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

Psychiatrist To Testify in NXIVM “Cult” Trial

The prosecution in the case against NXIVM leader Keith Raniere has filed notice that it plans to call psychiatrist Dr. Michael Welner as an expert witness at trial to help establish that NXIVM is similar to a cult.

NXIVM

NXIVM is a multi-level marketing company based in Albany, New York, that offers personal development seminars.  NXIVM has been accused by former members of the organization of being a recruiting platform for a cult operating within it that was known as DOS or The Vow where women were branded into sexual slavery.

In early 2018, NXIVM founder Keith Raniere and his associate Allison Mack were arrested and indicted on charges including racketeering conspiracy, forced labor conspiracy, wire fraud conspiracy, sex trafficking conspiracy, sex trafficking, attempted sex trafficking, and conspiracy to commit identity theft.

Dr. Michael Welner’s Background

Dr. Welner is a clinical and forensic psychiatrist and Chairman of the Forensic Panel.  He has acted as a lead forensic psychiatric examiner in many criminal proceedings.  Dr. Welner is also known for innovations in forensic science, forensic psychiatry and justice, and protocols for prospective peer review in forensic medicine consultation.

Dr. Welner is best known for his work on cases including the Etan Patz disappearance and murder, the Elizabeth Smart kidnappers, the Xerox mass murders in Hawaii, and Andrea Yates’ trial for the murder of her five children.

Dr. Welner has also consulted for courts and examined defendants who have been involved in mass shooting and attempted mass shooting cases including Colorado’s James Holmes; NBC gunman William Tager; corrections officer George Banks, who killed 13; Tavares Calloway; and bias-hatred mass shooters Richard Baumhammers, Ronald Taylor, and Ronald Crumpley.

The Filing  

The prosecution’s filing indicates that Dr. Welner will testify about how Raniere and his associates engaged in practices that are similar to other cult-like groups.  These practices include: aggressive recruiting tactics that are intended to lure recruits and foster their dependence, grooming the members’ moral and value systems to comply with the group, undermining the members’ senses of self, leveraging emotional vulnerability and trust to control the member, creating extreme power imbalances, isolating members from friends and family, and controlling the sex lives of members.

The filing states, “Dr. Welner has studied … cult-like organizations, large-group awareness trainings, the ‘human potential movement’, religious sects and chain-marketing organizations (the ‘comparative groups’), including financial and sexual exploitation and the psychological dynamics within the comparative groups. This includes the techniques of how intense attention and recruitment contributes to special relationships within which such exploitation takes place, and then to isolation through which recruits are controlled and exploitation perpetuates. As a clinical psychiatrist, Dr. Welner also has experience treating people who have left organizations like those described above.”

The prosecution also indicated that it is planning to call other expert witnesses to testify about: the psychiatric and physiological effects of social, perceptual, and occupational isolation; the behavior of victims of sex crimes including common misconceptions about victim behavior; and the psychiatric and physiological effects of lack of sleep and severe calorie restriction.

Expert Has Performed Autopsy on Jeffrey Epstein

New York City’s chief medical officer has performed an autopsy on Jeffrey Epstein, but the results were inconclusive.

Jeffrey Epstein’s Apparent Suicide

On Saturday, August 10, the U.S. Federal Bureau of Prisons announced that Jeffrey Epstein was found unresponsive in his cell at the Metropolitan Correctional Center in Manhattan.  The agency called Epstein’s death an apparent suicide.  Epstein, 66, was being held on sex trafficking charges.

Federal prosecutors charged Epstein with sex trafficking girls who were as young as 14 and orchestrating a sex trafficking conspiracy.  This indictment noted Epstein’s connections to numerous prominent figures including President Donald Trump, Bill Clinton, and Prince Andrew of Britain.

In 2008, Epstein avoided federal criminal charges after prosecutors allowed him to plead guilty to state charges of solicitation of prostitution from a minor and serve just 13 months in jail.  While Epstein was in jail, he was allowed to leave for 12 hours a day, six days a week, to go to work at his office.

