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.


Georgia Court Says No Conflict in Same Firm Expert Affidavit

The Georgia Court of Appeals has ruled that there is no conflict of interest in using an expert affidavit supporting a complaint written by an attorney who is also a law partner of the filing attorney.

The Personal Injury Case

Plaintiff David Mitchell retained attorney Randall Cade Parian of Parrian Injury Law, LLC to represent him in a personal injury action. Without informing Mitchell, Parian referred the case to Brian Wesley Craig of Craig & Avery, LLC. Attorney Craig filed a personal injury action on Mitchell’s behalf in Fulton County State Court.

Mitchell contacted Parian numerous times in the two years after retaining them. Parian told Mitchell that the case was “chugging along” and never informed him that the case was actually being handled by another law firm.

The defendants in the personal injury case set a deposition for Mitchell and notified Craig, but neither Parian nor Craig notified Mitchell of the deposition. The defendants filed a motion to compel and a motion for sanction, but neither Craig nor Parian contacted Mitchell. As a result of the motions, Mitchell’s case was dismissed with prejudice.

When Mitchell learned of the dismissal, he reviewed the complaint that Craig had filed on his behalf. Mitchell saw that the allegations had little resemblance to the facts of his case, leading him to conclude that Craig had simply used a complaint his firm had filed in a different case and substituted Mitchell as the plaintiff.

The Malpractice Action

Mitchell retained attorney William Ney to represent him in a legal malpractice action against Parian and Craig. Ney filed a complaint that was supported by the affidavit of Jacob Rhein, an attorney who is licensed to practice law in Georgia. In his affidavit, Rhein indicated that he was familiar with the standard of care for Georgia attorneys and that it was his opinion that Parian and Craig had breached that standard of care. The day after Rhein executed his affidavit, he and Ney formed a law firm together, Ney Rhein, LLC.

Parian and Craig filed a motion to dismiss, arguing that because Rhein was a member of Ney’s law firm, he was not competent to provide the affidavit that was required to support a legal malpractice action. Following a hearing, the trial court granted the motion to dismiss. The court ruled that there was “an inherent conflict between Rhein making the affidavit as a witness and being a member of the law firm” that represented Mitchell.

The Appeal

Mitchell appealed the trial court’s ruling. On appeal, the Georgia Court of Appeals, First Division, looked to the language of the statutory requirement. OCGA § 9-11-9.1 provides, in relevant part, that to assert a claim for legal malpractice, the plaintiff is “required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such Claim.”

The Georgia Court of Appeals found that Rhein met the statutory requirements for an expert witness as set forth in OCGA § 24-7-702. The court further found that Rhein’s status as Ney’s law partner affected Rhein’s qualifications as an expert witness. Presiding Judge Anne Elizabeth Barnes authored the opinion with the concurrence of Judges Elizabeth Gobeil and John Pipkin III.

Attorney for the plaintiff William Ney said of the ruling, “It just confirms what the ethics rules are: That members of the same firm can provide pretrial affidavits on behalf of each other’s clients and still comply with [the statute].” Whether a member of the firm could testify at trial, as opposed to filing a pretrial affidavit attesting to the claim’s legal merit, was not a question the court needed to answer.


PAM Spray Defect Case Tossed Out for Lack of Admissible Expert Evidence

The Eastern District of New York has dismissed claims against the makers of PAM cooking spray after the plaintiffs failed to present admissible expert witness testimony.

The Incident

In August 2016, Lucita Arena was in her kitchen preparing dinner when a nearby can of PAM cooking spray exploded and injured her. Lucita and her husband Jose Urena sued ConAgra Goods, Inc. and DS Containers, Inc., the makers of PAM and its container. The couple alleged design defect, failure to warn, and loss of consortium.

The type of PAM canister that exploded has four U-shaped score lines that are designed to open when the pressure inside the can rises to a particular level. The can features warnings including, “USE ONLY AS DIRECTED. FLAMMABLE. DO NOT SPRAY ON HEATED SURFACES OR NEAR OPEN FLAME … CAN MAY BURST IF LEFT ON STOVE OR NEAR HEAT SOURCE.” The canister that injured Lucita Arena was discarded by her attorney’s custodial staff after it was left in a conference room before experts had the opportunity to examine it.

