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.

Police

The Psychology of Deadly Force Debate

As the use of psychology in the defense of police officer shootings becomes more common, a debate has arisen over whether it is appropriate to allow expert testimony on the connection between stress and deadly force.

Defense of Jason Van Dyke

Jason Van Dyke was a white police officer who shot Laquan McDonald, a black teenager from Chicago’s West Side in 2014.  Van Dyke shot McDonald 16 times within seconds of exiting his police vehicle. McDonald was holding a knife that he had reportedly used to damage the police vehicle.  However, McDonald was already walking away from the police when he was shot.  The entire shooting was filmed by another police vehicle’s dashboard camera.  Van Dyke was charged with first-degree murder and numerous other charges in connection with the shooting.

At Van Dyke’s trial, Florida police psychologist Laurence Miller took the stand in his defense.  Miller holds a Ph.D. from CUNY’s department of psychology, where he specialized in neurocognition.  He has his own private practice in Florida and has been consulting with police departments for almost 20 years.

Miller asked the jurors to focus on Van Dyke’s perception of the shooting.  He explained that life-and-death situations can cause the body’s stress response to distort cognition, perception, and memory. Miller opined that this stress response can lead to a “deadly force mindset” in police officers, where the officer will feel that his or her only option is to kill or be killed.

The jury ultimately found Van Dyke guilty of 16 counts of aggravated battery and second-degree murder, which is a lesser charge than first-degree murder.  This lesser verdict may suggest that the jury believed Miller’s contention that Van Dyke perceived himself to be in danger.

The Argument Against Allowing Deadly Force Psychology

However, the psychology of deadly force is not an exact science.  Some psychologists question the connection that stress has to deadly force.  While police officers do experience cognitive and perceptual impairments such as tunnel vision or dissociation during deadly encounters, researchers do not know much about how stress affects an officer’s decision to use deadly force.

Psychologist Phillip Atiba Goff, a professor at the City University of New York’s John Jay College of Criminal Justice and cofounder and president of the Center for Policing Equity, a think tank that studies racial disparities in criminal justice policy, commented: “The defense used what seems to be an exculpatory argument, though not actual data, to say, ‘You shouldn’t be responsible because this is the level of stress on the job’… This is a bad area for science to be in.”

Kimberley McClure, a professor of psychology and law at Western Illinois University noted that stress responses are highly individualized.  McClure said that Miller should have to clearly establish the factors that may have activated the HPA-axis during the seconds before Van Dyke got out of his car.  There is not much peer-reviewed research that connects perceptive distortions to the decision to fire a lethal weapon.  McClure noted that expert witnesses have the responsibility to help judges, attorneys, and juries understand the knowledge that is out there, but cautioned that experts should also have “an appreciation for gaps in the information we have.”

UFC, fighting ring

Judge Orders Expert Witness Questioning in UFC Lawsuit

A Las Vegas federal court judge has postponed a hearing on two dispositive motions and instead ordered the questioning of seven expert witnesses in the antitrust suit that former fighters filed against the UFC.

The Lawsuit

In December 2014, former fighters brought an antitrust lawsuit against the UFC, alleging that the company used an “anticompetitive scheme” of long-term exclusive fighter contracts, coercing fighters to re-sign, and acquiring and shutting down rival MMA promoters to establish itself as the dominant presence in the MMA industry and suppress fighter compensation.  The fighters claim that UFC formerly paid its fighters a higher share, but doesn’t have to anymore because it eliminated the competition.

The lawsuit noted that athletes in U.S. major team sports typically receive 50 percent or more of the revenue.  The percentage of revenue that the UFC paid its fighters between 2010 and 2017 was “much lower” than athletes’ shares in major league sports and the percentages that were paid to fighters in other MMA promotions.  The exact percentage of the revenue that the UFC pays its fighters is redacted from the public court filings, but there has been speculation that the fighters receive less than 33 percent of UFC revenues.

The lawsuit was filed by a group of former UFC fighters including Cung Le, Jon Fitch, and Kyle Kingsbury against UFC’s owner at the time, Zuffa LLC.  In 2016, the UFC was acquired by Hollywood agency Endeavor for $4.2 billion.

