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.

Baby

Expert on Postpartum Depression to Provide Defense Testimony in Baby Murder Trial

The defense team of a man on trial for the murder of his infant son has announced that they plan to call an expert on postpartum depression to testify on the man’s behalf.

The Death

In August 30, 2017, 4-month-old Sterling Koehn was found dead in his baby swing by Chickasaw County sheriff’s deputies after his father, Zachary Koehn, requested that an ambulance come to his apartment. Sterling’s body was found with maggots crawling all over him and with a diaper that hadn’t been changed in over a week. Sterling weighed less than 7 pounds.

Koehn told the responding deputies that his girlfriend had fed Sterling that morning “and he was fine.”  Harris reportedly checked on the baby a couple hours later and found that he had died.

An autopsy of the body showed “maggots in various stages of development in his clothing and on his skin.” A forensic entomologist examined the maggots and concluded that Sterling had not been removed from the baby swing in more than a week and had not had a diaper change or bath during that time. The Iowa state medical examiner ruled the death was a homicide and the cause of death was failure to provide critical care.

Sterling’s parents, Zachary Koehn, 28, and Cheyanne Harris, 20, were charged with first-degree murder and child endangerment.  Koehn and Harris are being tried separately.

Murder trial of Zachary Paul Koehn

Koehn’s defense team retained an expert on postpartum depression to testify as an expert witness. Postpartum depressions can cause debilitating anxiety, depression, and fatigue in new mothers. The prosecutor on the case, Assistant Iowa Attorney General Denise Timmins, asked the court to disallow any evidence of Harris’ mental health.

Public Defender Steven Drahozal said, “The mental health status of that parent, we think, is extremely important to whether or not Mr. Koehn denied care to the child. … This is relevant to whether Mr. Koehn acted appropriately and willingly in denying care to his child and whether he was inquiring and what information he was being given, who the primary caretaker was, what kind of care was being given.”

Drahozal intends to argue that Koehn believed that Harris was caring for the infant, but that she wasn’t because of postpartum depression. Koehn’s defense team also subpoenaed Harris to testify, but her attorney, Aaron Hawbaker, invoked her Fifth Amendment right against self-incrimination.

Hawbaker said, “Nobody from the state or the defense can call her simply to take the stand and assert the Fifth, so we are asserting her right against self-incrimination.”

Koehn’s defense team is also seeking to exclude some of the photos of Sterling’s remains, arguing that the photographs are gruesome and don’t go to prove the nature of the death. Drahozal said that the medical examiner and sheriff’s deputies could testify about the condition of the body and cause of death without using the photos. The prosecution has argued that the images are important to answering questions about the time and manner of Sterling’s death.

Seal of State of Florida and Gavel

Expert Testifies Police Killer May Be Linked to Extremist Group

An expert has testified that a man who is on trial for fatally shooting two Florida police officers may be tied to an extremist anti-government political group.

The Shooting

On August 18, 2017, Kissimmee Police Officer Matthew Baxter was on patrol when he approached three people to investigate a report of suspicious activity. One of the men, Everett Glenn Miller, recorded the confrontation on his phone.

In the video, Miller is seen telling Baxter, “Call your sergeant, please, sir. . . . Hey, call everybody up here. We ‘bout to put this on Facebook Live.”  Baxter is seen on video requesting Miller to, “Please come here.” Miller responded, “I’m not coming to you. You come to me.”

Baxter later called for his sergeant, Richard “Sam” Howard. A “scuffle” broke out and Baxter and Howard were shot in the head. Baxter died that night and Howard died the next day.

Deputies who arrested Miller reported that he appeared to be reaching for a gun before he was subdued. Miller was in possession of two handguns, including a revolver with six spent casings.

Miller is charged with two counts of first-degree murder, carrying a concealed weapon, and resisting without violence in connection with the deaths.

Expert Testimony

At a pretrial hearing, an expert witness on political and anti-government extremism testified for the prosecution. The expert testified that Miller’s beliefs are consistent with those of a group that the FBI has designated as extremist.

The expert said, “his beliefs are consistent with those of the Moorish movement, a loosely-knit group of related organizations that fall under the black identity extremist (B.I.E.) designation.” The expert also testified that Miller was using a name on social media that indicated his beliefs, Malik Mohammad Ali. The expert also said that she found notes in his car and books that indicated a link to the Moorish movement.