The Design Expert

Plaintiffs retained Dr. Lester Hendrickson, Ph.D., as a design expert to help them prove their theory of causation. Dr. Hendrickson had a Ph.D. in metallurgical engineering and serves as a professor emeritus at Arizona State University. He has authored more than 1,000 technical reports as an expert witness. Dr. Hendrickson planned to testify that “absent the vents in this can, the circumstances under which” the plaintiff “was burned would not have occurred.”

The defendants objected to the design expert and the district court decided to exclude him. The court ruled that Dr. Hendrickson did not satisfy Daubert because he had failed to explain how the alternative design that he proposed would be safer. The court also found that Dr. Hendrickson’s opinion failed to satisfy Daubert’s criteria for reliability because he had criticized the PAM canister’s propellant, but had not proposed a safer proponent, nor tested any. Further, his proposal had never been subjected to peer review or publication. Therefore, the court found that Dr. Hendrickson had failed to show general acceptance of his design or methodology.

The defendants filed a motion for summary judgment. The defendants argued that the plaintiff’s design defect failed because they had not offered admissible evidence that the design of the PAM canister and not a manufacturing defect had caused the plaintiff’s injuries. The plaintiffs had also failed to offer admissible evidence from an expert regarding a defect or a feasible alternative design. The court agreed with the defendants.

The court also ruled that the plaintiffs’ failure to warn claim did not raise any triable questions of fact because they could not show that any inadequacy of the warnings was the proximate cause of the plaintiff’s harm. The court ruled that the plaintiff’s theory that the warnings were inadequate for failure to warn about the canister’s vent design failed because they could not show that the absence of the warning was the cause of the plaintiff’s injuries.



Missouri Appeals Court Throws Out Sanctions Against Expert Witness

The Missouri Court of Appeals Eastern District has thrown out sanctions against a plaintiff’s expert witness, ruling that he did not act unethically in negotiating a settlement with another law firm.

District Court Case

Attorney Gregory Leyh and the law firm Millsap & Singer have been litigating against each other for years. Leyh has represented hundreds of plaintiffs in lawsuits against Millsap, alleging that Millsap engaged in improper conduct in connection with its representation of banks and mortgage holders in foreclosures and collections. Leyh was also appointed class counsel on a pending class action lawsuit for similar improper conduct. Millsap has sought to sanction Leyh, decertify the class in his suit, and filed suit against him personally for malicious prosecution and abuse of process.

In 2010, Debra Woodson filed a suit against Millsap and its client Bank of America for wrongful foreclosure. Woodson’s attorney retained Leyh as an expert witness in the case. The parties entered a protective order which indicated that documents that were marked confidential were not to be disclosed or used in any current or future litigation. However, Leyh was never made aware of that order.

Leyh was given access to a confidential deposition for his role as an expert in the Woodson case. Leyh later disclosed that deposition in discovery to the case in which he was serving as class counsel.

Millsap filed a motion for contempt, arguing that Leyh’s disclosure and use of the deposition was a knowing and intentional violation of the Woodson protective order.

The parties negotiated a settlement agreement but could not come to a final agreement on all settlement terms.

Millsap filed a motion to enforce the settlement.  Following a two-day hearing, the trial court found that the parties had reached a settlement agreement, agreed to modify that agreement, and that Leyh’s refusal to execute the agreement was in bad faith. The court also found that Leyh’s assertion that his attorney had the authority to negotiate, but not settle the dispute was not credible. The court further found that Leyh’s failure to advise Millsap’s counsel about this limited authority was a violation of Rule 4-4.1 of the Missouri Supreme Court’s Rules of Professional Responsibility, which require Leyh to be truthful to opposing counsel. The court imposed a $35,000 sanction against Leyh, based on its determination that he had behaved unethically and in bad faith.

Missouri Court of Appeals

Leyh appealed to the Missouri Court of Appeals. On appeal, the Court of Appeals agreed with the trial court that the parties had reached a settlement agreement; however they disagreed that the parties had agreed to modify that agreement. The court also disagreed with the finding that Leyh had acted in bad faith.

The Court of Appeals also reversed the trial court’s finding that Leyh had violated Rule 4-4.1 of the Missouri Supreme Court’s Rules of Professional Responsibility. It noted that Leyh was not acting as a lawyer in this case, he was acting as an expert witness. Rule 4-4.1 only applies to lawyers when they are representing clients.

