Under the Tunney Act, courts have the power to review DOJ decisions. Here, federal District Court Judge Richard Leon ordered a Tunney hearing to review the parties’ consent decree. Essentially, Judge Leon is tasked with reviewing the CVS-Aetna merger. Judge Leon’s role is to examine the settlement agreement between the DOJ, CVS, and Aetna and determine whether it is in the public’s best interest.

Judge Leon has previously voiced his skepticism of the deal that CVS and Aetna struck with the DOJ. He said that the settlement only addresses “about one-tenth of 1%” of the issues with the merger.

Proposed Expert Witnesses

Judge Leon released a list of witnesses that consisted of representatives of groups that had filed amici curiae briefs against the deal, including the American Medical Association and the American Antitrust Institute.

CVS and the DOJ objected to the American Medical Association’s proposed economics and health experts, Richard Scheffler and Neeraj Sood, and antitrust legal expert, Tim Greaney. The government also objected to other witnesses proposed by the AIDS Healthcare Foundation, Consumer Action, and U.S. PIRG.

Attorneys for CVS and the Department of Justice filed motions arguing against allowing the amici curiae witnesses to testify because the testimony is likely to be outside of the bounds of the limited review of the Tunney hearing.

CVS argued that the amici curiae “have made clear they intend to use these Tunney Act proceedings as a platform to present theories of purported harm to competition that the government has not alleged — theories the government in fact rejected after a lengthy and thorough review.”

Rapper Drake

Expert Witness Files Small Claims Case Against Drake

An expert witness has filed a small claims case against Drake, claiming that the rapper failed to pay his expert witness fees.

The Original Lawsuit

Drake, the Canadian rapper, singer, songwriter, actor, and producer, was involved in a legal dispute with the production company, Hebrew Hustle. 

On April 16, 2014, Hebrew Hustle and the Estate of James Oscar Smith sued Drake and Cash Money Records, claiming that Drake had infringed upon one of their songs. Hebrew Hustle claimed that Drake willfully infringed their song by using an unapproved sample of the late Jimmy Smith’s 1982 song “Jimmy Smith Rap” on his “Pound Cake/Paris Morton Music 2.”

Drake filed a countersuit. In his suit, Drake claimed that Hebrew Hustle and its founder, Stephen Hacker, had improperly used Drake’s name and likeness to promote his business by implying that he had worked with Drake. The claimed implication was in a line of text on the Hebrew Hustle website. The line at issue, which has since been deleted, read, “[Hacker] played a heavy hand with his clients in the creation of hit songs for the likes of Eminem, Jay-Z, Kanye West, Lil Wayne, Drake, Nicki Minaj, and others.”

Drake argued that Hacker and Hebrew Hustle had engaged in false endorsement and violated his right of publicity. He also claimed mental distress, claiming that the name of the company “perpetuates stereotypes regarding persons of Jewish heritage, such as [Drake].”

On May 30, 2017, the United States District Court for the Southern District of New York dismissed with prejudice all the Copyright Claims that Hebrew Hustle and the Estate of James Oscar Smith had filed against Drake.

Expert Witness Testimony

Drake retained CMG Worldwide Founder & Chairman, Mark Roesler, to testify on his behalf in his lawsuit. Roesler has been described as a “dominant force in the evolving intellectual property arena.”

Drake and Hebrew Hustle eventually settled their dispute. According to the agreement, Hebrew Hustle “agreed to compensate [Drake] on confidential financial settlement terms for the False Endorsement and Right of Publicity claims and also to the entry of this consent order.” The parties also agreed that Hebrew Hustle was prohibited from ever using Drake’s name or image on their website.

The agreement provided that:  Hebrew Hustle can no longer use Drake’s name, image, and likeness. Drake’s claims were now considered dismissed with prejudice. Each party would pay their own attorney fees and legal costs. The consent order did not prohibit Hebrew Hustle from appealing their case against Drake. In any post-appeal proceedings on copyright claims, each party’s respective legal rights are fully reserved.

Small Claims Filing

This month, Roesler filed a small claims suit against Drake. The expert claims that Drake never paid him the fee that they agreed upon for his testimony that was given at the October deposition.

