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.

Delaware

Delaware Supreme Court Rules that Trial Judge Misinterpreted Expert Testimony Precedent

The Delaware Supreme Court has ruled that a trial court improperly excluded expert testimony and has revived medical negligence claims against a doctor and a women’s health clinic.

The Lawsuit

In October 2013, Amanda Norman had a laparoscopy performed by Dr. Christine Maynard at the All About Women health clinic. In this diagnostic procedure, a doctor examines a woman’s reproductive organs. According to court documents, there were no reports of complications, but Norman experienced pain immediately following the procedure.

Norman went to the emergency room for treatment and found that her bladder had been ruptured. The rupture was attributed to the diagnostic laparoscopy.

Norman filed a medical negligence suit against Dr. Maynard and All About Women. Maynard and All About Women have denied the allegations of negligence and said that a ruptured bladder is a known complication of that procedure.

Medical Expert Testimony

Norman retained Dr. Jeffrey Soffer, M.D. as a medical expert to testify on how Dr. Maynard breached the standard of care. Dr. Soffer is a board certified obstetrician and gynecologist who serves as an attending physician at the Department of Obstetrics and Gynecology at Overlook Hospital in Summit, New Jersey. Dr. Soffer has performed hundreds of laparoscopies throughout his career.

Dr. Soffer opined that Dr. Maynard provided substandard care during Norman’s procedure. He said, “it is incumbent on the operating surgeon to be always aware of the exact anatomic position of adjacent structures in order to avoid inadvertent injury. The bladder . . . [would have been] in plain view.” Dr. Soffer said that a ruptured bladder “represents careless and sloppy surgical technique.”

Dr. Maynard and All About Women filed a motion to exclude Dr. Soffer’s opinions because they lacked the reliability to pass the standard set by Daubert v. Merrell Dow Pharmaceuticals, Inc. and Delaware case law. The Superior Court agreed, noting that Norman failed to meet her burden because she did not present evidence that Dr. Soffer’s opinion was “based on information reasonably relied upon by experts in the field.”

Delaware Supreme Court Ruling

Delaware case law that was developed based upon Daubert states that an expert qualifies if:

  1. The witness is qualified as an expert by knowledge, skill, experience,
    training or education
  2. The evidence is relevant
  3. The expert’s opinion is based upon information reasonably relied upon by experts in
    the particular field
  4. The expert will assist the trier of fact to understand the evidence or to determine a fact in issue
  5. The expert testimony will not create unfair prejudice or confuse or mislead
    the jury

The Superior Court concluded that the third factor, “the expert’s opinion is based upon information reasonably relied upon by experts in the particular field,” requires an expert’s opinion to be based on medical literature or other peer reviewed publication. That conclusion is inconsistent with the general consensus that standard of care opinions may be based on an expert’s experience rather than studies that may never have been conducted.

The Delaware Supreme Court reversed the Superior Court’s ruling. The court noted that an expert may qualify by skill, experience, knowledge, training, or education and that a medical negligence expert must be “familiar with the degree of skill ordinarily employed in the field of medicine on which her or she will testify” to give a standard of care opinion.

The Delaware Supreme Court stated that Dr. Soffer’s testimony, when considered as a whole, was sufficient to establish the standards of care, Dr. Maynard’s deviations from those standards, and the injury that those deviations cased to Norman. This decision returned the case to Superior Court for further proceedings.

Gun

Expert Witness Testifies that Officer Used Excessive Force in Teen’s Death

An expert in use of police force has testified that a former Balch Springs officer used excessive force when he shot and killed a 15-year-old teen.

The Shooting

On April 29, 2017, police officers responded to a house party in Balch Springs, Texas, that was attended by high school aged teens. Officer Roy Oliver said that he was inside the house when he heard gunshots fired outside the residence.

When Oliver got outside, he saw his partner, Officer Tyler Gross, pointing his gun at a car and ordering it to stop. Oliver said that he thought that Gross was in danger and that he saw the car moving toward him. Oliver said that he saw the silhouette of the person in the passenger seat of the vehicle move and that he thought his partner had found the shooter or information about the gunfire.

Officer Oliver opened fire on the car. Oliver would later testify, “(The car) came forward towards my partner and I had to make a decision this car is about to hit my partner, there are threats inside this car… I had no other option but to use lethal force. … A car is a deadly weapon.” Oliver’s partner testified that he did not fear for his life and felt no need to shoot.

