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.

Police

Lethal Force Expert Testifies Police Acted Reasonably in Shooting

An expert on police training and lethal force has testified that two police officers acted reasonably during a 2013 shooting of a mentally ill man in Charlotte, North Carolina.

The Shooting

According to testimony, in January 2013, 55-year-old Spencer Mims III was uncharacteristically upset about the loss of his favorite football team in the NFL playoffs. His father, Spencer Mims Jr., 82, left the home to give him time to cool off. While he was out, Mims Jr. saw a police officer and asked him for help. When the police arrived at the house, Mims was sitting on the porch holding a box-cutter to his neck. Officer Michael Whitlock used a Taser to attempt to subdue Mims, which caused him to yell in pain and come towards Officer Jeremy Donaldson with the box-cutter. Officer Donaldson told Mims to drop the knife, but he did not. Officer Donaldson shot Mims three times, which resulted in his death.

The Mecklenburg County District Attorney cleared Officers Donaldson and Whitlock of any criminal wrongdoing in relation to the shooting.

The Lawsuit

The Mims family filed a wrongful death suit against the city of Charlotte, alleging that the use of deadly force against a person having a mental breakdown was excessive and unnecessary. The lawsuit claims that Mims never threatened the officers and that Mims was turning away from the officer when shots were fired.

Ken Wallentine, special agent for the Utah attorney general and expert on police training and lethal force, testified as an expert witness for the police. Wallentine testified that the officers acted appropriately during their confrontation with Mims.  Wallentine opined that Officers Jeremy Donaldson and Michael Whitlock’s actions were “what we expect from well-trained officers.” He testified that neither officer had been overly aggressive with Mims and said that they could not have stayed away from Mims because they were dealing with an unstable man carrying a deadly weapon.

Attorney for the Mims family, Luke Largess, questioned Wallentine’s understanding of the evidence.  Largess picked apart Wallentine’s grasp of the facts and sequence of events and pointed out that Wallentine had been paid $7,000 to testify. Largess noted that Wallentine rarely testified on behalf of a civilian against the police and claimed that Wallentine did not seem to know the best police practices in dealing with a mentally ill person in a crisis.

During Wallentine’s cross-examination, Largess pointed out that officers are taught not to escalate tensions by acting aggressively. He asked Wallentine whether giving Mims repeated orders to drop the box cutter and aiming a Taser at Mims could be considered aggressive. Wallentine acknowledged that those actions could be considered aggressive. Largess also questioned Wallentine as to whether backing away from Mims into a corner with no means of escape would be a breach of training. Wallentine said, “I agree it’s not the best.” Largess explained that backing themselves into a corner would leave the officer with a choice to kill someone or protect themselves.

Verdict

The jury agreed with the Mims family and awarded them damages of $100,000. A juror explained that the relatively small wrongful death award represented the jury’s belief that both Mims and the police shared responsibility for Mims’ death.

Georgia

Gun Expert Testifies in McIver Murder Trial

A GBI weapons expert offered testimony on gun dynamics in the murder trial of Tex McIver, the prominent Atlanta attorney who is charged with the murder of his wife Diane.

The Shooting

In September 2016, Tex and Diane McIver were returning home from their country ranch to their Atlanta condo with their friend Dani Jo Carter behind the wheel. Carter ran into traffic, so she exited the highway on Edgewood Avenue. Tex told the women that this was a bad area and asked for his gun from the console.

A few blocks later, the SUV was stopped at a red light when Carter remembers hearing a “boom.” She said that she looked around and saw Tex putting the gun down and saying that he had fallen asleep. Tex claims that the gun went off while it was in his lap while he was sleeping. The bullet shot Diane through her left adrenal gland and kidney, blood vessels leading to her spleen, and through her pancreas and stomach. Diane passed away at the hospital in surgery.

Expert Testimony

Tex McIver was charged with murder, felony murder, aggravated assault with a deadly weapon, possession of a firearm, and influencing a witness. At trial, Georgia Bureau of Investigation (GBI) investigator Zachary Weitzel was called as an expert witness for prosecution. Weitzel demonstrated the mechanics of firing the .38 Smith and Wesson revolver that killed Diane McIver. Holding the gun in his hand, he showed the jury, “I would have to pull the trigger all the way, so about to there is as far as I can stage it without the hammer falling. . . . But, it would have to travel this same distance to fire.”

Weitzel explained that the pressure that it takes to cause the gun to fire depends on whether the gun was in single or double action. Weitzel measures the weight it takes to fire a firearm in pressure. If the gun is in double action, it would take 12 pounds of pressure to fire. However, if the gun is in single action, it only takes 2 pounds of pressure to fire. Weitzel said, “With double action you see that the trigger is set further back so from there I would have to pull the trigger back all the way. . . . If a gun is in single action it’s primed its ready to be fired. The only way a gun can be fired is if the trigger is pulled long enough to fire it.”

Under questioning, Weitzel confirmed that there is no test to determine whether a trigger was pulled on purpose and there is no way to know whether the hammer on the revolver was cocked on the night of the incident. Defense attorney Bruce Harvey asked Weitzel whether the gun could have gone off from keys in a pocket. Weitzel responded that, “Any force that exerts that kind of pressure can pull the trigger.” Weitzel also stated that the gun could have been fired unintentionally if the person who was holding it was startled.