Roesler claims that he was deposed in October 2018 for over 8 hours. He claims that Drake agreed to pay a $5,312 for Roesler’s services, but he has not received that amount.


Photo Credit: Drake [CC BY 2.0], musicisentropy.

Domestic violence

Oklahoma Governor Signs Bill Allowing Expert Testimony in Domestic Violence Cases

Oklahoma Governor Kevin Stitt has signed into law a piece of legislation that will allow expert witnesses to testify in cases of domestic violence about the effects of violence on their victims and their children and the risks that abusers pose to the victims and children.

Oklahoma Senate Bill 958 was a bipartisan bill that was sponsored by Senator Kay Floyd [D] and Representative Kevin West [R]. The bill was intended to clarify the admissibility of certain expert testimony.

Amended Statute

The bill amends 22 O.S. 2011, Section 40.7 to read:

In an action of a court of this state, if a party offers evidence of domestic abuse, testimony of an expert witness including, but not limited to, the effects of such domestic abuse on the beliefs, behavior and perception of the person being abused shall be admissible as evidence.

The bill was passed unanimously by the House of Representatives.

Legislative Intent

The new legislation clarifies that in Oklahoma courts, if a party presents evidence of domestic violence, an expert witness may testify about the effects of violence on the abused. 

Bill co-sponsor Representative West said of the legislation, “It is not acceptable that expert testimony regarding the effects of domestic violence on children and other family members is excluded. . . . I am confident this will be a significant benefit to victims of domestic violence throughout our state, as well as a wake-up call for the abusers.”

The bill’s other sponsor, Senator Floyd, said, “Expert witnesses should be allowed to present research-based and data-driven testimony on the effects of domestic violence on children. This change is long overdue.”

Impact of Legislation

The prior version of the statute did not allow testimony that included the impact of domestic violence that was witnessed by children or allow the presentation of evidence that shows the common traits of abusers, the various types of domestic violence, generational cycles of violence or treatment options.

The updated version of the statute allows such testimony; however, it will still be subject to vigorous cross-examination. The court will remain the gatekeeper of evidence and testimony that is allowed to be presented at trial.

Rules of Evidence

In Oklahoma, the rules of civil procedure allow testimony by expert witnesses.

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise, if: 

     1. The testimony is based upon sufficient facts or data;

     2. The testimony is the product of reliable principles and methods; and

     3. The witness has applied the principles and methods reliably to the facts of the case.

12 OK Stat § 12-2702 (2014)

Oklahoma follows the Daubert test for the admissibility of expert witness testimony.  Scruggs v. Edwards, 154 P.3d 1257 (Okla. 2007). Under Daubert, the court should ask four questions to help determine the admissibility of expert testimony: “1. Can the expert’s theory or technique be, or has it been, tested; 2. Has the expert’s theory or technique been subjected to peer review and publication; 3. Is there a “known or potential rate of error … and the existence and maintenance of standards controlling the technique’s operation; and 4; Is there widespread acceptance of the theory or technique within the relevant scientific community.”

Fire

Fire Marshal Testifies in Ghost Ship Warehouse Trial

The former assistant fire marshal for the city of Oakland offered expert testimony in the Ghost Ship warehouse trial.

The Ghost Ship Warehouse Fire

The Ghost Ship warehouse fire occurred at 1309 31st Avenue in Oakland’s Fruitvale district late on the night of December 2, 2016. The building was a former warehouse that had been turned into an artist collective that was known as the Ghost Ship.

At the time of the fire, the collective was hosting a music concert at the warehouse featuring artists from the house music record label 100% Silk. During the party, a fire occurred and 36 people were killed.

Criminal Charges

The Alameda County District Attorney’s office investigated the cause of the fire. The investigation revealed emails from 2014 that allegedly described serious electrical problems in the building.  On June 5, 2017, the master tenant Derick Almena and his assistant and creative director Max Harris were charged with 36 counts of felony involuntary manslaughter in connection with the deaths.  Both pleaded no contest; however, the judge overseeing the case discarded the plea deal and the case continued to trial.