The case was decided by Judges James M. Dowd, Gary M. Gaertner, Jr., and Robin Ransom.

dollar bills

Louisiana Bill Seeks to Change Lawyer Advertising Rules

A new bill by the Louisiana Senate would outlaw lawyer ads that it finds to be deceptive — ads that state how much a client received as a settlement or judgment, without deducting for things like attorney fees, expert witness fees, or court filing costs.

Louisiana Senate Bill 395

The bill enacts R.S. 51:1429, which provides in pertinent part, that, “No person in any advertisement shall make, or permit to be made, a false, misleading, or deceptive statement about a monetary result obtained on behalf of a client or fail to disclose information necessary to prevent the information supplied in an advertisement from being false, misleading, or deceptive.”

The law defines “false, misleading, or deceptive statement” as “any communication that states or infers that a person actually received an amount of money that they did not actually receive.” The law defines “actually received” as “the net amount of money received by a person, calculated by deducting from the person’s gross recovery all expenses including but not limited to attorney fees, broker fees, expert witness fees, interest, court costs, costs of collection or recovery, and all other expenses related to litigation.”

This means that Louisiana lawyers who run billboards, print and digital ads, or television and radio spots will need to say how much of a total settlement went to attorneys’ fees, court costs, and expert witness fees.

Any violation of this law would be prosecuted under the state’s Unfair Trade Practices and Consumer Protection Law by the Louisiana Attorney General’s Office.

The Louisiana Senate gave final approval to the bill on June 1 with a 37-0 vote. The state House of Representatives voted 78-23 on the bill on May 29.

The bill’s sponsor was Senator Heather Cloud (R), who argued that lawyer advertisements that make false promises of substantial payouts encourage people to sue businesses without understanding that they may only receive a small fraction of the settlement or final verdict amount.

Co-sponsors of this bill included: Sen. Michael Fesi, Sen. Sharon Hewitt, Sen. Ronnie Johns, Sen. Barry Milligan, Sen. Robert Mills, Sen. Beth Mizell, Sen. Mike Reese, Sen. Mack White, Rep. Beryl Amedee, Rep. Tony Bacala, Rep. Rhonda Butler, Rep. Dewith Carrier, Rep. Raymond Crews, Rep. Phillip DeVillier, Rep. Rick Edmonds, Rep. Julie Emerson, Rep. Gabe Firment, Rep. Larry Frieman, Rep. Raymond Garofalo, Rep. Jonathan Goudeau, Rep. Lance Harris, Rep. Dodie Horton, Rep. Mike Johnson, Rep. Danny McCormick, Rep. Charles Owen, Rep. Thomas Pressly, Rep. Troy Romero, Rep. Rodney Schamerhorn, Rep. Alan Seabaugh, Rep. John Stefanski, and Rep. Polly Thomas.

All sponsoring senators and representatives are Republicans.

Ramifications of Law

According to the legislative analysis, the Louisiana Attorney General’s office expects about six investigations each year would result from the new law. Complaints about deceptive advertising would be required to start an investigation and would be handled by existing staff within its Public Protection Division. The Public Protection Division is staffed by a total of 34 employees, including 13 attorneys. The Louisiana AG’s office received 2,910 consumer complaints in 2017; 3,120 consumer complaints in 2016; and 2,696 consumer complaints in 2015.

The state should also expect litigation based on First Amendment challenges to the law. The Supreme Court has upheld attorney advertising from efforts to prevent lawyers from making truthful statements about their services. Saying that a jury awarded a specific amount is truthful, and it does not imply that the lawyer earned no fee or that the client received the full amount awarded. Forcing lawyers to add information to their advertising that they view as unnecessary may result in constitutional challenges.

The bill is now headed to Governor John Bel Edwards (D). The new rules would take effect August 1, 2020.


Newborn Baby

Mississippi Supreme Court to Review Shaken Baby Case

The Mississippi Supreme court has agreed to review the case of a man whose murder conviction was overturned last year. The court will decide whether to reinstate the conviction, order a new trial, or drop the charges entirely.