Just one day prior, thousands of documents from a civil suit had been released, implicating Epstein of sexually abusing underage girls.  Epstein had previously tried to commit suicide and had just been released from suicide watch 11 days earlier.  Epstein was on suicide watch from July 23 to July 29, which required him to have extra security.  There was no immediate explanation as to why Epstein had been taken off of suicide watch.  The F.B.I. said that it was investigating and Attorney General William P. Barr said that he would conduct a special inquiry into what happened.

Barr said, “I was appalled to learn that Jeffrey Epstein was found dead early this morning from an apparent suicide while in federal custody…Mr. Epstein’s death raises serious questions that must be answered.”

According to the jail policy, Epstein was supposed to have been checked on by two guards every 30 minutes.  On the night of his death, that procedure was not followed.  He was also supposed to be housed with a cellmate, but his cellmate had recently been transferred.  This decision was another violation of the jail’s procedures.

Epstein’s defense team declined to comment on the circumstances of his death, but released a statement saying, “We are enormously sorry to learn of today’s news. No one should die in jail.”

The Autopsy

Dr. Barbara Sampson is the chief medical examiner in New York City.  Dr. Sampson released a statement saying that a city medical examiner performed an autopsy on Epstein while a private pathologist observed; however, more information is needed before a cause of death determination is made.

The private pathologist, Dr. Michael Baden, observed the autopsy at the request of Epstein’s representatives.  Dr. Baden was the chief medical examiner in New York City in the late 1970s and has been an expert witness in such high-profile cases as O.J. Simpson’s 1994 murder trial.

While the official results of the autopsy remain inconclusive, official’s state that there was no sign of foul play.

Texas flag and gavel

Expert Witness List Released in Texas Police Murder Trial

The expert witness list has been publicly released in the murder trial of a former Dallas Police Officer who shot and killed a man in his own apartment after mistaking him for an intruder.

The Killing

On September 16, 2018, Amber Guyger, 30, was off-duty but in her police uniform when she shot and killed Botham Jean, 26, as he sat and watched football in his apartment.  Guyger said that she mistook his apartment for hers and thought that he was an intruder.

Guyger was fired from the Dallas Police Department and was charged with murder. If convicted, she faces five years to life in prison.

Guyger’s trial is scheduled to begin on September 23 of this year in a Texas state district court that is presided over by District Judge Tammy Kemp.

Jean’s death received coverage by the international news media.  Guyger’s attorneys now say that she cannot get a fair trial in Dallas because of the inflammatory and prejudicial nature of the media coverage.  Judge Kemp has signed a gag order that prevents defense attorneys and prosecutors from commenting publicly on the case while she is deciding whether to move the trial

Expert Witness List

While the attorneys for each side cannot speak about the case, the state’s expert witness list has become a public record.  This list offers some insight into the type of information that the prosecutors have and the evidence that they plan to present at trial.

The state’s expert witness list contains 25 names.  The expert witnesses include forensic video analysts, cell phone data experts, and crime scene reconstruction experts.

Former Judge David Finn examined the list and said that the presence of a forensic video analyst means that the prosecution likely has video evidence that they would like to play for the jury.  He said, “That would indicate to me that the prosecution has a video or videos that they want to play for the jury…And they want an expert to come in and say, ‘This is the real deal. It hasn’t been altered.’”

The state’s expert witness list names a company called Cellebrite as a potential expert. Cellebrite is a company that is known for unlocking cell phone data.  Finn explained that law enforcement agencies frequently use Cellebrite because they are experts in this area.

The state expert list also includes crime scene reconstruction experts who often testify in officer-involved shootings.

Former judge Finn opined that this trial will likely be a battle of experts.  He said, “In a jury trial like this where there are only two witnesses and one of them is deceased, you’re gonna rely on experts to reconstruct the crime scene.” 

Finn explained that “The state’s gonna have crime scene reconstruction experts that are gonna say one thing”  — the defense team “will have experts to say, ‘Not so fast. There’s another side to this coin.’ So you’re gonna have the jury giving conflicting information as experts.”

Baby powder

JNJ Expert Testifies No Link Between Talc and Ovarian Cancer

A New Jersey federal court judge will determine the fate of almost 12,000 lawsuits that claim that Johnson & Johnson’s talc-containing baby powder causes women to develop ovarian cancer and mesothelioma. 

