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.

AML Acute Myeloid Leukemia

Flawed Expert Testimony Leads to Dismissal of Benzene Exposure Claims

The Tenth Circuit Court of Appeals dismissed an appeal after finding that an expert witness’ methodology was flawed and that he failed to rule out idiopathic origins.

Trial Court

Samantha Hall grew up near a ConocoPhillip’s refinery in Ponca City, Oklahoma. When Hall developed Acute Myeloid Leukemia with Inversion 16 approximately 20 years later, she claimed that it was due to her childhood exposure to the refinery’s emissions of benzene.

Hall called three expert witnesses to testify at trial court: Dr. David Mitchell, an air modeler; Dr. Steven Gore, an oncologist; and Dr. Mary Calvey, an epidemiologist. Dr. Mitchell created an air model to estimate the benzene concentrations near where Hall had lived. Dr. Gore used these estimates to calculate Hall’s cumulative exposure to benzene and opine that benzene exposure has caused Hall’s leukemia. Dr. Calvey gave a similar opinion.

ConocoPhillips moved to exclude the opinion testimony of expert witnesses, including Dr. Gore and Dr. Calvey and summary judgment on the issue of causation. The district court granted the motion.

The Appeal

Hall appealed the district court ruling. The Tenth Circuit rejected her challenge. The court found Dr. Calvey did not adequately address the issue of benzene exposure and the district court did not err in excluding her testimony. The court also found numerous flaws in Dr. Gore’s testimony.

Dr. Gore used the highest hourly average-emission level to estimate Hall’s cumulative exposure to benzene. He was instructed to use this figure by Dr. Mitchell, who created the model. The court found that Dr. Mitchell was not adequately qualified to make this determination.

The court also found that Dr. Gore made errors regarding the extent of Hall’s exposure to benzene. Dr. Gore assumed that Hall had lived near the refinery for eight years; however, Hall had lived near the refinery for only four years.

Dr. Gore also stated that he used differing methodologies. Dr. Gore initially stated that he calculated Hall’s exposure by assuming that Hall had been exposed to benzene for one hour every day. In a later statement, Dr. Gore stated that he assumed exposure for 8 hours per day, 5 days per week, 50 weeks per year. Later, Dr. Gore testified that his second statement was incorrect and he had only assumed one hour of exposure per day.

The court also found that Dr. Gore had been inconsistent about what he was calculating. He stated that he was calculating Hall’s exposure to benzene; at other times, he stated that he was calculating exposure to volatile organic compounds. These inconsistencies were important because benzene is only one of many volatile organic compounds.

The court found that Dr. Gore failed to rule out idiopathic causes, or a disease in which the cause is unknown. The parties agreed that acute myeloid leukemia is frequently caused by idiopathic sources. Hall presented expert testimony that 70-75{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of acute myeloid leukemia cases are idiopathic. Dr. Gore did not rule out the possibility of an idiopathic cause for Hall’s acute myeloid leukemia.

The court concluded that the district court did not abuse its discretion in excluding Dr. Gore and Dr. Calvey’s testimony and that, without this testimony, Hall lacked the evidence to survive summary judgment.

Fire

Fire Marshal Testifies that Fire Was Intentional

A senior deputy state fire marshal has testified in the trial of Robert Schech Sr. Evidence showed that the fire was intentionally set.

Donna Schech’s Death

Robert Schech Sr. is on trial for first-degree murder, first-degree arson, felony murder and malicious burning in connection with the death of his wife, Donna Schech. Donna Schech died on November 13, 2016 of heat and smoke-related injuries in a fire. Robert Schech is accused of setting the fires that caused Donna’s death.

Robert Schech’s Trial

The state called Senior Deputy State Fire Marshal Michael Selvage to testify as an expert in fire investigation and to determine the origin and cause of the fire. Selvage testified that fire investigations involve systematic approaches and the use of the scientific method. He said, “We don’t just run in and start doing things. It’s very specific.”