The Crime

In January 2008, Joshua Clark was left in charge of his infant daughter Kylie and three other children. When Kylie’s mother returned home, she found Kylie limp in the recliner and Clark playing video games.

Kylie was taken to the hospital, where doctors found numerous injuries to her brain. Clark was charged with capital murder in connection with the death of his daughter.

Circuit Court Trial

At trial, the state argued that Clark had gotten angry with his daughter and violently shook her. Clark’s defense argued that he was not known to be violent and that Kylie’s injuries were more consistent with a short fall to the ground from the couch or chair.

The state retained Dr. Karen Lakin to testify as an expert witness. Dr. Lakin testified that “in her opinion, the child had been violently shaken, causing a fatal brain injury.”

Clark was convicted of second degree murder and sentenced to 40 years in prison.

Court of Appeals

Clark appealed his conviction. One of his defense team’s arguments was that the circuit court erred by admitting Dr. Lakin’s testimony.

In October 2019, the Mississippi Court of Appeals reversed Clark’s conviction. In a split decision, the appellate court ruled that Dr. Lakin had not provided supporting materials for her findings. The court remanded Clark’s case back to the circuit court for a new trial.

Mississippi Supreme Court

Clark appealed his case to the Mississippi Supreme court. Clark’s attorney, Jim Waide, argues that Shaken Baby Syndrome has been disproven by new medical science. Without the shaken baby syndrome argument, Waide claims, the state has no case. Waide argues that Clark should be released from prison to await a new trial or that all charges against him should be dropped.

In his petition, Waide wrote, “The only issue worthy of review by (the supreme court) is whether the state should be allowed to have a second trial to produce scientific evidence which it failed to produce at the first trial.”

The state also appealed the Court of Appeals’ decision. The state has argued that the Court of Appeals was wrong to throw out the expert witness testimony about Shaken Baby Syndrome. It has asked the Supreme Court to reinstate Clark’s conviction.

Arguing for the state, Mississippi Special Assistant Attorney General Scott Stuart claims that if the Court of Appeals’ ruling is allowed to stand, it will cause new problems and “set new higher standards for expert testimony.” One might hope that high standards would be demanded for opinions that are based on the discredited notion of Shaken Baby Syndrome.

The Mississippi Supreme Court has not yet announced the time frame for its review.

Clark is likely to remain in state prison until the Mississippi Supreme Court makes its final ruling. Waide had argued that Clark should be released pending the Mississippi Supreme Court’s decision. Circuit Court Judge Kelly Mims disagreed with Waide. Judge Mims stated that since the case is still being appealed, Clark is still technically a convicted murderer and should remain in prison.

Clark has been in jail or prison for 12 years at this point.


Expert CV Checklist

Tara Reade’s Expert Witness Credentials Questioned

Tara Reade, the former Senate staffer who has accused Democratic presidential candidate Joe Biden of sexual harassment and assault, is under scrutiny for misrepresenting her qualifications under oath when appearing as an expert witness in domestic violence cases.

Joe Biden Accusation

Tara Reade, 56, has accused 2020 presidential candidate Joe Biden of sexually harassing and assaulting her while she worked in his office in 1993. Since first coming forward with her allegations, Reade’s recounting of the 1993 events has changed and numerous news publications have begun to investigate her allegations.

PBS NewsHour interviewed 74 former Biden staffers to get a “broader picture of his behavior toward women over the course of his career, how they see the new allegation, and whether there was evidence of a larger pattern.” None of the 74 people said that they had experienced sexual harassment, assault, or misconduct by Biden. All of those interviewed said that they had never heard any previous accusations of Biden engaging in sexual misconduct.

In conducting its investigation, CNN interviewed Reade and learned more about her background. Reade told CNN that she had earned a bachelor of arts degree from Seattle, Washington-based Antioch University under a “protected program,” where the former president of the school ensured that her identity was protected while she was attending classes. Reade also claimed that she was a visiting professor at the university, on and off for a period of five years.

When CNN fact-checked Reade’s story, Karen Hamilton, an Antioch University spokesperson confirmed that Reade had “attended but did not graduate from Antioch University.” Hamilton also stated that Reade, “was never a faculty member. She did provide several hours of administrative work.” Antioch University also told CNN that it had never had a “protected program.”