Update

After four days of deliberation, the jury found McIver guilty of felony murder and four lesser charges. The jury found McIver not guilty of malice murder. The felony murder conviction carries a mandatory life sentence.

Murder, Bloody knife

Prosecutor Seeks to Discredit Experts in Nanny Trial

The lead prosecutor in the murder trial of Yoselyn Ortega sought to discredit two expert witnesses who testified on behalf of the nanny who is accused of killing two children who were in her care.

The Crime

Yoselyn Ortega, 55, is accused of killing Lulu and Leo Krim, ages six and two years old on October 25, 2012. Ortega had been in the Krim family’s employ for two years prior to the date when she took the two children into a bathroom and slaughtered them with knives.

The Trial

Ortega was charged with two counts of first-degree murder. The issue at trial is whether Ortega was too mentally ill at the time of the killings to be held responsible for the crime. In New York, there is a high bar for the insanity defense. To prevail, Ortega’s attorneys must show that she did not understand the consequences of her actions or know right from wrong at the time of the crime. Ortega’s attorneys retained two experts to testify on her behalf, Dr. Karen Rosenbaum and Dr. Phillip Resnick.

Dr. Karen Rosenbaum is a psychiatrist who evaluated Ortega based on Ortega, her family, friends, and neighbors. Dr. Rosenbaum’s report depicted Ortega as a religious woman who suffered from episodes of depression and auditory and visual hallucinations. Dr. Rosenbaum testified that, “She wasn’t in her normal conscious state, where she could control her behavior. . . . She was in a dissociative state and a psychotic state and wasn’t aware of her actions.” Dr. Rosenbaum opined that, at the time of the killings, “auditory hallucinations won over her and she went into an altered state of consciousness.”

Dr. Phillip Resnick, forensic psychologist, opined that Ortega was telling the truth when she said she did not remember stabbing the two children.  Resnick testified that Ortega’s amnesia was a symptom of a dissociative episode.  He said, “Ortega was psychotic. I mean she was out of touch with reality.”  Resnick rejected the prosecutors’ suggestion that Ortega killed the children to spite their mother. He emphasized that those who knew Ortega “talked about how much she loved the children so it makes no sense at all how a woman, even if she were angry with Mrs. Krim, would kill two children she loved. . . . She could have attacked Mrs. Krim. She could have killed Mrs. Krim in anger. But to kill two children she loved out of revenge simply does not add up or make sense.”

Cross-Examination

Lead prosecutor Stuart Silberg attempted to discredit both experts. He pointed out that Ortega had no documented report of mental illness prior to the killings and that her family only began to report her hallucinations after the crime. Silberg picked apart Dr. Rosenbaum’s analysis of Ortega, searching for inconsistencies and minor misstatements. Silberg questioned why Dr. Rosenbaum had not interviewed a doorman or a building superintendent who had spoken with Ortega immediately before and after the killings took place.

If the jury finds Ortega was insane at the time of the crime, she will be committed to a psychiatric facility. If she is convicted of the crime, she faces life in prison.

Update

Rejecting the testimony of the defense experts, the jury found Ortega guilty of two counts of first-degree murder and two counts of second-degree murder.

Vote Here

ACLU Lawyer Questions Testimony of Voting Fraud Expert

An attorney for the ACLU has questioned the credibility and qualifications of the voting fraud expert called to testify in the suit against Kansas Secretary of State Kris Kobach. Kobach is being sued by several Kansas residents who were not allowed to vote because of a Kansas law that requires proof of citizenship. According to the ACLU, “Between 2013-2016, the law blocked more than 17,000 Kansans from registering to vote through the DMV – and a total of more than 35,000 Kansans from registering to vote through any means.”

Voting Fraud Expert

Hans von Spakovsky was called as a voting fraud expert. He testified that noncitizen voter registration is a substantial issue and in support of a Kansas law that requires voters to provide proof of citizenship. Von Spakovsky pointed to cases in Kansas and hundreds of allegations of noncitizens on the voter rolls that date back to the 1980s.

Hans von Spakovsky is a senior fellow at the Heritage Foundation and has written a book on voter fraud called Who’s Counting?: How Fraudsters and Bureaucrats Put Your Vote at Risk. Von Spakovsky opined that using other methods to identify non-citizens would be insufficient because they would be unable to identify illegal immigrants. Von Spakovsky warned that the possibility of being prosecuted for voter fraud does not deter voting by non-citizens because the United States essentially uses “an honor system” for its elections.

ACLU Challenge

The ACLU challenged von Spakovsky on his qualifications and credibility as an expert. Von Spakovsky’s resume includes serving along with the Kansas secretary of state on the commission on voter fraud that President Donald Trump set up, but has subsequently been disbanded. Von Spakovsky also worked for the U.S. Department of Justice during President George W. Bush’s first term.