Selvage showed the court images from the scene of the fire taken by investigators and by drone video. Selvage showed that the right side of the home was almost completely consumed by the fire; the left side of the home, near the master bedroom where Donna Schech’s body was found, was more intact. Selvage pointed out that objects on the floor of the bedroom were consumed by fire and the patterns around the ceiling and walls were consistent with a fire progressing into a room. Selvage testified that the official Fire Marshal’s report listed the two origins of the fire as the dining room of the first floor and the bottom landing and steps of the basement. Selvage said that the fire’s cause was listed as incendiary, which meant that it had been deliberately set.

Defense attorney Joseph Murtha cross-examined Selvage. Murtha asked Selvage if Schech’s statements to investigators were taken into consideration when determining the origin and cause of the fire. Murtha asked what the standard was for believing Schech’s statements.

Under questioning, Selvage said that investigators returned to the scene of the fire more than one year later to gather additional data and perform due diligence. During this visit, control samples of the carpet in the living room were collected from under an entertainment system. The sample was used to compare to the carpet that was between the living room and dining room that was confirmed to contain gasoline. Tests on the control sample showed that the sample did not contain petroleum. Investigators also found a gas can under debris by the front of the carport that they believed was present on the night of the fire.

Murtha questioned how investigators could be sure that degradation and spoliation had not occurred in the 15 months since the fire. Murtha asked if there was any way to know how much accelerant was present in the areas it was located. Selvage responded that there was no way to determine the amount of accelerant.

Murtha asked Selvage whether the gasoline or gas cans could have been moved to different locations by firefighters. Selvage said that it was unlikely that this could have happened. Selvage said that the helmet camera footage showed that the gas cans would have been under at least a foot of debris before any firefighting began.

A defense expert, Craig Beyler, challenged the investigator’s findings and concluded that the fire was accidental.

Verdict

The case was tried to a judge, not a jury. Judge Thomas Stansfield concluded that a reasonable doubt existed as to guilt, and found Schech not guilty of all charges. Schech was released from custody after spending 539 days in jail.

Skinny Horse

Forensic Entomologist Testifies In Animal Cruelty Trial

A forensic entomologist has been called to testify in an aggravated animal cruelty trial in Orange County, New York.

Animal Abuse

On July 29, the Hudson Valley Society for the Prevention of Cruelty to Animals and the Town of Goshen conducted a raid on a Goshen farm in response to a complaint. They found the remains of ten horses and one severely undernourished stallion. The investigators also found ten live horses that were of normal weight, but had hooves in terrible condition. The Hudson Valley SPCA’s chief of humane law enforcement, Gene Hecht, said that it was “without a doubt” that the horses found on the property had died of starvation because there “wasn’t a drop of feed” on the property and the only hay they found was moldy and inedible.

The surviving malnourished horse, Seamus, was taken to Pony Tails Rescue in Honesdale, Pennsylvania. Lorie Brinkworth, a 25-year horse trainer and racetrack assistant veterinarian from Pony Tails Rescue described Seamus’ condition. She said, “His backbone was sticking up with protruding hip bones and rib cage clearly visible.” Brinkworth said that Seamus’ teeth were dark and discolored and his molars had sharp edges that prevented him from eating. Brinkworth said that Seamus’ breath smelled of manure and he actually ate his own manure for three weeks after arriving at the rescue.

The owner of the Goshen farm, Jeanne Ryan, is facing felony charges in connection with starving her horses to death. Prosecutors claim that Ryan kept her horses confined without enough food and water. Ryan faces 10 counts of felony aggravated animal cruelty and 10 misdemeanor cruelty. Ryan is a former NYPD officer. She faces up to one year in jail.

The Trial

Ryan’s attorney, Michael Sussman, argues that Ryan’s son, James McSwigin, had agreed to care for the horses, but had failed to do so. McSwigin acknowledged that he received multiple texts from his mother in February 2017 that told him to give the horses food and water. James McSwigin’s fiance, Erika Pohja, testified that McSwigin let his mother know that the horses were getting skinny, but Ryan told him that she could make the hay stretch and sell some of the horses.