At trial, Alameda County prosecutor Casey Bates alleged that the two are criminally liable for the fire because there was no time and no way for the people to escape the party, as the warehouse lacked important safety features such as fire extinguishers, smoke alarms, and exit signs. Bates also claims that Almena and Harris violated the terms of the warehouse lease by turning it into a living space and throwing underground parties there.

To defend Harris and Almena, their attorneys, Curtis Briggs and Tony Serra, claim that the fire was an act of arson that could not have been prevented.

Expert Witness Testimony

Alameda County prosecutor Bates proposed Cesar Avila to testify as an expert at trial. Avila was formerly the assistant fire marshal for Oakland and is currently an Alameda County Deputy Fire Marshal serving the city of Emeryville. Almena’s lawyer Tony Serra objected to qualifying Avila as an expert because he had never previously testified as an expert.

Alameda County Superior Court Judge Trina Thompson certified Cesar Avila to testify as an expert witness at trial on the topics of the implementation of fire and building codes for the purpose of conducting experiments. 

Alameda County prosecutor Bates questioned Avila as to whether it was permissible for the warehouse at 1309 31st Avenue to have RVs and trailers that were used as living spaces. Avila answered, “Absolutely not.” 

Avila explained that the governing building code does not allow RVs in warehouses because they are a potential fire hazard. He told the court that the fuel and propane tanks in RVs can cause fires to burn more intensely. He said, “There are a lot of fluids that could augment a fire.” Additionally, Avila noted that RV batteries “are another potential augmentation” for fires.

The trial of Harris and Almena is expected to last at least several months.

Man on a computer

Lawyer Who Created Digital Child Porn Must Pay $300K

An Ohio lawyer who did expert witness work on behalf of accused child pornographers is now liable for $300,000 to the women whose childhood photos he used to create fake child pornography.

The Expert Witness Work

Jack Boland of Broadview Heights, Ohio, who was formerly known as Dean Boland, once served as an expert witness on behalf of accused child pornographers. As part of his preparation for the trial, Boland took images of girls from stock photography books and digitally manipulated those photos into pornography. Specifically, he removed a doughnut from a photo and replaced it with a penis. Boland used the photos as a “before” and “after” demonstration for the jury.

He used these images as part of his testimony that innocent photographs could be manipulated and argued that the defendant may not have knowingly viewed or possessed child pornography. Boland was attempting to show that overbroad laws against child pornography could entrap a defendant who didn’t know if the images were real or fake.

Boland’s Trials

In 2007, guardians of the girls whose images Boland used sued him in federal court. He was sued under the federal law that prohibits the possession of images “created, adapted, or modified” to depict identifiable minors in explicit sexual conduct. Boland argued that he had a constitutional right to do what he did. He argued that the children hadn’t been hurt because the images were only shown in court and never electronically circulated. How the guardians got wind of the trial evidence is unclear.

The court disagreed with Boland. The girls were awarded $150,000 each in October 2011. U.S. District Judge Dan Polster wrote, “The court concludes that a constitutionally effective defense to a child pornography charge does not include the right to victimize additional minors by creating new child pornography in the course of preparing and presenting a defense.”

Boland appealed to the Sixth Circuit. The Sixth Circuit upheld the lower court’s verdict, reasoning that the $300,000 in damages under the federal child pornography law is comparable to the damage that is done by defamation. In both cases, injury to reputation and emotional well-being results.

Judge Jeffrey Sutton wrote, “When he created morphed images, he intended to help criminal defendants, not harm innocent children. . . . Yet his actions did harm children, and Congress has shown that it means business in addressing this problem by creating sizable damages awards for victims of this conduct.”

Boland avoided federal prosecution by admitting to creating and possessing child pornography and apologizing in the Cleveland Bar Journal. The fact that artificially created images do not qualify as child pornography is the more likely reason he was not prosecuted.

Bankruptcy Court Decision

In 2016, Boland filed a Chapter 7 bankruptcy. A bankruptcy judge ruled that the judgments could be discharged in bankruptcy because there was no evidence that he had intended to harm the children whose photos were used.

The bankruptcy appellate panel disagreed, ruling that Boland is still liable for the $300,000. It wrote, “In this case, the evidence from the trial unquestionably established that Boland, of all individuals, fully understood that his intentional creation, possession and use of the morphed pornographic images of the children invaded the children’s interests in their privacy and reputation.”