Oliver’s shots struck 15-year-old Jordan Edwards in the head and killed him. Jordan had been sitting in the front passenger seat. His two brothers and two friends were also in the vehicle.

Oliver was fired and charged with murder and four counts of aggravated assault by a public servant as a result of the incident.

Expert Witness Testimony

At trial, the prosecution called FBI Supervisory Agent Dr. Philip Hayden to testify as its use of force expert. Hayden has worked as as a Supervisory Special Agent for the FBI since the early 1970s. Hayden is a well-known expert witness who specializes in police use of force, arrest procedures, and tactical training.

Hayden testified that Oliver used excessive force in shooting Edwards. Hayden said, “There’s no way at that point in time when the window was broken that he could say, ‘I looked over and saw that he was in danger…There was no threat to Officer Gross at any time. He says so.”

Hayden also testified that Oliver’s shooting into a moving car could have turned out much worse.  Prosecutor Mike Snipes asked Hayden, “It could have not only shot Jordan Edwards, but he could have shot Maximus Edwards, Von Edwards, Maxwell Edwards and the driver of the car, Vidal Allen?” Hayden responded, “I think it’s only by the grace of God that he didn’t get hit.”

Hayden also told jurors that he didn’t see why Oliver felt he had to fire his gun at all. He said, “I believe there’s enough data here to say what happened is Officer Oliver did not have a reasonable belief to use deadly force, and he should not have used deadly force.”

Update

The jury found Oliver guilty of murder. The jury acquitted Oliver of two counts of aggravated assault for shooting into a car filled with teens. The verdict is one of the few that juries have returned against a white police officer who shot and killed an unarmed black victim.

Fake

District Attorney’s Expert Witness Lied About Degree

The San Luis Obispo County District Attorney’s office has notified defense attorneys in their area that one of their expert witnesses lied on her resume about earning a college degree.

False Testimony About Background

Tracy Nix is a staff member of the San Luis Obispo District Attorney’s office who has testified in court and written in her resume that she has a bachelor’s degree from Cal Poly.

In 2014, the District Attorney’s Office presented Nix as an expert witness in a sexual abuse case. Deputy District Attorney Kelly Mandeino asked Judge Jacquelyn H. Duffy to declare Nix an expert. Manderino presented Nix’s resume and asked Nix to testify about her qualifications.

Manderino asked Nix, “Do you have a bachelor’s degree?” Nix testified, “I have.  I do.” Manderino then asked, “And is that from Cal Poly?” Nix testified, “It is.” However, Nix’s Cal Poly profile shows that Nix never graduated.

Nix also testified that she had taught an advanced psychology class at Cal Poly every quarter for five years for Connie Hanretty-Church, a lecturer in the Psychology and Child Development Department. Church wrote in an email, “Tracy was a guest speaker several years ago (2014) when I taught an upper division course entitled, “Child Abuse and Neglect. . . . She was a regular guest speaker for several years, can’t recall if it two or three years.”

“Expert” Testimony

Nix gave testimony in a case that resulted in the conviction of Ronald Cowan for sodomy, oral copulation, and lewd acts with a child. Cowan was sentenced to 65 years to life in prison. Cowan’s conviction was later reversed on appeal due to prosecutorial misconduct. The prosecutorial misconduct was unrelated to Nix’s testimony.

Perjury Investigation

District Attorney Dan Dow justified his decision not to prosecute a member of his staff for perjury by contending that Nix “believed she had a degree” because she had participated in the Cal Poly commencement ceremony. Dow make the remarkable suggestion that, “It is common at Cal Poly for people to believe they have graduated when they have not.”

Cal Poly students who have not graduated are allowed to participate in commencement ceremonies if they agree to finishing their degree within two quarters. Dow’s statement is apparently based on the belief that many Cal Poly students do not know the difference between participating in a ceremony and earning a degree.

Dow also hired an investigator to determine whether Nix had committed perjury.

Responsibility to Notify About False Testimony

Despite the fact that Dow has determined that Nix has not perjured herself, he has begun to notify defense attorneys of her false testimony. A 1959 U.S. Supreme Court case, Napue v. Illinois, requires prosecutors to correct the testimony of witnesses they know to be false. The failure to do so would deny due process of law in violation of the Fourteenth Amendment.