The prosecution called Dr. Jennifer Rosati, a forensic entomologist, to testify at trial. Dr. Rosati examined the insects that were found near and on the horse carcasses. Rosati testified that she found pupal casings from three different species of blowflies in one of the barn stalls. Pupal casings are what is left behind when developed larvae become flies. Rosati took into account the life cycles of blowflies, weather conditions, seasons, and the advanced state of decay of the horses to determine that the blowflies laid their eggs between April 26, 2017 and June 10, 2017. Rosati was also able to determine that one of the horses died wearing a bridle.

Under questioning by prosecution, Rosati confirmed that the evidence that she found was consistent with the horses dying in late 2016 and being left in the barn. On cross-examination, Rosati stated that the horses could have also died as late as March 2017.

Smartphones

Expert Witnesses Announced in Apple v. Samsung Damages Trial

Apple and Samsung have filed their lists of witnesses for the upcoming damages trial in the U.S. District Court for the Northern District of California. The two companies are scheduled to go to trial on May 14 to determine how much Samsung owes Apple for infringing three design patents.

Case History

This case began when Apple claimed that Samsung copied the entire design for one of its smartphones. Samsung responded that if there was any infringement, the entire device was not copied as an “article of manufacture.” The case went to the United States Supreme Court for clarification on the term “article of manufacture.” The court sent the case back to district court. Apple is still seeking damages in the amount of the entire device’s value. Samsung seeks to show that only a portion of the design constitutes infringement.

Apple’s Experts

Apple lists Richard Howarth, a senior director of the Apple Design Team and one of the co-inventors of the patents at issue in this case. Howarth is expected to testify about Apple’s design process, the infringed design patents, and the other designs considered by Apple.

Apple intends to call its vice president of product marketing, Greg Joswiak, to the stand. Joswiak will offer testimony regarding Apple’s marketing strategy, the competitive market for smartphones, and the importance of Apple’s design patents to its products.

Apple also plans to call Susan Kare to the stand. Kare was an early designer at Apple and the recent recipient of the prestigious American Institute of Graphic Arts medal. Kare is expected to testify about icon and user interface graphics design and one of the patents at issue in the case.

Apple’s experts include Ravin Balakrishnan, a professor of computer science at the University of Toronto; Alan Bell, an expert on industrial design; Julie Davis, a consultant with expertise in accounting and damages analysis; Karan Singh, a professor of computer science at the University of Toronto; and Tony Blevins, a vice president of procurement at Apple.

Samsung’s Experts

Samsung’s list of experts includes Justin Denison, senior vice president of mobile product strategy and marketing at Samsung Electronics America. Denison is expected to testify about the repairability of Samsung’s phones and the company’s holistic design strategy. Denison may also offer testimony regarding his trips to the repair facility near Samsung’s North American headquarters where he saw phones being disassembled and reassembled.

Samsung also lists Drew Blackard, a senior director of product marketing for Samsung Electronics America. Blackard will testify about the parts of Samsung’s devices that used the infringing Apple design patents, explain how some customers disassemble and reassemble their own phones, and describe the smartphone market.

Samsung’s expert witnesses include Jinsoo Kim, vice president in its Corporate Design Center; Kyuhyun Han, an executive in Samsung’s business operations group; Dongwook Kim; Tim Sheppard, Samsung Electronics America’s vice president of supply chain logistics; Sam Lucente, an expert in the term article of manufacture; Michael Wagner, an expert to discuss Samsung’s profits and appropriate damages.

Michigan

Expert Testifies Flint Death Not Legionnaires’ Disease

An infectious disease expert has testified that a Flint-area man who died in 2015 did not die from Legionnaires’ disease.

Flint Legionnaires’ Crisis

In 2014 and 2015, a Legionnaires’ outbreak in the Flint area killed 12 people and caused at least 79 others to become ill. The State of Michigan charged its state chief medical officer Eden Wells with involuntary manslaughter in connection with the deaths. Wells is also facing charges of lying to a special police agent, misconduct in office, and obstruction of justice. The manslaughter charge carries a prison term for up to 15 years and a $7,500 fine. The obstruction charges carries a sentence of up to two years. Governor Rick Snyder kept Wells in her post despite the criminal charges against her.