The expert referenced a now declassified FBI intelligence assessment titled “Black identity extremists likely motivated to target law enforcement officers.” She used the report to explain why the FBI believes the extremists seek to use force or violence in response to perceived racism and injustice in American society to establish a separate black homeland in the United States.

The expert listed Miller’s following actions as showing a link to the Moorish movement: his use of the #makeamerickkamooragain in social media, requesting a book about black superiority, and notes in his car that referenced Moorish leaders.

Since political beliefs are constitutionally protected, the court might ultimately exclude the evidence as more prejudicial than probative of guilt. The court might conclude that the expert’s testimony is designed to prove guilt by association or that it is likely to inflame the jury’s passions. Political beliefs in themselves do not establish that everyone who shares those beliefs has an incentive to commit murder.

Miller’s next court hearing is scheduled for November, with a trial that could begin in early 2019.

Miller’s Background

Miller is a former Marine whose background reportedly includes intelligence analysis during Operations Noble Eagle, Enduring Freedom and Iraqi Freedom while working with the United States Special Operations Command.  While enlisted as a Marine, Miller was stationed in Tampa, North Carolina and Okinawa, Japan.

Miller’s neighbor, Cartrell Bright, commented that he was heartbroken about Miller’s arrest and that he had shown signs of mental illness.  Bright said, “He’s sick. . . . He just lost his mind or something.”

Newborn Baby

Circumcision Expert Testifies in Medical Malpractice Trial

A circumcision expert provided key testimony in the trial of a midwife who cut off part of a baby’s penis.

The Botched Circumcision

In October 2013, Certified Nurse Midwife Melissa Jones performed a circumcision on the 18-day-old son of Stacie Willis, who is known as Baby D. During the circumcision, the child’s penis was caught in a Mogen clamp and the tip of the glans was amputated. Dr. Brian Register, an OB/GYN who was the supervising physician, was called to stop the hemorrhaging. A Certified Nurse Midwife and owner of the clinic where the procedure was performed, Anne Sigouin, was also called to assist.

Sigouin advised Dr. Register to call the boy’s pediatrician, Dr. Abigail Kamishlian. Dr. Kamishlian advised Willis to take her son home and to visit and emergency room if the bleeding began again.

No one notified Willis of the amputation or that the severed glans tissue was preserved in saline solution in the clinic’s lab refrigerator.

Willis took her son to a branch of Children’s Healthcare of Atlanta, where she learned that Baby D had an incomplete circumcision and a significant laceration to his glans.

For the next five years, Baby D would undergo four major surgeries that failed to correct the amputation. Baby D is permanently disfigured with medical bills in the tens of thousands.

The Lawsuit

Willis filed suit against Melissa Jones, Anne Sigouin, Dr. Brian Register, Life Cycle Pediatrics, LLC, Life Cycle OB/GYN, LLC, Dr. Abigail Kamishlian, and Daffodil Pediatric and Family Medical Services, LLC claiming medical malpractice, negligence, gross negligence, negligent hiring, retention, training and supervision, fraud, constructive fraud, fraudulent concealment, and aggravated battery.

Expert Witness Testimony

During trial, Dr. Fred Kogen provided expert witness testimony. Dr. Kogen is a General Practitioner (G.P.) and mohel, which means he is trained to perform the Jewish ritual of circumcision. Dr. Kogen gave testimony that demonstrated to the jury the proper way to conduct a circumcision.

Dr. Kogen explained that there is nothing else on the body similar to glans tissue and if it is severed, everything should be done to save and reattach it. Dr. Kogen testified that there is only a narrow window of 12 hours during which the tissue is viable.

Dr. Kogen said, “If I had a piece of glans that was taken off, there’s no doubt in my mind I would do the best I can to save that, and I would get in touch with someone who could use it to potentially help this baby.”

He continued, “I’ve performed 7,000 circumcisions and this has never happened to me. I’ve never had a complication like this. . . . This is something that — it’s not even a complication. It’s an injury that should never, ever occur if the technique is done properly.”