Dow has said that his office is actively taking steps to notify the defendant’s attorneys in cases where Nix testified as an expert witness that Nix did not receive a bachelor’s degree. Dow said, “It will be up to each defendant and their counsel to decide whether it is a significant enough issue in their individual case to warrant filing of a motion with the court.” Defense attorneys in most cases are likely to conclude that an expert’s false testimony about her credentials is a significant issue that warrants a new trial.

Gavel and Stethoscope on Reflective Table

Indiana Court Upholds Refusal to Allow Witness in Med Mal Trial

The Indiana Court of Appeals has affirmed a jury verdict in favor for a doctor who was sued for malpractice and ruled that the trial court did not err in limiting the plaintiff’s evidence.

Death of Patient

On October 21, 2009, 19-year-old Jay Shaw died from cardiac arrest during a cystoscopy and stent replacement procedure. Shaw had previously received a kidney transplant. Shaw underwent the procedure with his transplanted kidney while diagnosed with pneumonia and acute renal failure.

Medical Malpractice Lawsuit

In October 2011, Shaw’s father, James Shaw, filed a medical malpractice action against Dr. Chandra Sundaram and others with the Indiana Department of Insurance. A Medical Review Panel found in favor of Dr. Sundaram and the other defendants.

In November 2013, Shaw filed a negligence action against Sundaram on behalf of his son’s estate.

During the discovery process, Shaw’s counsel failed to provide the court with timely information about his expert witnesses. The trial court had required Shaw to file all expert disclosures no later than 120 days before trial. Prior to the September 2015 deadline, Shaw had identified two experts by name only and requested an extension of time to provide additional experts. On the date of the new deadline, Shaw provided an additional disclosure, stating that “[i]t is anticipated that Joye Carter, M.D. will testify as to cause of death[.]”

In September 2016, Shaw served a supplemental final witness list, including Dr. Allen Griggs for the first time. Dr. Sundaram’s counsel objected to the addition of Dr. Griggs and asked if Shaw intended to use Dr. Griggs at trial to inform him immediately.

In February 2017, Shaw served supplemental answers to interrogatories, including the death opinions of Dr. Griggs for the first time. Shaw moved the court to permit him to substitute Dr. Griggs for Dr. Carter because he had experienced difficulty contacting Dr. Carter after her out-of-state move.

The trial court denied Shaw’s motion and barred Dr. Griggs from testifying. The court said that it would be “highly prejudicial” to permit the substitute of an expert witness just 47 days before a two week jury trial. When Shaw requested to call Dr. Griggs as a witness at trial, the trial court denied it again.

The jury returned a verdict in favor of Dr. Sundaram.

Indiana Court of Appeals

Shaw appealed the trial court’s ruling, arguing that it had erred by denying his request to substitute Dr. Griggs for another expert witness and by denying his request to call Griggs as a rebuttal witness at trial.

The Indiana Court of Appeals ruled that the trial court had acted within its discretion to deny Shaw’s request for Griggs to be called as an expert witness. The court noted that there was a lengthy history of discovery violations and a failure to timely identify Griggs and his opinions. The court also stated, “We also note that even if we had found the decision erroneous, we would have no way of determining whether the error was reversible or not as Shaw did not make an offer of proof regarding what Dr. Griggs’s testimony would have been; consequently, we could not evaluate its probable impact on the jury.”

Wooden Mallet and flag Of New Jersey

New Jersey Adopts Daubert Standard in Accutane Appeal

The New Jersey Supreme Court has ruled that plaintiff expert testimony was properly excluded  in a mass tort case alleging that the anti-acne drug Accutane causes severe gastrointestinal problems.  In doing so, New Jersey became the most recent state to have adopted the federal government’s Daubert standard as the law governing when to admit expert testimony into evidence.

The Accutane Lawsuits

Over 2,100 New Jersey plaintiffs sued Hoffman-La Roche Inc., alleging that its prescription anti-acne drug Accutane caused them to develop severe gastrointestinal problems. Accutane was introduced to the market in the1980s and taken off the market in 2009. Hoffman-La Roche denied that Accutane is dangerous and said that it stopped selling Accutane for “business reasons.” Litigation surrounding the marketing of a dangerous drug is the kind of “business reason” that generally results in a decision to stop marketing the drug.