Pre-trial Motions

The former fighters filed a motion to certify plaintiffs as a class.  The UFC filed motions to keep out three of the plaintiffs’ experts whose opinions they claimed were “junk science.”  The UFC also filed a motion for summary judgment, claiming that no reasonable jury could return a verdict for the former fighters.  The motion for summary judgment contained 112 exhibits that included deposition transcripts, emails, presentations, and charts.

Judge Richard Boulware ordered a hearing on December 14, 2018 to determine whether to certify the class or dismiss the case.

The Hearing

At the hearing, Judge Boulware noted that they were not going to get to the class certification and summary judgment arguments.  Instead, Judge Boulware addressed the joint motion to seal the records in the case and highlighted recent Supreme Court cases that affected the class-certification decision.

Motion to Seal Records

Both parties wanted to protect the fighters’ personal information and the confidential financial information of the UFC and third-party promoters.  Judge Boulware noted that he was leaning toward protecting fighter information, but allowing certain UFC financial information to become public.  Judge Boulware then set multiple evidentiary hearings on the issue of class certification to take place in early 2019.

Class Certification Issue

Judge Boulware noted the the recent Supreme Court opinions in Comcast Corp. v. Behrend and Tyson Foods v. Bouaphakeo had “changed the landscape” and said that he needed to question the experts further about the appropriateness of their methods of calculation.

The plaintiffs’ expert Dr. Hal Singer used a wage share method of calculation, which results in damages of $1.6 billion.  UFC expert Dr. Robert Topel instead used an actual wage level method, which results in zero damages.

Judge Boulware requested three days of evidentiary hearings with Dr. Singer and Dr. Topel and additional hearing with additional experts from both sides: Dr. Paul Oyer, Dr. Alan Manning, Dr. Roger Blair, Dr. Andrew Zimbalist, and former UFC matchmaker Joe Silva.  Judge Boulware also requested both sides to submit briefs on the appropriate class certification standard to use in light of the two recent Supreme Court cases.

Detention Center

ICE Claims Ex-Official Not Authorized To Testify as Expert

The United States Immigration and Customs Enforcement Agency has publicly rebuked a former official for giving testimony as a paid expert witness for GEO Group.

The Testimony

Former Immigration and Customs Enforcement (ICE) employee Tracey Valerio was retained by GEO Group to give testimony in Ugochukwu Goodluck et. al v. The Geo Group. Valerio was retained to defend the Geo Group, a large private prison and immigrant detention company that is also ICE’s biggest contractor.

The lawsuit charged GEO with violating minimum wage laws by paying immigrants who are locked up in prison as little as $1 a day to do work such as cleaning toilets or working in the kitchen. Critics of the program, which was authorized by a 1950 immigration law, say that paying immigrant detainees below minimum wage is unlawful because they have not been convicted of or pleaded guilty to any crime; therefore, there is no reason to exclude them from minimum wage law.

Valerio provided a sworn written statement indicating that she was responsible for “the development and implementation of ICE’s budget and all agency contracting was under my purview and supervisory responsibility.” Valerio stated that “ICE could not expend more than $1.00 a day for detainee wages in a ‘detention center’ without Congress setting a higher rate and appropriating the funds needed to pay the higher rate.”

Alleged Violation of the Touhy Regulations

ICE attorney Anne M. Rose wrote in a letter to the court, “As Ms. Valerio was not authorized to speak on behalf of the agency or provide the information contained in the declaration submitted, ICE objects to the submission of the declaration to the extent that it purports to be provided on behalf of the agency or express agency views.” In her letter, Rose explained that Valerio’s testimony was a violation of the Touhy regulations.

According to 6 C.F.R. §§ 5.41-5.49, or the Touhy regulations, the service of subpoenas, court orders, and other demands or requests for official information must be served on the DHS Office of the General Counsel (OGC). The Touhy regulations are an “absolute condition precedent to obtaining testimony or other information from a Department of Homeland Security (DHS) employee of which ICE is a component, and the regulations must be complied with before the DHS or ICE may respond to any such request.” Why the regulation would apply is unclear, given that Valerio was a former employee, not an employee, and was expressing her own understanding of ICE’s policies, not ICE’s official views.