The Verdict

A Clayton County jury awarded Baby D $31 million in damages. The total includes $780,000 for past and future medical expenses, as well as $30 million in past, present and future pain and suffering. The jury consisted of seven women and five men.

Justice Scales

Plymouth State University Drops Professor After She Testifies as Expert Witness for Rape Defendant

A Plymouth State University Professor was not rehired after she testified as an expert witness for a rape defendant.

The Rape Case

In July 2018, 39-year-old Kristie Torbick of Lee, New Hampshire pleaded guilty to sexually assaulting a 14-year-old student while she was employed as a guidance counselor at Exeter High School. She was sentenced to serve 2.5 to 5 years in prison.

For Torbick’s sentencing hearing, her therapist Dr. Nancy Strapko testified and wrote a letter in support of Torbick. Dr. Strapko is a registered New Hampshire sexual offender treatment provider who had been seeing Torbick for over a year. Strapko was an associate professor emeritus and former graduate school health education coordinator at PSU.

Strapko attributed Torbick’s decision to engage in sexual acts with a minor to her upbringing by an abusive and alcoholic mother and being molested by one of her mother’s partners. Strapko insisted that Torbick was not a predator and wrote, “Kristie takes full responsibility for her actions with her ‘victim.’ I put this in (quotes) because I am aware that her ‘victim’ was truly the pursuer in this case.” Two other Plymouth State professors, Michael Fischler and Garry Goodnough, also wrote letters in support of Torbick.

Plymouth State University Reaction

Following the sentencing, Plymouth State University president Donald Birx and provost Robin Dorff released a statement saying that Strapko’s portrayal of the victim was “legally wrong and morally reprehensible.”

Birx stated, “I want to make the position of the University clear: Plymouth State University condemns in the strongest terms the actions of Ms. Torbick and supports the victim in this case. We take seriously the sacred trust between educators, students and families and, in the case of Ms. Torbick, that trust was broken. . . . What Ms. Torbick did as a former member of this community and a graduate of PSU is a violation of what Plymouth State University as an institution and as a community stands for and the values we teach to students every day. We all must work together to support this victim and anyone who suffers abuse in any form.”

Plymouth State University spokesperson Marlin Collingwood also stated that the writers did not represent PSU.

Plymouth State University decided not to rehire Strapko. Professors Fischler and Goodnough agreed to complete sexual assault training before returning to teach at the university.

Reaction to University’s Actions

Following Plymouth State University’s announcement that it would not rehire Strapko, the Foundation for Individual Rights in Education has spoken out against the decision. Zachary Greenberg, program officer in FIRE’s Individual Rights Defense Program, has called the university’s actions as unconstitutional.

Greenberg wrote, “By imposing penalties on these professors, PSU runs afoul of the First Amendment and its own academic freedom policies. Although adjunct professors are without the benefits of tenure, public universities may not refuse to rehire them over protected expression, as such an act is retaliatory in nature and violates their First Amendment rights.” Critics could also note that requiring professors to engage in Soviet-style reeducation programs is an affront to academic freedom.

He continued, “Furthermore, state university professors generally may not be punished for their speech as private citizens, so long as the expression consists of matters of public concern and does not disrupt the educational environment. Both Fischler and Strapko were speaking as private citizens because they were not employed by PSU for purposes of providing analysis to the trial court judge, and a reasonable recipient of their communications would not believe they were made on behalf the university, especially one that explicitly disavowed the opinions of these professors in this matter.”

The University’s shameful breach of academic freedom may have a chilling effect on expert witnesses. That can only hurt the court system, which depends on experts to offer honest opinions, even if academic employers do not regard those opinions to be consistent with their political values.

Georgia

Georgia Court of Appeal Rules Contractor Does Not Qualify at Expert But May Still Testify About Property Value



The Court of Appeals of Georgia has ruled that a contractor did not qualify as an expert witness, but may still offer testimony about the value of a property.

Property Damage

The Woodrums are an insured couple who suffered property damage when a large tree fell onto their roof during a thunderstorm. They went through the appraisal process with their insurer, Georgia Farm Bureau Mutual Insurance Company. After a disagreement over the appropriate value of the insurance claim, the Woodrums filed a lawsuit against their insurance carrier seeking payment for diminution in value.

The Lawsuit

The Woodrums claimed breach of contract and breach of the implied covenant of good faith and fair dealing.