These lawsuits were consolidated in 2003. The plaintiffs introduced experts and studies to show that Accutane caused IBD, which becomes Crohn’s disease or ulcerative colitis. The trial court excluded the testimony of two of the plaintiffs’ experts, Dr. Asher Kornbluth and Dr. David Madigan.  Dr. Kornbluth is a board-certified gastroenterologist and professor of medicine at Mount Sinai who opined that the Bradford Hill criteria supported the conclusion that Accutane causes Crohn’s disease.  Dr. Madigan is a statistician with experience in biostatistics who opined that taking Accutane was associated with an increased risk of developing Crohn’s disease.

The Appellate Division ruled that the trial court had improperly excluded the testimony of Dr. Kornbluth and Dr. Madigan. In reversing the trial court, the panel of judges said that the trial court had been wrong to conclude that the experts had ignored epidemiological studies in favor of less reliable evidence. The panel stated that it was the judge’s duty “to weed out ‘junk science,’ not to shield jurors from hearing expert testimony that is scientifically-based but unpersuasive to the trial judge.”

Hoffman-La Roche appealed the ruling to the New Jersey Supreme Court and urged the court to adopt the Daubert standard set by the U.S. Supreme Court’s 1993 decision, Daubert v. Merrell Dow Pharmaceuticals.

The Daubert Standard

The Daubert Standard is a standard used by trial court judges to determine whether a proposed expert’s testimony is based on reasoning or methodology that is scientifically valid and can be properly applied to the facts at issue. Under the Daubert standard, a judge will consider the following factors to determine whether a methodology is valid: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.

The Supreme Court’s Ruling

A unanimous New Jersey Supreme Court said that the trial court did not abuse its discretion in excluding the plaintiffs’ experts. In doing so, the court adopted the federal Daubert standard. The Daubert standard sets a high standard for the use of experts in product liability cases.

General counsel for Hoffman-La Roche, Dr. Gottlieb Keller, said, “Today’s decision is a victory for patient health and for good science. As the American Medical Associate aptly said in this case, ‘Patients, physicians, and our system justice all suffer when courts permit outlier experts to confuse juries with disproven theories based on scientifically unsound methodologies that contradict peer-reviewed medical studies.’” On the other hand, the court’s ruling raises the question whether justice suffers when judges substitute their own view of the evidence for a view that a jury might reasonably take.

Seal of State of Florida and Gavel

Gang Expert Testifies in Lake Boyz Trial

An expert on gangs and threat assessments has testified in the trial of four men accused of being members of the Lake Boyz gang in Fort Myers, Florida.

The Arrest

The four men who are currently on trial are James Brown, 23, Kwameaine Brown, 25, Diante Davis, 21, and Eric Fletcher, 30. The men were arrested in January 2017, following a two-year investigation by the Fort Myers Police Department and the State Attorney’s Office into the activities of the Lake Boyz gang. The police allege that the Lake Boyz gang operates in the Harlem Lakes subdivision of Fort Myers.

Brown, Brown, and Davis were arrested during a roundup. Fletcher was charged while serving a 30-year prison sentence for robbery. They are the first of 23 men who are scheduled to face a jury for their alleged involvement with the Lake Boyz. When the arrests took place, Fort Myers Police Chief Derrick Diggs said that “This group has targeted the Harlem Lakes community for years… We hope this initiative will give the Harlem Lakes community some peace.”

Florida State Attorney Steve Russell charged all of the alleged Lake Boyz members under Florida’s RICO Act (Racketeer Influenced and Corrupt Organizations Act). The Florida RICO Act is the state version of a federal law that was enacted to provide for extended criminal penalties and civil causes of action for acts that were performed as part of an ongoing criminal enterprise.

State’s Expert Witnesses

The state retained Ben Pieper, a senior investigator for the Bradenton Police Department’s gang unit, to testify as an expert on gangs. Pieper is also the co-owner and instructor for a consulting group that specializes in threat and gang assessments, All is One International. Pieper provided testimony about the history of gangs and how they work. Pieper testified about the gangs of New York, the Bloods and the Crips, and the lower hybrid gangs, that have “morphed into local neighborhood groups.” How the Bloods and the Crips are relevant to a Florida motorcycle gang is unclear.