The Lawsuits

Plaintiffs from all around the United States have filed lawsuits against Johnson & Johnson, alleging that the talc that is contained in the company’s baby powder causes cancer.  The plaintiffs believe that the powder contains carcinogenic asbestos and/or asbestiform fibers, which led them to develop cancer.

Johnson & Johnson denied all claims.  The company argued that the plaintiffs could not show that its baby powder causes cancer.

Some of the lawsuits have been litigated with varying results.  Juries have awarded several verdicts to cancer victims in the tens of millions of dollars, with a $4.7 billion award last year.

More than 12,600 of the remaining lawsuits were combined into a multidistrict litigation that is currently being litigated in New Jersey federal court before U.S. District Court Judge Freda Wolfson.

The Daubert Hearings

Johnson & Johnson made a motion to exclude 11 of the plaintiff’s experts, arguing that their methodologies on general causation were unreliable.

Counsel for Johnson & Johnson wrote, “Plaintiffs’ experts’ general causation opinions are methodologically unsound and should be excluded under Daubert, because they misapply scientific principles, engage in unsupported leaps of logic, and distort epidemiology in a results-oriented manner that transforms an important tool for advancing public health into an unprincipled weapon for litigation. … In a nutshell, this is science for the courtroom, not science for the laboratory.”

Judge Wolfson ordered a Daubert hearing to determine if the experts should be allowed to testify.

In the Daubert hearing, the district court heard testimony from Johnson & Johnson’s expert witness, Dr. Benjamin Neel, who is the director of the Laura and Issaac Perlmutter Cancer Center and a Professor of Medicine at New York University. Dr. Neel is a prolific author, having written more than 234 peer-reviewed articles. His work has been cited more than 45,000 times in scientific research articles.

Dr. Neel’s testimony was centered on cellular biology. Dr. Neel stated that he believed that there was a lack of current evidence to suggest that application of talc powder in the genital region would cause inflammation that would lead to ovarian cancer.

The day before Dr. Neel testified, plaintiff’s expert Dr. Ghassam M. Saed testified that talc application to cells for 72 hours can result in a global change in a specific DNA sequence.  Defense counsel Susan M. Sharko of Drinker Biddle & Reath asked Dr. Neel whether Dr. Saed’s opinion was correct.  Dr. Neel stated, “That is completely inconsonant with everything we know about modern molecular biology.” Dr. Neel testified that Dr. Saed’s opinions had no relevance to ovarian cancer, that he had “flawed methodologies,” and that his conclusions “do not comport with modern pathogenesis.”

Plaintiffs’ attorney John M. Restaino of The Sanders Law Firm cross-examined Dr. Neel. Restaino asked Dr. Neel what causes cancer. Dr. Neel replied that cancer can be caused by inherited predisposition, abnormal errors in genomic replication, and environmental agents. However, Dr. Neel also emphasized that “There is no evidence of epidemiological studies alone that say perineal talc application causes cancer.”

Oat fields

Toxicity Experts Debate the Risk of Glyphosate Found in Children’s Cereal

The Environmental Working Group, a non-profit organization dedicated to protecting human health and the environment, recently published the results of a study that revealed that the herbicide Roundup was detected in all 21 of the oat-based cereals and snack products that it tested.  All but four of these products contained levels of glyphosate that are higher that what EWS scientists consider protective for children’s health with a sufficient margin of safety.

Environmental Working Group Study

EWG’s recent study confirms the tests that they conducted in July and October of last year. The prior tests found that levels of glyphosate were consistently above EWG’s children’s health benchmark of 160 parts per billion (ppb).

Glyphosate is one of the active ingredients in Bayer-Monsanto’s weed killer, Roundup, and similar herbicides. Glyphosate regulates plant growth and speeds up crop ripening in broadleaf plants and grasses. People can be exposed to glyphosate by breathing it in, eating food that was treated with it, or absorbing it through their skin.