The couple argued that the tree fall caused cracks in the foundation of their home, which diminished the value of their property. The couple argued that the diminished value was a covered loss under their policy that was not included in their appraisal award.

During the lawsuit, the insured couple presented their contractor who had repaired their home to testify about the diminution in their property value. The contractor opined that the value of the house had decreased by 25 percent because of the cracked foundation. The insurance company filed a motion to exclude the testimony of the contractor.

The trial court granted the motion to exclude the contractor’s testimony as both an expert and a lay witness. The trial court also granted the insurer’s motion for summary judgment on both claims because neither claim could stand without the excluded testimony.

The Appeal

The Woodrums appealed.

On appeal, the Georgia Court of Appeals held that the court did not err in excluding the contractor’s testimony as an expert witness because “[his] estimation of the diminution in value of the subject property ‘was not based on any market comparisons or related methodology’” and that the insureds “failed to establish that the methodology by which [the contractor] reached his conclusions was sufficiently reliable” to qualify him as an expert witness.

The appellate court reversed the order as to the contractor giving lay witness testimony as to value because the trial court record demonstrated that the contractor had the opportunity to form a reasoned opinion about the value of the house. The court also reversed the order of summary judgment.

The appellate court noted several facts contained within the contractor’s affidavit and deposition testimony that showed that he was qualified to give an opinion about the amount the foundation damage diminished the value of the property as a lay witness.

The court noted that the contractor was licensed; was experienced in home building and remodeling; was familiar with the costs of construction and valuation of homes; had experience inspecting homes for structural integrity and giving opinions as to value; had performed repairs to the home; and had helped build an addition to the Woodrum’s home. The court noted that the contractor’s opinion as to the diminished value of the property was based upon his experience.

As a general rule, courts allow property owners to express lay opinions about the value of their own property. It is not unreasonable to extend that rule to contractors, although doing so blurs the distinction between a lay opinion and an expert opinion. The court cited the contractor’s expertise to justify the admission of his opinion.

The appellate court’s opinion seems like an end run around the Daubert standard’s requirement that experts use a “reasonable methodology.” Questions arise about the rigid application of Daubert in cases like this one, where the expert is not a scientist. The traditional rule allows expert opinions to be based on knowledge and experience. Recognizing a contractor’s expertise in estimating the reduction in property value caused by damaged would be consistent with the traditional rule, and would not inconsistent with the flexible application that courts give to Daubert when testimony is not based on science.

Blood analysis

Blood Spatter Expert Admits Conclusions Incorrect

The expert whose testimony was key in a 1985 murder conviction now says that he believes some of his conclusions were incorrect.

Murder Conviction of Joe Bryan

Joe Bryan was convicted of killing his wife Mickey in 1985, but has always maintained his innocence.  At the time of his arrest, Bryan had no criminal record. In the days surrounding his wife’s murder, Bryan had been 120 miles away at a principals’ convention. According to the state’s theory, Bryan had left his hotel in the middle of the night, drove home and shot his wife, then returned to his hotel and his convention the following morning.

During both of Bryan’s trials, police Detective Robert Thorman’s testimony was key in helping to explain why no blood was found inside Bryan’s car. Thorman testified that the tiny flecks of blood on a flashlight that was found in Bryan’s trunk were “back spatter,” a pattern that indicated a close range shooting. Thorman’s testimony tied the flashlight to the crime scene, when he opined that the killer had likely held the flashlight in one hand while firing a pistol with the other.

Thorman was a police detective from Harker Heights, Texas, who had only had 40 hours of training in bloodstain-pattern analysis when he was called to consult on Bryan’s case.

Innocence Investigation

In May, Bryan’s case was the subject of an investigation by ProPublica and the New York Times Magazine that questioned the accuracy of the bloodstain-pattern analysis that was used to convict him.

Last month, the Texas Forensic Science Commission announced that the blood-spatter analysis that was used to convict Bryan was “not accurate or scientifically supported.” The commission is an organization that investigates complaints about the misuse of forensic testimony and evidence and criminal cases.