Attorneys for the defendants objected repeatedly to Pieper’s testimony. The four defense attorneys used their cross-examination to show that Pieper did not know anything about this case or the Lake Boyz. Under cross-examination, Pieper revealed that he had been paid $8,000 for his involvement in the trial, but he had not looked at or read any of the discovery in the case. Davis’ attorney, K.J. Myllynen said, “So, after $8,000-plus dollars spent by this county you have no testimony to tell us about the defendants in this case.”  Pieper replied, “Yes, sir, correct.”

One of the prosecutors, Bob Lee, explained that the state’s attorney’s office did not ask Pieper to review the case because that would be handled by the local detectives. Fort Myers police Detective Wolfgang Daniel was the lead investigator on the case and testified about the different ways that the police identified the gang members. Daniels testified that “a documented reliable informant” named James Brown, Kwameaine Brown, and Diante Davis as gang members and that Fletcher was seen in the company of other gang members, using gang signs. How hearsay testimony from a non-testifying, unidentified informant is admissible is again unclear. Daniels also explained about the police department’s use of social media, surveillance, and confidential informants to investigate the Lake Boyz.

Verdict

A jury found all four defendants Not Guilty. The verdict should be a reminder that calling an expert as a witness will backfire when the expert knows nothing about the relevant facts of the case. Lawyers should always choose their experts wisely.

Gun

New Study Challenges Traditional Procedures Following Police Shootings

A new study has challenged the traditional practice of allowing an officer time to “cool-off” before giving a statement following a police shooting.

Recovery Time Following Shooting

Traditionally, when a police officer is involved in a shooting, the officer is given a period of time to recover before providing his or her statement. The International Association of Chiefs of Police “Officer-Involved Shooting Guidelines” recommends that “Officers should have some recovery time before providing a full formal statement… An officer’s memory will often benefit from at least one sleep cycle prior to being interviewed leading to more coherent and accurate statements.”

This recommended waiting period is mandated by rules or laws in many jurisdictions. Other police departments have agreements with police unions to honor the waiting period. This waiting period is recommended by Bill Lewinski, a behavioral scientist who many police officers believe to be the definitive expert on interviewing officers after shooting. Lewinski is a professor emeritus of Law Enforcement at Minnesota State University and the founder and director of the Force Science Institute, a research, consulting, and training organization focused on human behavior in use-of-force situations.

Lewinski has studied police use-of-force issues since 1975 and has opined that “delay enhances an officer’s ability to more accurately and completely respond to questions.” Lewinski has recommended “a recovery period of at least 48 hours before being interviewed in depth.”

Of course, if delay after a stressful event enhances memory, one might expect the police to delay interrogations of the people they arrest for shootings for 48 hours to give their memories a chance to improve. That isn’t their practice, because the real benefit of delay to a shooter is the opportunity to fabricate a coherent and innocent explanation of the shooting.

New Study by Criminologists

Criminologists Geoff Alpert, Louise Porter, and Justin Ready conducted a study to test the theory that a police officer’s memory will benefit for a cooling-off period. The study involved 87 police officers who participated in a live active-shooter simulation in an abandoned building. The officers were divided into two groups: half were interviewed immediately after the shooting and the other half was interviewed two days later. The first group was also interviewed two days later, to see how their memory performed in a second interview.

The interview process consisted of 19-multiple choice questions related to the shooting. Nine questions were related to the threat and 10 questions were about nonthreatening details. Following the interviews, the researchers concluded that the officers’ cognition “did not seem to be directly affected by how recently they had experienced the scenario, and no significant improvement was evident after two days either between or within groups.”  The researchers noted that the “recall of non-threat related information was significantly better in the immediate condition compared with the delayed condition.”

The researchers concluded that early questioning can aid memory retention. They stated, “We did not find any evidence … that delay improves either recall or cognitive capability that could indicate enhanced ability to respond to questioning.”

Lewiniski criticized the study and its use of multiple-choice questions to evaluate accuracy of memory and stress levels. Lewinski suggested that a more realistic study would involve heart rate and pulse monitors and trained cognitive interviewers. Lewinski also noted that the study did not take into account that many officers have worked long hours before the time of a shooting or post-event interview, which harms cognitive abilities. Notably, Lewinski has not conducted the “improved” studies to determine whether the results would support his theory that delayed interrogation following a stressful event improves memory.