Some popular food products that were found to have high levels of glyphosate include:

  • Honey Nut Cheerios Medley Crunch – 833 ppb
  • Cheerios Toasted Whole Grain Oat Cereal – 729 ppb
  • Nature Valley Crunchy granola bars, Maple Brown Sugar – 566 ppb
  • Nature Valley Granola Cups, Almond Butter – 529 ppb
  • Chocolate Peanut Butter Cheerios – 400 ppb
  • Nature Valley Baked Oat Bites – 389 ppb
  • Nature Valley Crunchy granola bars, Oats and Honey – 320 ppb
  • Nature Valley Crunchy granola bars, Peanut Butter – 312 ppb
  • Nature Valley Granola Cups, Peanut Butter Chocolate – 297 ppb
  • Cheerios Oat Crunch Cinnamon – 283 ppb
  • Nature Valley Fruit & Nut Chewy Trail Mix Granola Bars, Dark Chocolate Cherry – 275 ppb
  • Nature Valley Granola Protein Oats n Dark Chocolate – 261 ppb

The Expert Debate

In 2015, an agency within the World Health Organization, the International Agency for Research on Cancer, found that glyphosate is a possible carcinogen. In 2017, the Agency for Toxic Substances and Disease Registry, part of the U.S. Department of Health and Human Services, released a study that confirmed and strengthened the cancer agency’s research.

In California, the chemical is a Group 2A carcinogen, which means that there is sufficient evidence that it causes cancer in animals used in experiments and is probably carcinogenic to humans.  “[Glyphosate] is known to the state of California to cause cancer,” said Sam Delson, the deputy director for external and legislative affairs at the Office of Environmental Health and Hazard.

Not all experts agree that glyphosate is a carcinogen. The Environmental Protection Agency, the agency that creates the legal limits on pesticide residues, has stated that glyphosate does not pose a public health risk. In April, EPA scientists concluded that there is “no risk to human health from current uses of glyphosate” and “no evidence that glyphosate causes cancer.”

Environmental experts complain that the EPA disregarded mounting evidence associating glyphosate with cancer risk. In addition, the scientific journal, Environmental Sciences Europe, found that the conclusions reached by EPA and the International Agency for Research on Cancer differed because the EPA relied mainly on studies conducted in-house by Monsanto or contracted by EPA with an outside lab.

Court room

Experts Overstating Forensic Results A Leading Cause of Wrongful Convictions

The National Registry of Exonerations recently released its report on Exonerations in 2018. Importantly, it found that official misconduct and misleading forensic evidence were the leading causes of wrongful convictions.

2018 Statistics on Wrongful Convictions

There were 151 exonerations that occurred in the United States in 2018. The exonerations were for the following crimes:

  • 66 murders
  • 2 manslaughters
  • 17 sex crimes – 7 of those involved children
  • 16 other violent crimes including arson, robbery, and attempted murder
  • 47 non-violent offenses including drug crimes, fraud, theft, and traffic offenses

These men and women who were exonerated spent more than 1,600 combined years in prison.

Causes of Wrongful Convictions

In these exonerations, offcial misconduct took place in 107 of these cases. Mistaken eyewitness identification occurred in 31 cases. False confessions were given in 19 cases. Perjury or false accusations occurred in 111 cases.

Almost one-third of these wrongful conviction cases involved a police corruption scheme in Chicago where a police officer framed individuals on drug charges.

In a New York Times report, reporter Heather Murphy examined the misleading forensic evidence that led to many wrongful convictions and how experts often exaggerated statistical claims to bolster their unscientific opinions.

Murphy noted that once an expert has been qualified to testify in a courtroom, there are often few limits on what they can and cannot say. According to Simon Cole, the director of the registry and a professor of Criminology, Law and Society at UC-Irvine, “An expert can say whatever they want.” This includes inventing odds like “one in a million” or “1 in 129,600.”

“A lot of the problem with forensic testimony is that the diagnosticity is overstated,” said Barbara O’Brien, a professor at the Michigan State University College of Law and author of the report. A hair sample at the crime scene that resembles a suspect’s hair “gets dressed up with this scientific certainty that isn’t justified,” she said.

Additionally, some forensic techniques that have been used to wrongly convict individuals have later been found to be invalid. In 2013, the FBI reported that testimony asserting that microscopic hair comparison could produce a match between two hairs was scientifically invalid. In 2018, an appeals judge declared that “scientific knowledge underlying the field of bite mark comparisons has evolved in a was that contradicts evidence” that was formerly used to convict a defendant.