Expert Testimony

At trial, Wells’ defense team called Dr. Jeffrey Band to testify as an expert witness. Dr. Band is an epidemiologist who works at Beaumont Hospital in Royal Oak, Michigan. Dr. Band reviewed the patients’ records to prepare his testimony.

Dr. Band testified extensively about the 2015 death of John Snyder. Band opined that Snyder’s death was not Legionnaires’ disease. Band said that he “absolutely” considered that Legionella could have been the cause of death, but he was ultimately able to determine that it was not the cause. Band stated that Snyder suffered from rheumatoid arthritis, which can cause a person to exhibit “false positives” for Legionella.

Dr. Band stated that Snyder’s records showed that he declined his doctor’s request to replace his pacemaker with a defibrillator, which meant that Snyder was “at risk for sudden death.” Band noted that Snyder did not have a fever, which is a symptom of Legionnaires’. He said, “He was not found to have an elevated white count. With Legionnaires’ disease, one of the features is a very high fever and it’s unremitting. It stays up there. And Mr. Snyder did not have any fever.”  Band testified that Snyder’s heart was “down to, at most, 30 percent functioning” and that he also suffered from “bilateral density in the lungs,” which caused additional problems.

On cross-examination, Special Prosecutor Todd Flood asked Band when the public should be notified about a deadly disease. Band testified that the 2014-2015 Legionnaires’ diagnoses constituted a “smoldering outbreak” with a small number of cases over a period of time. Band opined that the public did not need to be notified because it would cause a panic as the disease cannot be treated by a vaccine like other diseases. Flood noted that Band’s opinion was counter to the doctors from Wayne State University who testified that the public should have been notified of the outbreak.

Band revealed that he was compensated $400 per hour for his time, for a total of approximately $19,000. Band stated that he resented Flood’s assertion that he was being “paid” for his opinion. Flood stated that, “I’ve never implied that the Legionella situation in Genesee County was not significant.”

Baby feet

Medical Examiners Clash Over Cause of Baby’s Death

The medical examiners testifying in the aggravated manslaughter trial of Michael Marrara offered vastly different explanations for why his son died on March 26, 2012.

Death of Andrew Marrara

On March 26, 2012, Michael Marrara called 911 to report that he found his son blue and non-responsive. Andrew Marrara was pronounced dead a short time later at Englewood Hospital. The postmortem exam found blunt force trauma to the head and nerve damage to the eyes. There were also three posterior healed rib fractures. The official cause of death was ruled “closed head trauma” and categorized as a homicide.

Michael Marrara was charged with aggravated manslaughter, aggravated assault, endangering the welfare of a child and hindering in connection with Andrew’s death. He faces a maximum of 65 years in prison, with up to 46.5 years of parole ineligibility.

Expert Testimony

At trial, the state is attempting to show that Marrara killed his son because he was frustrated that he would not stop crying. The state argues that Marrara shook his son so hard that the blood vessels burst in his head.

An autopsy showed that Andrew died from blunt force trauma to the head as a victim of homicide. The autopsy was conducted by Dr. Jennifer Swartz, a forensic pathologist, and confirmed by Dr. Frederick DiCarlo and Dr. Lucy Rorke-Adams.

Dr. DiCarlo testified that the forensic tests show that the bruise on Andrew’s lip occurred on the morning of his death and that the blood on the brain was fresh. DiCarlo concluded that Andrew’s injuries were caused by “blunt force,” which “can be due to shaking” or “a punch to the forehead.”

Senior Assistant Prosecutor David V. Calviello asked Rorke-Adams if there was any evidence that the death was natural. Rorke-Adams, who is an expert on child injuries, testified that there was no way that Andrew died of natural causes.

Marrara’s defense team argued that Andrew was a sick child that died of natural causes. They pointed to his 18 visits to the doctor during his 10 weeks of life and state that the hemorrhages found on the brain were not the result of physical abuse; rather, they were due to a medical condition called cerebral venous thrombosis, or CVT, a rare form of stroke triggered by a virus.