Ethical Concerns

Valerio appears to be one of many top officials at ICE and the Federal Bureau of Prisons who quit their positions and then went on to take a lucrative position at GEO or another private prison company. There are laws that exist that are intended to mitigate the ethical concerns that are created when these types of job moves are made.

The Procurement Integrity Act specifically prohibits former federal officials from accepting compensation for at least one year from companies to which their agencies awarded a contract worth $10 million or more.

GEO won several contracts worth over $10 million during Valerio’s last year as ICE’s executive associate director for management and administration. GEO won more than $327 million in funding during the 2018 fiscal year.

A countervailing ethical concern, however, is the agency’s attempt to silence a former employee who has relevant expert information about the agency’s practices. The Procurement Integrity Act was intended to close the revolving door that allowed government employees to use their government connections to benefit private businesses. The concerns addressed by the Act do not necessarily implicate an independent expert who is retained by a business to provide testimony.

Prosecutor Proposes to Allow Expert Testimony to Address Misconceptions About Sexual Assault Victims

An Iowa prosecutor has proposed new legislation that would allow expert testimony in sexual assault cases to address some common misconceptions about victims and help jurors better understand how victims respond to trauma.

First Assistant Linn County Attorney Nick Maybanks proposed the legislation after the widely-publicized United States Supreme Court confirmation hearings of Brett Kavanaugh.  Maybanks said that the dialogue following Christine Blasey Ford’s testimony before the Senate Judiciary Committee after she accused Kavanaugh of sexual assault was concerning. Many misconceptions about how victims should act following an assault were raised and he realized that a change in the law was needed.

Maybanks said, “There is so much victim bias — about how they are supposed to act or behave and blaming the victim for not reporting it.”

Maybanks has been a prosecutor for sexual assault cases for 20 years. He says that he has an understanding of the basic behaviors of victims and abusers through his work with victim advocates, forensic interviewers, medical experts and law enforcement.

Proposed Legislation

The statute that Maybanks is proposing would clarify what is allowed into testimony. The exact language of the statute is still being revised.

Maybanks hopes that the new statute will give judges clarity on the type of the testimony that should be allowed into court. Currently, some judges in Iowa do not allow experts testify about common misconceptions about victims in sexual assault trials because they see the testimony as “vouching” for the credibility of the victim.

There is, in fact, a fine line between testimony about how a sexual assault victim might behave and testimony that implies a witness is telling the truth because she behaved in a particular way. Writing legislation that balances the need for expert testimony to educate jurors against the protection of a defendant’s right to a fair trial will be a difficult challenge.

Addressing Sexual Abuse Myths

Maybanks highlighted some of the myths about sexual assault victims that stood out to him from the Kavanaugh hearings. In particular, he noted the myth that sexual abuse is immediately disclosed in full to law enforcement after it occurs. He also discussed his perception that a suspect’s denial should not turn a sexual assault case into a “he-said, she-said” battle with no resolution.

Maybanks explained that in the majority of the adult sexual abuse and assault cases that he deals with, disclosure is almost always delayed. When the victim finally tells someone, it is usually a close friend or family member or therapist and not law enforcement. It is also common for victims to reveal more details about the abuse over time.

Maybanks hopes that allowing expert witnesses to testify in these cases on this issue would help to explain about how many victims will not report an incident out of embarrassment, shame, humiliation, fear, or because they do not think they will be believed. He also said that a victim’s statement is often more heavily scrutinized than a suspect’s statement because a suspect is expected to deny the accusation. The latter concern, however, does not lend itself to legislation, as juries have a duty to scrutinize every criminal criminal accusation to determine whether it constitutes or is supported by proof beyond a reasonable doubt.

Maybanks explained that his office only prosecutes a portion of the total sexual assault cases that are referred because of issues with credibility, proof, lack of corroboration, or victims who are unwilling to testify. Maybanks stressed, “But it doesn’t mean the sexual assault didn’t happen…. It’s just that we don’t have enough evidence to prosecute.”

MTA Bus

$14.5 Million Award After Expert Admits License Suspended for Fraud

A six-person jury has awarded a Bronx man $14.5 million in a verdict against New York’s Metropolitan Transit Authority after the MTA’s expert witness admitted that his medical license had been recently been suspended over fraudulent exam reports.