Wooden Mallet and flag Of New Jersey

NJ Will Not Allow Experts to Testify About How Children Act After Sexual Abuse

The New Jersey Supreme Court will no longer allow experts to testify about a theory that describes how some children act after sexual abuse.

The Child Sexual Abuse Accommodation Syndrome Theory

The Child Sexual Abuse Accommodation Syndrome theory, or CSAAS, was proposed by Dr. Roland Summit in 1983. Dr. Summit proposed the theory to describe how he believed that sexually abused children responded to sexual abuse. Dr. Summit suggested that there were five stages: secrecy, helplessness, entrapment and accommodation, delayed disclosure, and retraction.

At least 40 states and Washington, D.C. allow testimony on CSAAS. New Jersey courts began allowing testimony on CSAAS in 1993.

State v. J.L.G.

In the case of State v. J.L.G., the Hudson County prosecutor’s office charged a man with aggravated sexual assault of his teenage stepdaughter over an 18-month period. The stepdaughter originally denied that any abuse had happened, supposedly because her mother had threatened to kill J.L.G. “if he’s doing something.” The girl later stated that abuse had occurred and used her phone to record one of the incidents. A jury convicted J.L.G. of first-degree aggravated sexual assault; third-degree aggravated criminal sexual contact; second-degree endangering the welfare of a child; and third-degree witness tampering.

J.L.G. appealed his conviction, arguing that expert testimony on CSAAS should have been excluded from his trial. The New Jersey Supreme Court accepted the case, but sent it to the trial court for an evidentiary hearing. At the hearing, the State presented two experts who testified about the use of CSAAS in child sex abuse matters. J.L.G. presented two experts who disagreed with the use of CSAAS.

Judge Peter F. Bariso, Jr. presided over the hearing. Judge Bariso determined that the State “failed to provide sufficient evidence to prove a general acceptance of CSAAS among clinical and research psychologists” and concluded that “CSAAS did not meet the Frye standards for admissibility and should no longer be used in child sexual abuse cases.”

Following the evidentiary hearing, the New Jersey Supreme Court ruled that “Based on what is known today, it is no longer possible to conclude that CSAAS has a sufficiently reliable basis in science to be the subject of expert testimony…. We therefore hold that expert testimony about CSAAS in general, and its component behaviors other than delayed disclosure, may no longer be admitted at criminal trials.”

Response to the Ruling

J.L.G.’s attorney, Joe Russo with the Office of the Public Defender, commented that “Pseudo-science, junk science, unreliable science has no place in the courtroom.”

Dr. Lynn Taska, a psychologist who gave expert testimony on CSAAS in State v. J.L.G. stated that CSAAS testimony is an important tool that prosecutors use to remind adult juries that children may act differently than adults for no apparent reason. She said, “It’s really important that jurors understand that when they see that kind of behavior, that doesn’t mean it’s fake… I worry that kids won’t be believed if the disclosure doesn’t look like a perfect statement.”

It is, however, common knowledge that children do not act like adults. Expert testimony is not admissible to tell jurors what they already know. And while prosecutors may regard CSAAS as “important,” the justice system should never allow convictions to be based on unreliable expert evidence that increases the likelihood of a wrongful conviction.

Police

Expert Pathologist Implicates Police Officer in Shooting

An expert pathologist has implicated a police officer in the 2014 shooting death of a 22-year-old Ohio man.

The Shooting

On August 5, 2014, Officer Sean Williams and Sergeant David Darkow responded to a 911 caller who reported that a man in Walmart had a rifle. Williams testified that the 911 dispatchers told him that the man had loaded the rifle and was pointing it at people.

John Crawford III was holding a replica-style BB/pellet rifle that he had picked up from an opened box on a store shelf. Surveillance video showed Crawford walking around the store talking on the phone with the gun in hand.

When police arrived on site, they found Crawford still holding the gun. Officer Williams shot Crawford two times in his left side. Williams testified that he shot Crawford because he “was about to” point a weapon at him. Crawford died in the hospital shortly after the shooting.