Professional Exonerators

Luckily, there are professional organizations that exist for the sole purpose of exonerating those who have been wrongly convicted. Conviction Integrity Units and Innocence Organizations were responsible for 99 of the 151 exonearations that occurred in 2018.

Conviction Integrity Units are divisions of prosecutor’s offices that work to prevent, identify, and correct false convictions. In 2018, there were 44 Conviction Integrity Units in the United States, which is almost three times the number that existed just five years earlier but still a small fraction of the number of prosecutor’s offices that seek convictions in the United States. Conviction Integrity Units were responsible for 58 exonerations in 2018.

Innocence Organizations are non-governmental organizations that are dedicated to the exoneration of wrongly convicted defendants. In 2018, Innocence Organizations represented defendants in 86 exonerations.

Courtroom

Parties to Settle Matter of Expert Sanctions for Refusal to be Videotaped

A prominent New Jersey construction expert witness has reached a settlement that will vacate the court order that would have required him to pay over $22,000 for his refusal to be videotaped during a deposition. 

The Refusal to Be Videotaped

Michael Panish was retained as a critical liability expert by the Ruehl family after Mrs. Ruehl’s family claimed that she had been struck by a sliding door, which caused her to fall and eventually die. The Ruehl family hired Panish as an expert in multiple construction and building disciplines; specifically as an expert in the field of automated sliding glass door technology. Panish had indicated that he had served as an expert witness in over 1,000 past cases.

During discovery, the defendant wanted to take a videotaped deposition of Panish. Panish refused, citing a clause in his expert witness contract. The court ordered Panish to comply with the request.

When the Ruehl family’s attorneys, Bordas & Bordas, told Panish about the order, he said, “I don’t care about you or her [the decedent Plaintiff, Shirley Ruehl] or some asshole judge.” He also scheduled a deposition with the defendants and charged them for attending, but did not show up for it. He claimed to have been stricken with laryngitis. 

The Sanctions

The defendants requested that the court sanction Panish for his conduct. The court awarded $22,270.30 in sanctions. Panish fought back and appealed his case to the U.S. Court of Appeals for the Third Circuit.

Expert Witness’s Defense

Panish said that he told the Bordas firm at least 18 times that he would not agree to be videotaped. Panish’s attorneys said, “Mr. Panish does not permit videotaped depositions of himself, except under very limited circumstances, to protect his professional reputation and image. … Mr. Panish does not permit his picture to be taken for professional purposes and does not even use his picture on his website.”

“It is unconscionable that the Bordas law firm allowed the issue to fester until March 2017 when the firm could have, and should have, secured a substitute liability expert early in the case or seek permission from the Court to extend discovery to do so,” Panish’s lawyers wrote.

Panish’s attorneys argued that he was not subpoenaed by the defendants to testify at deposition and noted that the Bordas law firm withheld defendant’s notice to take Panish’s deposition for three weeks before providing him with the notice. They wrote, “It is reasonable to infer under the circumstances that the Bordas law firm wanted to avoid confronting the reality of the fact that it had known for three years that Mr. Panish would not permit his deposition to be videotaped.”

Panish’s attorneys also noted that “neither Plaintiff nor Defendant moved for an order compelling Mr. Panish to testify at deposition. Even if either party had done so, it is respectfully submitted that this Court could not compel Mr. Panish’s deposition as his engagement with the Bordas law firm set forth the terms and conditions of his retention.”

The parties have since filed a joint motion to settle the matter as long as the court orders of sanctions were vacated. Additional terms were not disclosed.

Gun with ammunition

Multiple Expert Witnesses Testify in Russ Murder Trial

A medical examiner, a toxicologist, and multiple law enforcement officers have testified in the murder trial of Michael Isaac Russ.

The Killing

On December 22, 2017, Larry Wayne Campbell, 27, of Denton, North Carolina, was shot and killed in a parking lot outside of a barbecue restaurant.  According to the Randolph County Sheriff’s Offices, Campbell had been shot by an unknown person and died of his wounds at the scene. The shooter was seen driving away in a black Toyota truck.

Michael Isaac Russ was later apprehended as a suspect in a traffic stop.  Russ had a criminal record dating back to 2007 that includes traffic violations, assault, and carrying a concealed gun. Russ was later charged with Campbell’s murder and held at the Randolph County Jail without bail.