The Accident

In 2013, an MTA bus crossed two lanes of traffic and hit a Honda Odyssey minivan driven by Miguel de los Santos. De los Santos was driving his wife to her birthday party on Pelham Parkway near the Bronx Zoo in New York when the crash occurred.

The accident left de los Santos with serious back injuries that required spinal reconstructive surgery.  His attorney, Eric Subin, said that the 66-year-old retired building superintendent now “shuffles around with a cane.”

His spouse, a NYPD police officer, was a passenger in the vehicle. She escaped with minor injuries.

The Lawsuit

De los Santos sued the MTA in Bronx Supreme Court. The MTA retained Dr. Roger Antoine, a surgeon at Wyckoff Hospital in Brooklyn as its medical expert. Dr. Antoine testified on November 15 that a February 2015 exam showed that de los Santos had normal muscle strength and range of motion in his back.

At trial, de los Santos’ attorney Eric Subin cross-examined Dr. Antoine on the stand and got the doctor to admit that he had “no memory” of examining de los Santos.

Subin asked Dr. Antoine, “Do you remember performing that exam?” Dr. Antoine replied, “I do not remember.” Subin asked again, “No memory of it at all?” Dr. Antoine replied, “No.”

Dr. Antoine also acknowledged that he was temporarily barred from treating injured workers and performing independent medical exams. The Workman’s Compensation Board conducted a two-year investigation of Dr. Antoine’s activities and determined that he had signed off on phony reports, including a report where the doctor incorrectly stated that a victim was faking his injuries.

According to Subin, the medical report was fabricated by a “chaperone” paid for by the MTA who sat in on the exam, took notes on the exam, then used the doctor’s electronic signature on the document. Dr. Antoine admitted that he is supposed to review and sign all exam reports.

Dr. Antoine resigned his authorizations to treat injured workers and perform independent medical examinations in the New York State workers’ compensation system on March 16, 2018. Due to this resignation, Dr. Antoine is prohibited from rendering treatment and care to injured workers. Reports submitted by Dr. Antoine for services rendered prior to March 16, 2018 are authorized. Any report submitted by Dr. Antoine for services rendered after March 16, 2018 are not authorized.

The Verdict

Following a month-long trial, a four-woman, two-man jury returned a $14.5 million verdict for de los Santos.

De los Santos was pleased with the award.  He said, “I’m happy. . . . The MTA lied a lot. All the way from the [bus] driver to the doctor. But the jurors made their decision and they felt for me.”


Photo Credit: An M15 SBS bus passes Madison and James Streets, bound for South Ferry, Fan Railer (talk). Own work (Original text: I (Fan Railer (talk)) created this work entirely by myself). Fan Railer [Public domain], from Wikimedia Commons

Justice Scales

Prominent Child Abuse Expert Dies at 100

Prominent California child abuse expert and pediatrician, Dr. Jess Diamond, has died at 100 years old.

Early Career

Dr. Jess Diamond was born in the Bronx, New York on September 18, 1918 to a restaurateur and apartment manager. Diamond grew up in New York and became interested in medicine because of his uncle, who worked as a doctor with a family practice. Diamond became an Army captain assigned to the Medical Corps during World War II. Dr. Diamond worked as a pediatrician at hospitals in New York and Illinois. In 1980, he moved to Bakersfield, California where he became the chair of Kern Medical Center’s Department of Pediatrics.

Prominent Child Abuse Expert

Dr. Diamond became well-known in the community as a child abuse expert and served as a witness for the Kern County District Attorney’s Office on hundreds of cases. His colleagues knew him for his tireless work ethic.

Kern County District Attorney Lisa Green used Dr. Diamond as an expert witness in many child sexual abuse cases in the 1980s and 1990s. She said, “In Kern County, there really weren’t any other people who had the qualifications he had… He was a great man, and a great witness, and he really had a passion for kids.” Green also complimented Dr. Diamond on his accessibility. She said, “Doctors can be a little difficult to get in touch with… Dr. Diamond just made himself so accessible.”

False Evidence Testimony

Dr. Diamond also showed that he was willing to reevaluate past decisions that he made. Dr. Diamond testified for the prosecution in the trial of Vicente Figueroa Benavides, who was sentenced to death in 1991 for allegedly sexually assaulting and killing 21-month-old Consuelo Verdugo.