The defense team hired acting Bergen County Medical Examiner, Dr. Zhongxue Hua, to review the autopsy. Hua claims that there is microscopic evidence of a virus in Andrew’s system. Hua identified “inclusion bodies,” the microscopic clusters of proteins that are often indicators of a virus. Rorke-Adams acknowledged that inclusion bodies were present in Andrew’s brain tissues, but said that their presence had no significance and that there was no evidence that Andrew suffered from CVT or a blood disorder.

Hua said that Andrew lacked several injuries that are common in shaken baby cases such as retinal hemorrhage, neck injury, and bruising. He said, “You do not have significant trauma, you do not have reasonable evidence of shaking, but you do have a real disease there that could be fatal.”

A gun in a car seat

Judge Allows Re-Deposition of Police Procedures Expert

A judge has ruled that the defense attorneys for Nouman Raja will be allowed to re-depose the state’s expert on police procedures.

Corey Jones’ Shooting

Nouman Raja, a former Palm Beach Gardens police officer, is on trial for manslaughter and attempted murder in connection with the 2015 shooting death of 31-year-old Corey Jones.

On October 18, 2015, Jones was stranded on the side of the road and on the phone with roadside assistance. Officer Nouman Raja approached Jones in plainclothes. Raja was wearing jeans, a T-shirt, a ball cap and driving an unmarked cargo van.

Jones died after Raja shot him three times. Raja claims that he clearly identified himself as a police officer and that he only shot Jones after he charged at him with a gun. However, an audio recording of Jones’ call with the roadside assistance operator contradicts Raja’s version of the events. Additionally, a 911 call that Raja made raised questions because Raja is heard yelling at someone to drop a gun, but medical examiner’s reports revealed that Jones was likely dead at the time that Raja made the 911 call.

Expert Witnesses

The state presented W.D. Libby as an expert on police procedures. Libby has spent 38 years in law enforcement; 16 of those years were spent as a police chief. Libby has a law degree and is experienced in overseeing police standards.

In Libby’s report, he opined that Raja acted incorrectly when he approached Jones’ broken-down SUV while he was working plainclothes on burglary surveillance. Libby stated that, by parking in front of Jones, Raja left his vehicle “in such a position that it did not protect him or Corey Jones.” Libby opined that Raja should have parked behind Jones and called for backup.

Libby also opined that Raja failed to follow proper procedures by approaching Jones. Libby cited the International Association of Chiefs of Police recommendation that plainclothes officers “present proper identification. If requested, let the driver examine your credentials so that they are satisfied that you are a law enforcement officer.”

Libby stated that Raja acted in violation of supervisor’s orders by failing to wear a tactical vest, which would have identified him as a police officer. Libby said that Raja “did not verbally announce who he was, why he was there, or indicate police authority, violating accepted police practice.”

Raja’s attorney, Scott Richardson, challenged the consistency of Libby’s opinion. He said, “We felt there was an inconsistency, a discrepancy between what the state’s expert witness had testified to and what was said later in another deposition.” Richardson also questioned whether the state had been withholding information about Libby’s opinion on whether use of force was justified in this case.

Judge Samantha Schosberg Feuer decided that defense attorneys will be allowed to re-depose Libby. Richardson will be allowed to ask Libby about his opinion on whether use of force was justified in this case, when he formed that opinion, and when he disclosed that opinion to the state. Libby previously opined that, “I do not believe the forensic evidence supports [Raja’s] version of events.”

Raja’s attorneys plan to file a separate motion to have Libby’s testimony excluded entirely.

Money

DOJ Expert Testifies AT&T-Time Warner Merger Costly for Consumers

An expert witness for the Department of Justice has testified that the AT&T-Time Warner merger will be costly for consumers.

The government filed a lawsuit against AT&T and Time Warner this past November, arguing that the proposed merger is illegal under antitrust law because it would raise pay TV costs to consumers. AT&T has argued that the merger does not mean that prices would necessarily go up and that it would have no reason to keep content from its competitors because it would make less money in ad revenue. The trial began in mid-March in U.S. District Court in Washington, before Judge Richard Leon.