Theory of the Case

According to prosecutor King Dozier, Campbell and his friend were riding on their motorcycles to lunch when they rode past Russ’ home. Russ, who was on his way to a Hell’s Angels meeting, started tailgating the two men. He followed them to the parking lot of BBQ Joe’s, where words were exchanged. According to witnesses, Russ then shot Larry Campbell seven times.

However, Russ’ defense team argued that Russ was actually defending himself when he fatally shot Campbell. In his opening statement, defense attorney Thomas Manning explained that Russ was simply a motorcycle lover who was curious to see and meet the riders. He told the jury, “Mr. Russ fires in self-defense because he’s looking down the barrel of a loaded gun.”

Medical Examiner Testimony

The prosecution called Dr. Kimberly Janssen of the North Carolina Office of the Chief Medical Examiner to testify at trial. The court accepted Dr. Janssen as an expert in forensic pathology.  Dr. Janssen was the medical examiner who performed the autopsy on Campbell’s body after he was fatally shot.

Janssen testified that after she autopsied Campbell’s body, she concluded that he had been healthy prior to his death and the cause of his death was “multiple gunshot wounds and homicide.”

Defense attorney Manning questioned Janssen about the trajectory the bullet took through Campbell’s hand. He said that the trajectory would have been most likely if Campbell had been holding his hand at an angle at which he was holding or aiming a firearm. Janssen did not disagree with Manning about the angle.

Sheriff’s Office Testimony

Captain Steven Nunn of the Randolph County Sheriff’s Office testified that he interviewed Roy Pruitt, Campbell’s close friend and an eyewitness to the shooting. Nunn also downloaded information from Russ’ iPhone and computers. Nunn said that Russ’ iPhone had been wiped clean of all data. However, he was able to extract information from two of Russ’ three computers.

Forensic Toxicologist Testimony

Dr. Ruth Winecker, a retired chief toxicologist for the North Carolina Office of the Chief Medical Examiner, tested the Campbell’s blood in 2017. Winecker, who is an expert in forensic toxicology, performed multiple different toxicology tests on the blood. Winecker explained that the test she runs ″look for drugs and poisons.”  The only substance found in Campbell’s blood was caffeine.

Wooden mallet

Oxygen TV Investigation Finds Evidence of Sexual Assault

An investigation conducted in preparation for an Oxygen TV special revealed that there was evidence of sexual assault in a death that had been previously ruled a suicide.

The Death

On July 13, 2011, authorities found the body of 32-year-old Rebecca Zahau naked and tied with rope at the Spreckels Mansion, where she lived with her boyfriend, multi-millionaire pharmaceutical CEO Jonah Shacknai. Her hands and feet were tied with red polypropylene rope, which was tied to a bed frame in her bedroom.

Her boyfriend’s brother, Adam, claimed to have found Zahau hanging from the second-story balcony. He told authorities that he had cut her down and gave her CPR.

According to the sheriff’s report, Adam Shacknai was the only other person on the property when Zahau died. Authorities concluded that Zahau had committed suicide. They believed that she was upset after her boyfriend’s 6-year-old son fell to his death while in her care.

Civil Wrongful Death Suit

Zahau’s family never accepted that she committed suicide.  In 2013, they hired attorney Keith Greer to look into Zahau’s death further.

Zahau’s family sued Adam Shacknai for her wrongful death. A civil jury found that Shacknai was responsible for Zahau’s death. Shacknai’s insurer settled the case for $600,000. Shacknai maintains that the settlement happened without his knowledge or involvement.

The Civil Investigation

A team that worked on a TV special for the Oxygen Network, Death At The Mansion: Rebecca Zahau, looked over the evidence that Greer collected. This team included old case investigator Paul Holes, former prosecutor Loni Coombs, and crime journalist Billy Jensen.

Holes told the producers of the show that the lack of severe damage to Zahau’s neck was a “red flag.” He said, “For me, the biggest thing in my mind that I really want to dig into further is the amount of damage to her neck. …  If this was this true long-drop execution hanging, I would expect a lot more trauma, if not near-decapitation — broken neck, internal decapitation or full decapitation, after this victim had dropped nine to 10 feet.”