After receiving the girl’s medical records, Dr. Diamond changed his mind and recanted his testimony. In 2012, Diamond wrote in a habeas corpus petition, “I do not believe Mr. Benavides received a fair trial and I provide this declaration in the hope that the current legal proceedings will correct this injustice.”  Dr. Diamond said, “After reviewing the medical records and photographs that I should have been provided in 1993, I am convinced that this case presents a tremendous failing of the criminal justice system.” Due in part to Dr. Diamond’s testimony, the California Supreme Court overturned the charges against Benavides, who was freed after serving 26 years on death row.

Robert Carbone, the district attorney who originally prosecuted the case, said that he didn’t understand why Dr. Diamond changed his mind, but that he respected the doctor’s opinion. “Most of what I learned about prosecuting child molestation or other sexual assault cases came from Dr. Diamond. … He was our source.”

Experts now say that the little girl was likely never assaulted and was probably run over by a car.  Dr. Astrid Heger, one of the top child abuse experts in the country, said that the original autopsy finding, that the child died of sex abuse “… is so unlikely to the point of being absurd.”

Dr. Diamond retired in June 1999, at age 81, but continued to work as a volunteer.  He is survived by his wife Ann, three children, six grandchildren, and two great-grandchildren.

Election Experts Testify in Virginia Voter ID Case

Court Overturns Death Sentence Because Expert Testimony Wrongly Excluded

A federal appeals court has overturned the death sentence of a man who was convicted of raping and beating a woman to death because the testimony of an expert witness had been wrongly excluded.

The Crime

In September 2008, 29-year-old Genevieve Orange returned home from her job at the Futures Industry Association in Washington, D.C. and lay down on her couch to watch a DVD. Mark Lawlor, a leasing agent for Orange’s building, broke in with a key and began beating her.

Lawlor used a frying pan and and hammer to beat Orange. Evidence showed that Orange incurred 30 blows to her skull and 17 more wounds on her arms. Lawlor then raped Orange as she lay dead or dying on the floor.

When Orange failed to show up for work, a police officer found the door to her apartment unlocked. Orange’s body way on the floor with her head covered in blood, naked from the waist down, and with her shirt pulled up to her neck.

The Trial

At Lawlor’s capital murder trial, his attorneys admitted that he killed Orange, but they asked the jury to convict him on the lesser charge of first-degree murder. Lawlor’s attorneys argued that his mind was so muddled by beer and crack cocaine that his actions could not meet the legal standard of capital murder.

At the sentencing phase of his trial, capital public defender Ed Ungvarsky said, “I ask you, I implore you, I beg of you, chose life.”

Genevieve Orange’s mother, Marilyn Orange, did not buy the argument that Lawlor was too drunk or high to appreciate his actions. She said, “He had drugs in him, he had alcohol in him… But a lot of people have drugs and alcohol in them, and they don’t kill anybody.”

Orange also noted that Lawlor never apologized for his actions. “He’s not remorseful,” she said. “It was always: ‘Poor me. I didn’t have a chance at this or that, and poor, poor me.’ ”

During the sentencing hearing, the Fairfax judge who presided over the trial limited the testimony of a defense witness from testifying about the future danger Lawlor posed in prison. Fairfax Circuit Court Judge Jonathan C. Thacher ruled that the expert must testify about Lawlor’s potential threat in all of society, not just in prison

The Appeal

On appeal, the Virginia Supreme Court and a federal district court ruled that Thacher’s ruling were correct. However, the Fourth Circuit Court of Appeals disagreed with the ruling.

The court reversed the ruling, citing a U.S. Supreme Court ruling from 1981 that said the “Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record … that the defendant proffers as a basis for a sentence less than death.”

The court noted that there was “grave doubt” that the limitation of the testimony was harmless and remanded the case to U.S. District Court in Alexandria for proceedings consistent with its opinion.

A spokesperson for the state Attorney General Mark Herring said that Herring will review the Fourth Circuit’s ruling and decide how to proceed.