“As a lawyer and expert witness in the field of criminal defense in child pornography cases, Boland was aware that the use of identifiable real children in pornographic images was proscribed. . . . It similarly follows that based on his expertise, Boland was aware of the harms inherent in violating child pornography laws.”

Michigan

Michigan Court of Appeals Rules Experts Not Absolutely Immune

A Michigan Court of Appeals panel has ruled that licensed professionals who serve as expert witnesses owe the same duty to their party as they would to any client and that witness immunity is not a defense against professional malpractice.

Foreclosure Case

Diana and Spiro Voutsaras defaulted on a commercial mortgage that was held by Gallagher Investments. They hired Murphy & Spagnuolo PC to represent them in foreclosure proceedings. The law firm advised the Voutrsarases to file a counterclaim against Gallagher and a third-party claim against some of Gallagher’s principal actors for malpractice.

The firm hired Kenneth Mogill as a legal ethics expert and Slucter and Gannon Group as experts in real estate brokerage. The law firm then informed the Voutsarases that their litigation strategy was bound to fail. The district court granted summary judgment against the Voutsarases.

Malpractice Case

Following Diana Voutsaras’ death in January 2015, her estate filed a suit against Murphy & Spagnuolo and the retained experts. The estate claimed that the law firm had failed to advise it of a favorable settlement offer and that it had deliberately concealed the fact that the estate’s claims were frivolous in order to increase pretrial costs. The estate also claimed that the expert witnesses had breached their duties to the estate by failing to properly investigate the facts required to formulate their opinions, failing to understand the applicable standards, and failing to provide a competent professional opinion.

The law firm settled with the estate and the expert witnesses filed a motion for summary judgment arguing that they were protected by witness immunity. The district court granted summary judgment to the expert witnesses, using a broad interpretation of the witness immunity standards. The estate appealed.

Court of Appeals

On appeal, the estate argued that the expert witnesses owed to it a legal duty and that they breached that duty. The expert witnesses claimed that the trial court was correct in its determination that all witnesses enjoy total immunity for any relevant testimony provided during judicial proceedings. The trial court and the expert witnesses relied on the 1999 Michigan Supreme Court case, Maiden v. Rozwood.

The Michigan Court of Appeals panel ruled that Maiden was only partially applicable to this case. The court agreed that the witness immunity doctrine protects any witness based on the substance of their testimony or evidence. However, the panel ruled that witness immunity did not necessarily protect a witness from giving professionally incompetent testimony.

It wrote,

To the extent plaintiff’s claims rest on the Mogill defendants having provided damaging testimony or evidence intended for consideration by the trial court, the Mogill defendants are clearly protected by the doctrine of witness immunity. However, we find nothing in Maiden, or any other Michigan case law, suggesting that any other claim of professional malpractice by a client is precluded merely because the professional was expected to provide expert testimony.

The panel concluded, “We hold only that the Mogill defendants are not absolutely immunized from professional malpractice claims where they already owed a duty of professional care, merely because part of their retention included the provision of expert testimony.”

Book Questions Science of Criminal Investigation

A new book questions the science behind criminal investigations by examining a 27-year-old arson and murder case.

Jo Ann Parks’ Conviction

On April 9, 1989, the garage apartment of Jo Ann Parks went up in flames. Parks escaped, but her three young children were still inside. She ran next door to her neighbor’s house to call the police. Investigators initially believed that the fire was accidental, but eventually concluded that it was arson. Parks was accused of arson and the triple murder of her children.

At Parks’ trial, fire investigators testified that the fire was caused by human origin. One investigator testified that he believed that there had been two fires, one that was started in the living room and one that started in the children’s bedroom. Two points of origin meant that the fire was caused by arson because an accidental fire would only have one point of origin. Investigators also testified that they believed that one of the children had been trapped in a closet that had a door that was blocked by a laundry hamper.

Parks was convicted of first-degree murder and sentenced to life without the possibility of parole.