The commission asked bloodstain-pattern analyst Celestina Rossi to re-examine the case. Rossi was critical of Thorman’s interpretation of the crime scene and the flashlight. Rossi determined that the dark-brown flecks that were found on the flashlight did not “radiate back in a radiating pattern” as they would have in “a back-spatter event.” Therefore, she concluded that the bloodstains were inconsistent with a close range shooting.

Rossi said, “Thorman’s testimony was egregiously wrong. . . . If any juror relied on any party of his testimony to render a verdict, Mr. Bryan deserves a new trial.” Thorman’s “expert” testimony is another example of how police officers who dabble as “experts” often see themselves as advocates who seek convictions rather than neutral experts who seek the truth.

Affidavit Recanting Testimony

Bryan’s defense team filed a motion for a new trial. At a hearing on the motion, Bryan’s attorney Jessi Freud presented an affidavit for Robert Thorman recanting his testimony.

Thorman’s affidavit stated, “Some of the techniques and methodology were incorrect. Therefore, some of my testimony was not correct.” Thorman stated, “In no way did I lie in my report or testimony. . . . I was doing what I thought was correct as a result of my training at the time.” Thorman’s affidavit did not specify which portions of his testimony were erroneous.

The motion is before Judge Doug Shaver who will make a recommendation to the Court of Criminal Appeals as to whether Joe Bryan should get a new trial.

Arizona Legal System Concept

Forensic Scientists, Medical Examiner, Print Expert Testify in Trial for Murder of Slain Couple

A group of expert witnesses has testified in the ongoing murder trial of Derrick Barnett, who is accused of killing an Arizona couple in May 2017.

The Killing

On May 2, 2017, the husband of a friend of Nora Dimuria went to her home to do a welfare check when she failed to show up for work. When the man arrived at her home, a contractor was pulling up to the home at the same time. The two approached the home and found a broken window and open back door.

Upon entering the home, the men found a dead dog in the kitchen and Nora’s body in the bathroom next to the kitchen. The two left the house and called 911.

The responding deputies found Michael Dimuria’s body under two throw rugs outside the guest house. They found bullet casings near both bodies and bullet holes in several walls and in a window.

Neighbors who were interviewed reported that they hurt gunshots in the night, but had not been concerned because target shooters are common in the area.

The Arrest

The Coconino County Sheriff’s Office received a tip about Derrick Barnett’s possible involvement with the killing.

Barnett was indicted on August 3, 2017 on two counts of first degree murder, one count of first degree burglary, one count of theft, three counts of misconduct involving weapons, one count of cruelty to animals, one count of theft as a means of transportation, and one count of felony criminal damage. He pled not guilty to all charges.

Trial Testimony

At trial, numerous expert witnesses provided key testimony.

Brandon Nabozny, a specialist in forensic photography, crime scene, latent prints, and forensic chemistry, was called to provide detailed analysis of the evidence that was collected at the Dimuria home following the murders. Nabozny testified about the tools that were found in the home, including hammers, a chisel, and bolt cutters. He also identified fragments found as broken glass and fragments from firearms. Nabozny identified a glass candy jar and wrappers that were used to detect DNA presence.

Dr. Larry Czarnecki, Coconino County Medical Examiner, testified about the causes of death for Michael and Nora and their dog T.C. Czarnecki has been a medical examiner for 13 years. He testified that he typically performs exams away from the scene of the crime, but had to come to the Dimuria home because the suspect was still at large. Czarnecki testified that the dog had been shot at the top of the head and a bullet was lodged in the front of the neck. He said that it was likely a .22-.25 caliber bullet. Czarnecki said that Michael had suffered three gunshot wounds to the head, which were the ultimate cause of death. Czarnecki testified that Nora also died from gunshot wounds.

Kristen Dick, a forensic scientist with the AZDPS Northern Regional Crime Lab testified that she assisted with the crime scene. Dick testified that Barnett’s DNA matched all 23 locations taken from the Jeep Liberty steering wheel and gear shift. Barnett’s DNA was also found on a water bottle found in the jeep and a plastic spoon found on his campsite.

Starr Douglas, a latent print expert with the Arizona DPS testified that she examined over 16 items and made positive identifications on four of them. One item, a 9mm handgun, had Barnett’s fingerprints on it.