Expert Witness on Domestic Violence

Misrepresenting her past is especially problematic, as Reade has previously served as an expert witness in domestic violence cases.

On December 12, 2018, Reade appeared as an expert witness in California state superior court in Salinas. The Monterey County District Attorney’s Office called Reade as an expert witness on the dynamics of domestic violence. As part of her qualifications, Reade listed a bachelor’s degree from Antioch University. Reade also listed a role as an “ongoing online visiting professor” at Antioch for five years.

According to Roland Soltesz, the lawyer of the woman who was charged for attempted murder in the case where Reade testified as an expert, Reade was “beloved” by local prosecutors. Patrick McKenna, executive director of a legal group that handles appeals for indigent defendants in the Salinas area, said that Reade had  testified as an expert witness over 20 times.

At the time of the trial, Soltesz and another lawyer had challenged Reade’s credentials as an expert, arguing that Reade’s experience “was largely in advocacy work.” The trial court judge rejected the argument, ruling that Reade had the proper educational background and experience to testify as an expert. Cases in which Reade testified might now be reopened, given that the educational background that allegedly qualified Reade as an expert was falsified.


Florida Computer Expert Arrested for Lying About Credentials Under Oath

Florida Supreme Court Throws Out Circumstantial Evidence Standard

The current version of the Florida Supreme Court is no respecter of precedent. The Court recently upheld the conviction of a man for the murder of his estranged wife. In doing so, the court threw out a legal standard about circumstantial evidence in criminal appeals.

Murder of Nicole Elise Bush

In 2011, deputies from the Jacksonville Sheriff’s office went to the home of 35-year-old Nicole Elise Bush for a welfare check. The deputies found Nicole, shot six times, stabbed, and beaten with an aluminum bat. She died later at a Jacksonville hospital. Her children were at school at the time of the attack.

Following an investigation, the Sheriff’s Office obtained a warrant for the arrest of Nicole’s estranged husband, Sean Alonzo Bush. The gun and the weapon that were used to attack Nicole were never found. However, investigators developed circumstantial evidence against Bush, including a life insurance policy that named him as a beneficiary. In the absence of any better suspect, Sean Alonzo Bush with charged with the murder of his estranged wife.

Trial of Sean Alonzo Bush

Following a jury trial, Sean Alonzo Bush was convicted of first degree murder, felony murder, and burglary of a dwelling with an assault and while armed with a firearm. The jury unanimously recommended a death sentence. Circuit Court Judge Howard Maltz followed the jury’s recommendation and sentenced Bush to death.

Appeal to the Florida Supreme Court

Bush appealed his conviction to the Florida Supreme Court. The court upheld Bush’s conviction. The court pointed to the fact that Bush was in financial trouble, he was aware that he was the beneficiary of Nicole’s $815,240 life insurance policy, and he submitted a claim for the policy proceeds a few weeks after the murder. All of those facts are entirely consistent with innocence. The court nevertheless wrote, “Because a rational trier of fact could, and did, find from this evidence that Bush committed the first-degree murder of Nicole under both premeditated and felony murder theories, Bush is not entitled to relief.”

The court also took the opportunity to abandon the “special appellate standard” for circumstantial evidence that had previously been the law in Florida.

The court explained that Florida had previously used a different standard to evaluate wholly circumstantial evidence on appeal than it used in a case with some direct evidence: “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” The court noted that this standard was confusing and also in conflict with the standard that has been adopted by all federal courts and the majority of state courts after the United States Supreme Court had called the standard into question in 1954.

The court stated that, moving forward, Florida appellate courts should use a standard like the one used in cases with some direct evidence, “whether the state presented competent, substantial evidence to support the verdict.” One might think that evidence should be more that speculative to prove guilt beyond a reasonable doubt, but the absence of evidence that Bush actually committed the murder did not appear to trouble the conservative majority.

The per curiam opinion was joined by Chief Justice Canady, and Justices Polston, Lawson, and Muniz. Justice Labarga concurred in part and descended in part, writing separately to note disagreement with the majority’s decision to abandon its circumstantial evidence standard of review.



Law Professor Defends “Stand Your Ground” Laws

A law professor and commissioner on the United States Commission on Civil Rights has filed a statement in support of the “Stand Your Ground” laws that were the subject of a recent Commission on Civil Rights report.