Humes’ Book

On January 8, 2019, Edward Humes published Burned: A Story of Murder and a Crime That Wasn’t.  In his book, Humes recounts the story of the fire and its repercussions. Humes explains how on the night of the fire, Parks asked a police officer repeatedly if her children were okay and then complied with the request that she wait at a police station a few blocks away. Some of the jurors said that Parks’ acquiescence with that request without demanding to see her children was the deciding factor in their vote to convict her of arson.

Humes examined the way that evidence was collected in Parks’ case. Humes explained that the arson experts who testified at Parks’ trail relied on their mapping of the fire’s path. Humes explained that the arson experts did not fully understand flashover, which happens when a fire gets so hot that “every flammable surface in the room not already burning will ignite in rapid succession.”

To illustrate flashover, Humes explained an experiment that was conducted at the Federal Law Enforcement Training Center in Glynco, Georgia the same year that Parks’ trial took place. The experimenters set two rooms on fire and asked veteran arson investigators to examine each room and choose the quadrant of the room where the fire had started. While the participants thought that this would be an easy task, they chose the wrong quadrant more than 90 percent of the time. Humes explained that this and other similar experiments showed that flashovers made determining the cause of domestic fires very difficult. Despite the fact that flashover had occurred in Parks’ apartment, arson investigators testified that the burn patterns implicated Parks in the arson.

Humes notes that arson investigation is just one of many of the forensic techniques that have been recently discredited. He points to bite marks, hair and fiber comparisons, matching fingerprints, and lineups as examples of forensic investigation techniques that have been routinely discredited by later comparisons of DNA samples.

DC Police Supervisor Fired After Providing Expert Testimony in Case

A Washington, D.C. police supervisor was fired after providing expert testimony in an ACLU lawsuit.

The Searches

On September 27, 2017, Officer Sean Lojacono conducted a search of a man in Southeast Washington, D.C.. The search was captured on a cell phone video that went viral online after it was posted on YouTube. The video showed Lojacono aggressively and intrusively searching M.B. Cottingham. The search led to an ACLU lawsuit that accused Lojacono of “repeatedly jamming one or more fingers into (his) anal cavity and grabbing his genitalia … without a warrant, probable cause, reasonable suspicion, or consent.”  The ACLU lawsuit was settled out of court.

A few hours after the search of Cottingham, Officer Lojacono conducted a similar search, which was recorded by two police body cameras. In the footage, Lojacono is seen searching a man in the same way that he searched Cottingham. The man in the video reportedly says “you’re sticking your fingers in my ass” and that Lojacono is “violating him as a man.”  The DC Police department fired Officer Lojacono because of the way that this search was conducted.

Lojacono appealed his firing. He claimed that he knew that the searches violated his training and the general orders of the DC Metropolitan Police Department, but said that veteran officers instructed him to conduct searches in this manner. Lojacono testified that they way he conducted the body searches on September 27, 2017 was a common practice and that he had conducted hundreds of similar searches during his 5-year career.

The Expert Testimony

J.J. Brennan is a Washington, D.C. police supervisor who reviewed the video footage and provided expert witness testimony at Officer Lojacono’s hearing. Brennan testified that Lojacono’s search met the general order guidelines of the police department.

Lojacono’s attorney Marc Wilhite said, “J.J. Brennan wanted to make it very very clear to the panel that this is what is allowed under the general orders. This is what is actually taught and instructed for officers because you have safety as well not only because you could have contraband there but you could also have weapons.”

Brennan’s testimony was contradicted by three other police officers, including his commander.

The Firing

The day after Brennan’s testimony, he was given a letter of termination. The letter of termination stated that his commander had lost confidence in Brennan’s ability to manage members of the major narcotics unit following his trial testimony. The letter quoted from Brennan’s trial testimony, where he stated that you follow the rules and general orders of the police department “when you can” and “I always told people that worked for me, don’t be afraid to go up in the crotch.”

Prior to his firing, Brennan had spent 43 years on the force as a sergeant.  Brennan was currently serving as a civilian supervisor at the time of his firing.

Brennan spoke with FOX 5 news after his firing, saying that he was “very bitter and angry” over the firing. The people he searched might also be bitter and angry about the violations of their constitutional rights.