Holes told the show’s team that he believed that Zahau was killed and that her killer lowered her body from the balcony.  He said, “Just know that she did not take full force of a nine-foot fall … nine-foot drop, as hanging goes, is considered a long drop — devastating injury to the neck. But, she has minor damage to cartilage in the neck; no injury to the vertebrae anywhere on her neck.”

Holes also noted that Zahau’s hyoid bone and larynx, or voice box, were fractured. Holes said that a hyoid fracture is often “used as a diagnostic for manual strangulation.” 

Forensic pathologist Dr. Rebecca Hsu agreed. She explained that the hyoid is high up in the neck, protected behind the glandular structure and neck muscles.  “It’s not an easy thing to break with ligature. … It’s much easier to break if you have a manual strangulation, where fingers are going in and up.”  She continued, “I can tell you — I have seen quite a few hangings, and I don’t see fractures.”

Additionally, investigators believe that Zahau had been sexually assaulted. Forensic specialist Lisa DeMeo testified at the civil trial that Zahau’s menstrual blood was found on all four sides of a knife handle that was found at the scene of the crime. Greer argued that the only way that the blood could have gotten on the knife handle was if she was sexually assaulted. DiMeo also opined that the mark of blood on Rebecca’s inner thigh was a transfer stain from a sexual assault with a knife handle.

Law enforcement agencies reviewed the case following the civil trial. At a news conference following the review, Rich Williams of the San Diego sheriff’s department homicide unit announced that no evidence of sexual assault was found in either autopsy.

Bloody knife

Connecticut Supreme Court Vacates Conviction While Expert Defends Work

The Connecticut Supreme Court has vacated the murder convictions of two men who were convicted of murder and have spent decades in prison. The court’s decision was based on its determination that the testimony of an expert witness was incorrect. 

The Crime

On December 2, 1985, Everett Carr, a 65-year-old man from New Milford, Connecticut, was stabbed approximately 27 times and found lying in a pool of blood in his home. Authorities arrested then-teenagers Ralph Birth and Shawn Henning, who had stolen a vehicle nearby, for the murder.  

The Expert Testimony

At trial, renowned Connecticut-based forensic scientist Dr. Henry Lee told the jury that he had performed tests on two towels and that “a smear of blood was” found on one of them from Carr’s upstairs bathroom. 

At the time of the trial, Dr. Lee was the Connecticut State Police’s forensic laboratory director. He is now a high-profile criminologist who has worked on cases all over the world.

Prosecutors at trial argued that Dr. Lee’s testimony about the bloody towel meant that the two teenagers went to the bathroom to clean themselves up after the murder. This testimony about the bloody towel was used to explain why no blood was found on either of the two men or the car that they stole.

In 1989, Shawn Henning and Ralph Birch were convicted in the stabbing death of Everett Carr. Both teens were sentenced to life in prison by two separate juries.

The Connecticut Supreme Court’s Ruling

Decades later, the convicted murderers filed petitions for habeas corpus, arguing the “bloody towel” that Dr. Lee testified about was never tested for blood. When the towel was finally tested, it proved negative for blood.

In a 7-0 ruling, the Connecticut Supreme Court vacated the convictions of Henning and Birch.

The court’s decision was written by Justice Richard Palmer. Palmer wrote, “The state also adduced testimony from Lee … to explain how it was possible that the petitioner [Birch] and Henning could have stabbed the victims so many times without getting any blood on their clothing and without transferring any blood to the Buick. Lee explained that, although the victim fought with his assailants, all of the blood splatter in the hallway was uninterrupted, meaning that no individual or object was between the victim and the walls or floor to interrupt the blood splatter. According to Lee, this could explain why the assailants were not covered in the victim’s blood.”

The Aftermath

Birch, who was sentenced to 55 years in prison, is still imprisoned awaiting the state’s decision on whether to retry him. Henning, who was sentenced to 50 years in prison, has been out of parole since July 2018.

Dr. Lee’s Reaction

Dr. Lee has defended his conclusions. He told the Connecticut Law Tribune, “Somehow, I’ve become the casualty for this legal problem. The towel was tested. It was a light smear of blood. I spent two days on the scene and did numerous tests.”