Stand Your Ground Laws

Under the common law castle doctrine, the use of deadly force is justified in the case of a person defending their home. Stand Your Ground laws are extensions of this castle doctrine, allowing the use of deadly force beyond the confines of one’s home, into any area where a person “has a right to be” in defense of their person or property.

The United States Commission on Civil Rights Report

In April 2020, the United States Commission on Civil Rights published a report entitled “Examining the Race Effects of Stand Your Ground Laws and Related Issues.” The report was based upon a briefing that was held before the commission in Orlando, Florida in 2014.

The purpose of the briefing and report was to “determine whether there is a possible racial bias in the assertion, investigation, or enforcement of justifiable homicide laws in states with Stand Your Ground provisions.” The briefing consisted of expert testimony from state legislators, academic researchers, and advocates.

The published report consisted of statements by Commissioner Michael Yaki, Commissioner Gail Heriot, and Commissioner Peter N. Kirsanow and a transcript of the Stand Your Ground Public Briefing Transcript that was held on October 17, 2014.

Dissenting Statement

Commissioner Gail Heriot, who is also a law professor at University of San Diego, wrote a dissenting statement to accompany the report. In her dissent, Heriot wrote that the commission report had ignored its own research that indicated that “Stand Your Ground” laws do not disproportionately harm African Americans. She wrote, “This report should not have been published in this form.”

Heriot continued, “When the results of an empirical study don’t come out the way Commission members hoped and expected that they would, the right thing to do is usually to publish those results anyway. Why hide useful information? Instead, the Commission sat on the report for years. Then it decided to discard the draft written by our staff and publish instead a transcript of the witness testimony received at our briefing that took place on October 17, 2014 in Orlando, Florida.”

She continued, “The Commission is publishing this transcript more than seven years after Trayvon Martin passed away — without any reference to its independent research on the subject. The controversy over his death and over ‘Stand Your Ground’ laws has largely faded out of the headlines. Some members of this Commission might be inclined to bemoan this report not being as relevant as it might have been had it been ready closer to 2012. I disagree. Cooler heads should have prevailed early on during the debate over Stand Your Ground laws. But they did not. Now that years have passed, the Commission could have made a modest contribution to that debate by publishing the results of its research. It chose to bury those results instead only because they did not go in the direction the Commission’s majority was hoping for.”

Gavel and scales

Ninth Circuit Panel Questions Precedent

A three-judge panel of the Ninth Circuit Court of Appeals ordered a new trial in a case where a district court had used the wrong standard in barring expert testimony. However, in a concurring opinion, the judges noted that while precedent requires a new trial, that result didn’t make sense in this case.

The District Court Case

Patrick Bacon and Daniel Ray were convicted of assault with a deadly weapon with intent to do bodily harm and assault causing serious bodily injury as the result of a metal shank stabbing of another prisoner at federal prison in Victorville.

At trial, Bacon pleaded insanity. Bacon’s defense attorneys retained forensic clinical psychologist Dr. Nadim Karim to testify on Bacon’s behalf. Dr. Karim was prepared to testify that Bacon’s mental health disorders would have caused him to have trouble understanding the consequences of his actions at the time of the stabbing.

District Court Judge Percy Anderson of the Central District of California excluded Dr. Karim’s testimony. Judge Anderson reasoned that “Dr. Karim’s opinion that an individual who was suffering from a myriad of severe mental health disorders that Mr. Bacon was facing would have had difficulty understanding the nature and quality of his action at the time of the offense conduct is equivocal and will not help the trier of fact to understand the evidence or determine the issue of sanity.”

Bacon was sentenced to 10 years in prison. Ray was sentenced for eight years and four months for his role in the crime.

The Ninth Circuit

Brown appealed the ruling to the Ninth Circuit Court of Appeals. His case was heard before a three-judge panel consisting of Circuit Judges Paul J. Watford and Mark J. Bennett, joined by District Court Judge Jed S. Rakoff of the Southern District of New York, sitting by designation.

On appeal, the Ninth Circuit ruled that Judge Anderson had applied the incorrect legal standard. Instead, Judge Anderson should have made his decision based on whether Dr. Karim’s testimony would assist the jurors in drawing their own conclusions regarding “Dr. Karim’s opinion that an individual who was suffering from a myriad of severe mental health disorders that Mr. Bacon was facing would have had difficulty understanding the nature and quality of his action at the time of the offense conduct is equivocal and will not help the trier of fact to understand the evidence or determine the issue of sanity.”