In September 2017, a Greene County special grand jury cleared Officer Williams of any criminal wrongdoing in relation to the shooting.

Wrongful Death Suit

The family of John Crawford filed a wrongful death suit against the city of Beavercreek, Walmart, Beavercreek Police Chief Dennis Evers, Officer Sean Williams, and his partner David Darkow. The lawsuit claims that Walmart was negligent for leaving the pellet rifle unpackaged and on the shelf for two days before Crawford picked it up. The suit also claims that the officers did not follow their training to determine whether the information provided by 911 was accurate before opening fire.

The city of Beavercreek retained experts to support their defense. One of the city’s experts, James Scanlon, testified that the shooting of Crawford was justified because he had turned toward the officers with an item that looked like a rifle.

When Scanlon was asked whether lethal force would have been justified if Crawford had not rotated his body and gun toward Williams, he responded that the shooting would not have been justified because there would have been no imminent threat of serious bodily harm. However, the city’s other expert testified that Crawford had never turned toward the officers.

The city also retained Dr. George Nichols II, the former chief medical examiner of Kentucky. Dr. Nichols observed the surveillance video and analyzed the bullet entry wounds.  Dr. Nichols concluded that Crawford did not turn toward Officer Williams and Sergeant Darkow before being shot.

In response to Dr. Nichols’ testimony, the Crawford family filed a motion for summary judgment. Attorneys for the Crawfords, Dennis Mulvihill and Michael Wright stated, “In a remarkable and unprecedented twist, those hand-picked experts seem to have taken the side of the Crawford family in this litigation and concluded John’s shooting never should have happened… Plaintiffs are unaware of any other case involving a police shooting where the experts hired by the officers to exonerate the officers actually implicate the officers instead.”  The motion for summary judgment is currently pending before Judge Walter Rice in  U.S. District Court for the Southern District of Ohio.

Gun

Trial Delayed Because of Expert’s Padded Resumé

The trial of a man accused of killing a 17-year-old girl has been delayed because his defense attorney believes that one of his expert witnesses may have falsified his resumé.

Death of Kiera Quintana

On July 15, 2017, 17-year-old Kiera Quintana was shot to death while sitting inside of a car in a grocery store parking lot. Twenty year-old Israel Jerome Massingill was charged with first and second-degree murder, attempted first and second-degree murder, sexual assault, patronizing a prostituted child, felony menacing, third-degree assault and domestic violence in connection with the incident.

According to an affidavit, the shooting happened because Massingill owed $100 to an unnamed teenage girl. Quintana gave the girl a ride to Massingill’s home to collect the money. Quintana waited in the car while the other girl went into Massingill’s home. The teen claims that Massingill pointed a gun at her and the two had sex, first consensually and the second time forced. Massingill then agreed to be driven to an ATM to get the cash that he owed her. In the parking lot, Massingill allegedly shot Quintana in the back of the head and shot the other teen in the arm as she tried to run away. Quintana was pronounced dead at the scene.

Massingill’s Defense

Massingill pleaded not guilty to all charges and waived his right to a speedy trial. He was set for a trial date of August 27, 2018. Defense attorney Steve Laiche noted that it might be difficult for him to arrange for testimony by his witnesses, who were from out of the area, by that date. District Judge Gretchen Larson said that Laiche could seek a later trial date if he was unable to arrange for testimony by the date of the trail.

In a motion filed on July 12, defense attorney Steve Laiche asked for the trial to be postponed due to irregularities with one of the defense expert witnesses. Laiche wrote, “Counsel recently discovered that a purported expert working for Mr. Massingill may not have the training and experience as he represented to counsel… This witness conducted examinations of evidence, photographing the scene and other items. All of his work may need to be repeated.”

At a hearing on the the matter before Judge Larson, Laiche shared that the man whose resumé was in question was expected to be “central” to Massingill’s defense at trial. Mesa County District Attorney Dan Rubinstein did not object to the request to postpone the trial and Judge Larson rescheduled the trial for February 2019.

After the hearing, Rubinstein said that the allegations against the defense expert were “concerning if true.” Rubinstein said that his office is looking into whether the prosecutors have ever called this man to testify at trial because of the potential impact that it would have on those criminal cases. Rubinstein stated, “I don’t have any personal information, and my office is not in possession of any information at this point that would show that the allegations are true.”