Expert Testimony

The Justice Department called Carl Shapiro to testify on its behalf. Shapiro is a professor at University at California Berkeley and an economic expert. In the past, Shapiro has held positions at the White House and the Antitrust Division. Shapiro worked on the Comcast-NBC Universal merger when he was the chief economist for the Justice Department.

Shapiro testified that the merger of AT&T and Time Warner will cost consumers an extra $436 million per year by 2017 and and extra $571 million by 2021. Shapiro said, “Consumers will be hurt. . . . They will be hurt because competitors to DirecTV will face higher costs.”

Shapiro testified that the $85.4 billion merger between the two companies will harm consumers, which is the standard that the government uses to determine if a transaction raises antitrust issues. Shapiro testified that the merger would “substantially lessen” competition.

Shapiro testified that AT&T risked raising costs to consumers by: raising the price of content for other cable companies; benefiting in customer additions from rivals that could not afford Time Warner content; and coordinating with Comcast to restrict access to Time Warner and NBC content to hurt emerging over-the-top (OTT) services, a media distribution practice that allows a streaming content provider to sell media services directly to a consumer over the internet.

Shapiro explained that AT&T would be able to restrict its rivals from using HBO as a promotional tool. HBO is used across the industry as a way for cable and satellite services to enroll new customers and retain their existing ones. Shapiro said that AT&T would have added bargaining leverage because of the threat of a programming blackout. Shapiro explained that blackouts are important because, “Even though they don’t happen very much, that’s the key to leverage.”

Cross-Examination

Attorney for AT&T-Time Warner, Daniel Petrocelli, cross-examined Shapiro. Petrocelli attempted to show that Shapiro’s model did not take into account real-world situations and the offer for Time Warner’s Turner networks to engage in “baseball-style” arbitration in carriage disputes with AT&T’s rivals. Petrocelli also questioned Shapiro over the type of data that he included in his study versus what he chose to leave out.

Shapiro argued that his methodology was in line with standards for merger with reviews and that his methods were in some ways a conservative approach. Shapiro said that his methods focused on the longer-term market structure in the event of a merger.

Bill Cosby

Cosby Defense Expert Admits He Used Google for Expert Report

An expert witness for the Cosby defense team has admitted that he used Google to obtain data for his expert report, that his medical credentials had lapsed, and that his curriculum vitae contained misleading information.

Bill Cosby, 80, was retried for drugging and sexually assaulting Andrea Constand in 2004. He is charged with three counts of aggravated indecent assault. Cosby’s first trial ended in a mistrial following almost 60 hours of jury deliberations.

Expert Toxicologists

Costrand claims that Cosby gave her drugs that incapacitated her to the point where he could molest her without her consent. Constand described becoming disoriented and the loss of the use of her arms and legs.

The prosecution called Dr. Timothy P. Rohrig, a forensic toxicologist from Wichita, Kansas. Rohrig testified that the effects that Constand described were consistent with the effects of Benadryl, which is the over-the-counter antihistamine that Cosby says he gave Constand. Rohrig said, “Benadryl will do that, plus a hangover effect. . . . All the symptoms and the timing are consistent with the ingestion of diphenhydramine.” Rohrig testified that it takes about 10 to 15 minutes for the sedative effects of Benadryl to take effect.

Cosby’s defense team presented Dr. Harry Milman as an expert in toxicology. Milman is a pharmacologist from Rockville, Maryland. Milman has previously worked for the American Cancer Institute and the U.S. Environmental Protection Agency. Milman testified that Costrand could not have experienced the symptoms that she described by taking the amount of Benadryl that Cosby claims to have given Constand. Milman testified that it takes about an hour to experience the side effects of Benadryl.