The court clarified  that it was not ruling that the district court must admit Dr. Karim’s testimony on remand — it was only holding “that the district court abused its discretion in finding the testimony was not relevant to Bacon’s insanity defense.” Under Ninth Circuit precedent, this abuse of discretion required a retrial.

However, Judge Watford wrote a concurring opinion joined by Judges Bennett and Rakoff. He wrote that he agreed with the panel’s ruling, but that he wrote “separately to highlight how wasteful of judicial resources that remedy potentially is.”

He gave the example, “What if, on remand, the district court decides that Dr. Karim’s testimony is insufficiently reliable, and thus must be excluded once again? If that occurs, why in the world should the court hold a new trial at which a second jury will hear the same evidence heard by the jury at the first trial?”

Judge Watford suggested that a better procedure would be to “conditionally vacate the judgment and remand to the district court with instructions to determine whether the disputed expert testimony was admissible” under the relevant court rule and case law. This course of action was previously suggested by Ninth Circuit Judge Jacqueline H. Nguyen’s concurring and dissenting opinion in the 2014 case of Estate of Barabin v. AstenJohnson, Inc.

Netflix Series Highlights Issues With Bite Mark Evidence

A popular Netflix series has called attention to the faulty science behind bite mark evidence.

Bite Mark Evidence

Bite mark evidence purports to be a branch of forensic odontology, where dentists attempt to match marks that were found at crime scenes to dental impressions of suspects. When a victim has been bitten during the commission of a crime, dentists claim the ability to match the bite mark to the teeth of a suspect.

Bite mark evidence has been used for many years in criminal prosecutions. Oftentimes, bite marks are found at the scene of violent crimes such as murders and assaults on areas like skin, clothing, and soft tissue.

Opponents to the use of bite mark evidence argue that is flawed because it is subjective to the person examining the evidence. Since skin stretches, it can easily be maneuvered into a position that seems like a match.

The California Innocence Project notes that, “Different experts have found widely different results when looking at the same bite mark evidence. Such subjectivity has no place being touted as science in the courtroom, as it is extremely persuasive to a jury, especially where someone has been wrongfully accused.”

Netflix Series “The Innocence Files”

The popular streaming company, Netflix, recently released a limited series entitled, “The Innocence Files,” which examines cases of wrongful convictions. In the first three episodes of the series, bite mark evidence is called into question.

In the first episode, the series introduces two men from Noxubee County in Mississippi: Levon Brooks and Kennedy Brewer. In 1992, Brooks was convicted of the capital murder of three-year-old Courtney Smith. His conviction was supported by eyewitness testimony and bite mark evidence. Later that year, Brewer was convicted of the rape and murder of three-year-old Christine Jackson. His conviction was in part supported by bite mark evidence.

Forensic odontologist Dr. Michael West testified in both trials. In Brooks’ trial, Dr. West testified that “Levon’s dental impressions were a ‘really good match’ for a potential bite left on the victim’s wrist.” In his medical report, Dr. West opined “that ‘indeed and without a doubt the bite marks on Courtney were made by Levon Brooks.” In Brewer’s trial, Dr. West offered testimony about the presumed bite marks found on the victim and Brewer’s dental impressions. Brewer’s defense team retained a world-renowned forensic odontologist, Dr. Richard Souviron, to rebut Dr. West’s claims; however, the jury ultimately found Brewer guilty.

In 2000, Brewer reached out to the Innocence Project for help proving his innocence. The Innocence Project tested the DNA of the victim’s rape kit, which excluded Brewer as the source of the semen. Further investigation revealed another possible suspect for the murders of Christine Jackson and Courtney Smith—a man who had a previous record of multiple home invasions in the same community, Justin Albert Johnson. Johnson’s DNA matched the DNA found in Christine Jackson’s rape kit. He eventually confessed to the murder of both girls; however, he denied ever biting either one.

As a result of Johnson’s confessions, Brooks and Brewer were exonerated for their convictions. According to the documentary, Dr. West’s expert testimonies have contributed to 6 known wrongful convictions.