Seal of State of Florida and Gavel

Florida Supreme Court Rejects Expert Witness Challenge in Medical Malpractice Case

The Florida Supreme Court has allowed a medical malpractice case to move forward, overruling the decision by the court of appeal that a case should be dismissed because an expert witness was not qualified.

The Patient’s Death

In October 2008, 20-year-old Shunteria McIntyre of Jackson County, Florida began seeking prenatal care at Marianna OB/GYN Associates with Dr. Orlando Muniz. During her pregnancy, McIntyre visited Muniz numerous times for nausea, vomiting, dizziness, and other symptoms. She had lost 36 pounds in a period of a little more than two months.

In January 2009, McIntyre gave birth to a stillborn child. After delivery, McIntyre underwent a surgical dilation and curettage and was later discharged. Three days later, McIntyre collapsed and died.

McIntyre’s estate filed a medical malpractice against her doctors, the hospitals, and the medical practice that treated her.

Expert Witness Challenge

The McIntyre estate retained Texas obstetrician and gynecologist, Margaret M. Thompson, as its expert witness. Attorneys for the defendants challenged whether Thompson was qualified to testify as an expert.

Dr. Thompson’s affidavit and curriculum vitae stated that she was a board-certified obstetrician/gynecologist for thirty years and engaged in full-time patient care prior to her retirement in March 2008. Thompson’s retirement occurred nine months before McIntyre’s death.

Defense counsel challenged her credentials based on the fact that Thompson had been attending law school and graduate school during the years prior to McIntyre’s death. That Thompson had been in school raised the question of whether she met the requirement to be “duly and regularly engaged in the practice” of her profession. Defense counsel also challenged whether they had been improperly denied additional information about Thompson’s background.

The circuit court dismissed the case, ruling that Thompson was not legally qualified to provide and expert opinion and the McIntyre estate had not properly complied with the discovery process. The First District Court of Appeal affirmed. McIntyre’s estate appealed to the Florida Supreme Court.

Supreme Court Ruling

In a majority opinion by Justice Barbara Pariente, the Florida Supreme Court rejected the circuit court’s opinions. The court wrote, “Her long career included serving as chief of the OB-GYN department at a large medical center and chief of staff at a small women’s hospital. . . . In short, Dr. Thompson is just the type of expert that the Legislature would consider is qualified.” Pariente was joined by justices R. Fred Lewis, Peggy Quince, and Jorge Labarga.

Chief Justice Charles Canady filed a dissenting opinion, voicing his concern that Thompson had not been “duly and regularly engaged” in practicing obstetrics and gynecology when she had provided her affidavit in 2011. Canady wrote, “The record reveals that at the time Dr. Thompson executed the affidavit, she had been retired from her OB/GYN practice for more than three years and by all indications had transitioned (or was transitioning) into a new career. . . . The fact that Dr. Thompson had a lengthy career as an OB/GYN before retiring in March 2008 does not defeat the plain language of the relevant statutes.” Chief Justice Canady was joined in his dissent by justices Ricky Polston and Alan Lawson.

Wooden Mallet and flag Of New Jersey

Court Throws Out Digital Evidence When Experts Could Not Authenticate It

A New Jersey administrative law judge has barred the introduction of digital evidence when experts were unable to explain how the data was collected.

The Allegations

The State of New Jersey filed charges against John Savadjian, alleging that he transferred “orphan” accounts, or accounts without a servicing agent, to his book of business without authorization from his supervisors or the account owners.

Savadjian is an insurance producer, which makes him subject to the New Jersey Insurance Producer Licensing Act.  N.J.S.A. 17:22A-26 et seq. The Producer Act prohibits fraudulent, coercive, or dishonest practices. Prudential procedures required agents to have a policyholder’s signed consent prior to transferring their account to their book of business.

Savadjian’s supervisor sent faxes approving the transfer of a limited number of orphaned accounts to his book of business without the policyholders’ signed consent. New Jersey alleges that, without the knowledge or approval of that supervisor, Savadjian used those same fax letters multiple times to move additional additional orphan accounts to his book of business.

New Jersey also alleges that Savadjian forged the signature of account holders authorizing the transfer of their accounts and that he misrepresented his identity to Prudential’s customer service office over the phone.

Savadjian denied all allegations.