PTSD

Judge Orders Mental Health Treatment Recommended by Defense Expert Witness

A Pennsylvania judge has taken the advice of an expert witness and ordered a specific regimen of mental health treatment for a defendant who has been sentenced to state prison time.

The Crime

On June 17, 2016, 31-year-old Calvin McDonald from Allegheny County, Pennsylvania got into an argument with his girlfriend at their residence. McDonald duct-taped and tied up his girlfriend with rope, choked her, and threw her into the back of their minivan. McDonald drove around for hours, going as far as Wheeling, West Virginia. The couple’s two children were also in the vehicle.

When McDonald later returned to his residence, his girlfriend was able to communicate with a neighbor through an upstairs window to call the police.

The Trial

During his trial, forensic psychologist Shannon Edwards testified that McDonald suffered from  post-traumatic stress disorder. Edwards also testified that McDonald was in a dissociative state during the incident.

A jury found McDonald guilty but mentally ill on five counts, including aggravated assault, kidnapping, and false imprisonment. The jury acquitted McDonald of sexual assault, endangering the welfare of children and criminal attempt of homicide.

The Sentencing

Judge Alexander P. Bicket of the Allegheny County Court of Common Pleas sentenced Calvin McDonald to 5 to 10 years in state prison. Judge Bicket also ordered the state to provide McDonald with the specific mental health regimen recommended by defense expert witness Shannon Edwards.

Edwards recommended that McDonald receive the psychotropic drugs already prescribed to him, individual and group counseling, and other kinds of therapy. Edwards also requested that Judge Bicket reevaluate McDonald’s mental health after one year. Edwards said that McDonald will regress if he does not continue to follow his current treatment regimen.

Mental Health Courts

Allegheny County is one of the many counties that has mental health courts that deal with nonviolent offenders whose psychiatric problems are the underlying factors in their criminal cases. In Allegheny County, the mental health court is designed to divert individuals with non-violent criminal charges who have a documented diagnosis of a mental illness to community based services; maintain treatment, housing, benefits, supervision and community support services for the individual; maintain effective communication between the criminal justice system and mental health system; and support public safety.

Benefits of mental health courts include giving an offender the opportunity to be released from jail and placed in mental health services/treatment in lieu of incarceration. An offender who is placed on probation by a mental health court is supervised  by a special services probation officer and receives support from an Office of Behavioral Health Mental Health Court probation liaison.

However, mental health court is only available to defendants with a documented diagnosis of a mental disorder, mental disability or dual-diagnosis with a mental disorder and substance abuse who is charged with committing a misdemeanor and/or non-violent felony in Allegheny County and is awaiting trial and/or sentencing.

Judge Bicket’s ruling is an example of how mental health court principles might be applied to prisoners with mental health issues who have committed violent felonies.

Siberian Husky

Prosecutor Requests Admission of Evidence Without Expert

A Lapeer County Prosecutor has requested that he be allowed to admit evidence relating to an animal’s genetics into court without presenting an expert to testify about this evidence at trial.

The Incident

On July 7, a black husky and another dog owned by Geuorgui Shopov were running loose in Attica Township, Michigan. The two dogs killed four roosters, four fully-grown guineafowl, and two rabbits belonging to an Attica resident. The reported damages were $260.

On July 11, the Lapeer County Animal Control Dept. took custody of the black husky. Shopov was charged with violation of the Wolf-Dog Cross Act. In relevant part, the act prohibits owning, possessing, breeding, or offering a wolf or wolf-dog hybrid for sale.

CHAPTER 287. ANIMAL INDUSTRY. WOLF-DOG CROSS ACT.

Sec. 4. (1) A person shall not possess 1 or more wolf-dog crosses unless all of the following apply:

(a) The person owns the wolf-dog crosses or has temporarily been given possession of the wolf-dog crosses by the owner.

(b) The owner was in possession of those individual wolf-dog crosses on the effective date of this act.

(c) The owner applies for a permit for those wolf-dog crosses within 4 months after the effective date of this act, and obtains a permit for those wolf-dog crosses. The permit applies only to those individual wolf-dog crosses. The permit is not transferable to another person except through testate or intestate succession. The permit is valid in any local unit in which the possession of the wolf-dog cross is not prohibited by ordinance.