Milman said, “The symptoms that she described after taking a therapeutic dose would not have occurred within 10 to 15 minutes.” Milman testified that the symptoms that Constand described were “severe” and would have led regulators to prevent them from being sold over the counter. Milman said, “I saw no evidence that Ms. Constand took any drug, Benadryl or otherwise.” He pointed to the fact that there was “absolutely no objective evidence” to support Constand’s claims.

Milman testified that only 1 to 10 percent of people experience side effects from the ingestion of diphenhydramine, the active ingredient in Benadryl. On cross-examination, assistant district attorney Stewart Ryan questioned Milman’s credentials and the way that he obtained data for his report. Ryan showed the court a peer-reviewed medical compendium that stated that about 50 percent of the people who ingest diphenhydramine experience side effects and asked where Milman obtained the 1 to 10 percent figure.  Milman admitted that he used Google to obtain the information.

Assistant district attorney Ryan also questioned Milman on his credentials. Specifically, Ryan asked Milman whether a scholarly article that he listed on his curriculum vitae was actually a reply to a letter to the editor. Milman acknowledged that it was. Milman also acknowledged that he had let his medical license lapse after retiring. When questioned on whether he held any active licenses, he replied, “I hold a driver’s license.”

Breaking News

Bill Cosby found guilty of sexual assault (April 26, 2018) New York Times.

Photo Credit: By The World Affairs Council of Philadelphia [CC BY 2.0], via Wikimedia Commons

Bill Cosby

Forensic Psychiatrist Testifies in Cosby Retrial

A forensic psychiatrist has offered testimony in the retrial of Bill Cosby. Cosby, 80, is accused of drugging and sexually assaulting Andrea Constand in 2004. In Cosby’s first trial, the jury was unable to reach a verdict following almost 60 hours of deliberations. The result was a mistrial.

Constand claims that Cosby gave her pills for stress and that she fell asleep. When she awoke, she found him sexually attacking her, but she was unable to speak or move. Constand didn’t report the incident to police until a year later.

The Retrial

In Cosby’s retrial, the majority of jurors who were empaneled said that they had some knowledge of the past case. Some jurors had no knowledge. None of the jurors were specifically asked if they were aware of the mistrial.

Barbara Ziv, a forensic psychiatrist, was called as an expert witness. Ziv said that it was not unusual for sexual assault victims to continue to have contact with the person who attacked them, especially if the attacker was in a position of power over them. She testified, “I’m not sure I can think of one victim of sexual assault who did not feel humiliated, does not blame herself to some extent, and is not deeply ashamed about it. . . . That’s one reason why so many do not go to police, because when you do you lose control over your narrative and your whole life can take a tailspin.” Ziv said that, “Individuals find themselves feeling frozen, not knowing what to do and feeling frightened.”

Ziv explained “rape myths,”  and the contradictory behavior that may occur after a sexual assault.  Ziv said, “Most of what people believe, the most common knowledge, about sexual assault is wrong.” Ziv explained why sexual assault victims may not remember the details of their assaults and why it may take them months or years before coming forward with their accusations. Ziv told jurors that victims will often not immediately escape if their case involves acquaintances. She testified, “We blame victims for not being the kind of victim we think they should be. . . . If a football player gets hit hard, and gets back up again, we applaud them. But if a victim of sexual assault gets up again and moves on with their life, we say, ‘Then it didn’t happen.’”

Ziv testified that if an intoxicant is involved, it is likely that a survivor will not have a clear or chronological recollection of the events.  She said, “If drugs are involved, it increases the victim’s sense of responsibility, and impacts their memory of the incident.”

Defense attorney Kathleen Bliss cross-examined Dr. Ziv.  Bliss questioned Ziv about false sexual assault allegations such as those made in the Duke lacrosse case and the Central Park Five. Bliss also questioned Ziv about the likelihood of accusers keeping in touch with their attackers. Bliss questioned Ziv about an article in Sky News about sex crimes in which Ziv had been quoted. Bliss said, “The article reported you commenting on the jury’s inability to reach a verdict and convict Mr. Cosby.” Prosecutor Kristen Feden objected to this statement.

Photo Credit: By The World Affairs Council of Philadelphia [CC BY 2.0], via Wikimedia Commons