Administrative Law Hearing

New Jersey presented a CD with recordings of phone calls that had been allegedly made by Savadjian and a spreadsheet that showed the metadata of the calls to enter into evidence.  Savadjian objected, arguing that the items were not authentic because the audio recordings had been stripped of their metadata.

The state planned to call Thomas Schreck, director of Prudential’s corporate investigation to testify as an expert witness. Schreck had reviewed the calls and worked with the employee who had created the report containing the metadata of the phone calls. Schreck was expected to authenticate the evidence.

Prior to Schreck’s testimony, he was suspended from Prudential. The state said that Prudential would provide another expert to authenticate the evidence in the case.

The Department of Banking and Insurance presented Charles Shanley, a director in Prudential’s corporate investigation division as an alternative expert to authenticate the evidence. Shanley testified that he had completed hundreds of investigations for Prudential, but had not been personally involved in the investigation of Savadjian.

During Shanley’s testimony, the cross-examination “revealed just how little he knew about the audio recordings at issue and the software system that recorded them.” Shanley also admitted that he did not have enough knowledge to disagree with Savadjian’s expert, who questioned the authenticity of the recordings.

Administrative Law Judge Barry Moscowitz ruled that the commissioner of Banking and Insurance could not admit into evidence audio recordings of calls that were allegedly made by Savadjian when he worked for Prudential Insurance. He wrote, “All Shanley knows is that the CD, the spreadsheet and the report, which DOBI seeks to admit into evidence, match the ones that someone in Prudential’s legal department gave to him in 2016. As such, Shanley does not know whether the CD, the spreadsheet or the report — which DOBI says are from 2013 — were altered between 2013 and 2016, when Shanley reviewed them.”

Buccal DNA

DNA Experts Provide Key Testimony in Rape Trial

Two DNA experts provided key testimony in the trial of Samuel Lee Lowry, a Pennsylvania man on trial for the rape of an unconscious person.

The Incident

In November 2014, a 26-year-old woman awoke in her apartment to find a naked man on top on her. The victim says that when she realized the person in her bed was not her boyfriend, she screamed and told him to get off of her and get out. She then grabbed her shotgun and pointed it at him.

The victim testified that the man turned on the light and got dressed and was looking for his shoes. When the man turned on the light, the victim recognized him by his nickname, “Duke,” from seeing him in her neighborhood. The victim said that months before, the man had knocked on her door and asked to sleep on her couch when it was raining and she had allowed him.

Lowry, 36, is accused of entering a woman’s apartment when she was sleeping, removing his clothing, climbing into her bed and attempting to have sex with her. Lowry was charged with burglary, rape of an unconscious person, sexual assault, indecent assault of an unconscious person, criminal trespass, and aggravated indecent assault.

Trial Testimony

At trial, Lowry chose not to take the stand in his own defense. Instead, two DNA experts provided key testimony at trial.

The prosecution retained Julia Garofalo as an expert. Garofalo is a forensic scientist and DNA expert who works at a state police crime lab in Greensburg, Pennsylvania. Garofalo analyzed the victim’s rape kit results for DNA. She testified that Lowry’s DNA was present on some of the samples taken from the woman’s neck and other areas. Garofalo testified that the crime lab received buccal swabs, which are samples from inside the cheeks of the woman, her boyfriend, and Lowry. Lowry’s DNA was most prevalent on the woman’s neck, which matched her story that she had awoken to Lowry on top of her, licking her neck.

The defense hired Dr. James Girard, a professor of chemistry at American University in Washington, D.C.  Defense counsel called Dr. Girard via Skype to explain an analysis of Garofalo’s report.

The Verdict

A jury of seven men and five women convicted Lowry on the charges of rape of an unconscious person, sexual assault and indecent assault of an unconscious person. The jury acquitted Lowry of the burglary charge.

Lowry’s sentencing hearing will be held at a later date. Sentencing guidelines call for Lowry to serve 8.5 to 20 years in prison. Lowry has two other felony cases pending against him in other courts. His other cases involve aggravated assault of a police officer and escape and a burglary and car theft.

Assistant district attorney Jonathan Miller said, “The district attorney’s office and the commonwealth are pleased with the jury’s verdict in this case … (they) returned a verdict that gave justice to the female adult victim for the crimes perpetrated against her.”