Violation of the Wolf-Dog Cross Act is a misdemeanor that is punishable by up to 93 days in prison, 500 hours of community service, the loss of the privilege to own any animal, and a $250-1000 fine.

Expert Testimony

The Lapeer County Animal Control sent a genetic sample from the animal to the Veterinary Genetics Laboratory at the University of California-Davis for forensic analysis. The lab determined that the animal is a wolf-dog hybrid. Introduction of this evidence normally requires an expert witness to substantiate it.

Assistant Prosecutor Tom Sparrow filed a motion with the court requesting that the court allow the introduction of this evidence without the need of an expert witness. The cost to secure the testimony of the Veterinary Genetics Laboratory Director, Dr. Christina Lindquist, as an expert witness at trial would be $2,000 per day of testimony, plus $50 per hour of travel, plus the costs of travel, meals, and lodging. However, Sparrow stressed that the Board should consider spending the money on the expert if the court does not allow the introduction of the testimony without an expert. The motion with the court is still pending,

Lapeer County Board of Commissioners would like to achieve the conviction without the use of an expert witness. County Commissioner Ian Kempf stated, “I think it’s clear we don’t want a wolf-dog hybrid in our community, but if we can achieve that with the information in front of us without spending taxpayer money (we should).”

A fair trial depends on the ability to cross-examine witnesses. A lab report cannot be cross-examined. If the county thinks the offense is worth prosecuting, it will probably be required to spend the money to give the defendant a fair trial.

Mental Capacity

Experts Clash Over Defendant’s Mental Capacity

Expert witnesses cannot agree about whether a man who pleaded guilty to murder is mentally fit to face the death penalty.

The Crime

In February 2010, a group of six men held 30-year-old Jennifer Daugherty captive for more than two days. Daugherty was beaten and tortured, bound with Christmas lights, and stabbed to death. Her body was then stuffed into a garbage bin and thrown in a snow-covered parking lot.

Melvin Knight pleaded guilty to first-degree murder for his role in Daugherty’s death. He was sentenced to die by lethal injection, but the sentence was overturned and a new trial was ordered to determine his fate.

Sentencing Testimony

Defense expert Christine Nezu, a clinical psychologist from Philadelphia, testified that Knight was not able to function in society and “profoundly adaptively impaired.” She said, “I believe Melvin has severe deficits and trouble adapting to the real world.” Nezu maintains that Knight did not have the capacity to appreciate his conduct, his emotional and mental ages ranged between 9 and 12, and he was very susceptible to domination by another person.

Knight’s defense team has argued that he was under the influence of his co-defendant Ricky Smyrnes when he participated in the beating, torture, and stabbing of Daugherty.

In preparation for the trial, the prosecutors hired New York mitigation specialist Jennifer Wynn to research Knight’s background in preparation for the trial. Wynn is an associate professor of criminal justice at City University in New York. Wynn was paid $7,117 for her work.

Prosecution expert Bruce Wright testified that Knight knew right from wrong, could function adequately, and is not intellectually impaired. Wright testified that Knight has been working in the prison cafeteria, taking classes to learn skills, and regularly visiting the prison law library. His intelligence scores range between 77 and 97, which indicate that he is not disabled.

Wright testified that Knight was diagnosed with depression, psychosis, substance abuse, attention deficit disorder, and antisocial behavior. He said, “He had the capacity to appreciate his criminal conduct. He chose not to, but he had the capacity.”

District Attorney John Peck described Knight as a mean, vengeful, and vindictive man that deserved to die. He argued that Knight’s actions were to protect his own self-interest and hide the crimes that he had committed against Daugherty, including allegations that he raped her. Peck told the jurors, “The defendant crossed the line. He knew if he didn’t keep this darkness to himself, all his actions were motivated to prevent this rape from being discovered by anyone.”

Jurors also heard testimony from Knight’s mother, Yolanda Rue. Rue testified that her son had been dealing with mental health issues since the age of six. She said that she enrolled Knight in special education classes and special schools to deal with his special needs. Rue testified, “He couldn’t be without supervision because of poor choices he made. He could be talked into anything if he thought it was fun.”

After the sentencing hearing, a jury of six men and six women deliberated several hours before determining that Knight should be sentenced to death for his role in Daugherty’s killing.