The Director of the ACLU’s voting rights project, Dale Ho, asked von Spakovsky whether the research for his book, Who’s Counting?: How Fraudsters and Bureaucrats Put Your Vote at Risk had been peer-reviewed. Von Spakovsky responded that he is not an academic, so he does not use the peer-review process. Ho questioned von Spakovsky about his expert report, his understanding of voter fraud in Kansas, and his knowledge of specific instances of alleged fraud. Under Ho’s questioning, von Spakovsky admitted that his understanding of voter fraud in Kansas came from a spreadsheet that had been prepared by Kobach’s office.

Ho also questioned von Spakovsky about and email that he wrote in early 2017 that expressed his concern with President Trump’s decision to make the voter fraud commission bipartisan. Von Spakovsky wrote, “There isn’t a single Democratic official that will do anything other than obstruct any investigation of voter fraud.” Ho played an audio recording of Von Spakovsky denying sending the email or being concerned with its bipartisan nature. Von Spakovsky responded that the attorney was mischaracterizing his answers. He explained that the reporters were asking whether he had sent an email to Jeff Sessions and that he had truthfully responded no. “I was answering truthfully. I was simply asked in essence if I sent an email to Jeff Sessions. The answer was no. It was no at the time. It is no today. . . . The lawyer that I had sent it to, who as I said didn’t work for the federal government then, doesn’t work for the federal government now, unbeknownst to me, he sent it to the attorney general.”

Heroin

Forensic Pathologist Opines Death Caused By Heroin Not Physical Trauma

A prominent forensic pathologist has testified that the death of Jeffrey Brooks was caused by heroin use, not physical trauma.

The Assault

In 2013, Nick Masley invited Jeffrey Brooks and his cousin Kayla Ellis to a residence. Authorities claim that Masley lured Brooks there to beat him up for getting his cousin addicted to heroin. When Brooks was later leaving the residence, Masley punched him in the face and knocked him unconscious. The police were called to the scene. Brooks’ right eye was swollen and nose was bleeding. He was taken to University Hospital Elyria Medical Center and later transferred to MetroHealth Medical Center in Cleveland. Brooks died two days after the assault. The Cuyahoga County Medical Examiner’s office performed an autopsy and ruled Brooks’ death a homicide caused by blunt force trauma to the head and spinal cord.

The Trial

Masley was indicted with murder and felonious assault. At trial, defense attorney Kenneth Lieux called only one witness to testify of Masley’s behalf. Lieux retained prominent forensic pathologist and medical examiner Dr. Werner Spitz. Dr. Spitz has worked as a forensic pathologist in Maryland, the District of Columbia, Michigan, and Germany and as a medical examiner in multiple counties. Dr. Spitz has served as an expert witness in every state in the country. Dr. Spitz is the author of almost 100 scientific papers and a textbook, Spitz and Fisher’s Medicolegal Investigation of Death: Guidelines for the Application of Pathology to Crime Investigation, now in its fourth edition.

Dr. Spitz testified that he disagreed with the conclusions of the medical examiner. He said, “The cause of death of Mr. Brooks was brain swelling. . . . This was brought on to major degree by the injection of heroin into (his) system. . . . It is my opinion, that with the findings of the autopsy, the fall was a significantly less severe impact in causing brain swelling than the heroin.” Spitz also opined that the fluid found in Brooks’ lungs was caused by heroin use. Brooks’ lungs weighed three times the amount of normal healthy lungs.

On cross-examination, the assistant county prosecutor Donna Freeman asked Dr. Spitz whether the fracture to Brooks’ face and the bruising inside his scalp that had been caused by punches could have caused the brain swelling. Spitz responded that the impact from the punches was not severe enough to cause death. He also referred to the injuries as superficial.

The Verdict

A jury found Masley guilty of involuntary manslaughter, which is a third-degree felony, and two counts of misdemeanor assault. Lieux indicated that he was satisfied with the verdict. “I was pleased with the verdict. I think what I felt the evidence showed is that Nick’s act of punching him was just an assault, a simple assault. . . . He did not act with intent to cause serious physical harm, and the verdict bears that out. Unfortunately, by the verdict, the jury felt the death was one of the approximate results of the assault so that’s why they found him guilty of involuntary manslaughter. I certainly respect the verdict of the jury in that regard.”

Empty Hall

Expert Testifies That Coolers Made Conditions Worse in Nursing Home

An air-conditioning engineer has testified that the portable air conditioning units in a Florida nursing home where twelve elderly patients died of overheating made the conditions worse.

The Deaths

The Rehabilitation Center at Hollywood Hills is a 150-patient facility that lost its main air conditioning system during Hurricane Irma. The system was knocked out on September 10; by September 13, patients began dying and the facility was evacuated. Twelve patients died as the result of overheating. The deaths were ruled homicides. Authorities say that the temperature in the home reached dangerous levels, despite the nine portable air conditioners that were deployed after the main system was knocked out. Florida law requires nursing homes to maintain a temperature of 81 degrees or less.

The Lawsuit

Following the deaths, Governor Rick Scott ordered the state Agency for Health Care Administration (AHCA) to prevent the home from taking on new residents. AHCA also stopped Medicaid patients and eventually pulled the Rehabilitation Center’s license, alleging that the Rehabilitation Center presented a threat to public health, safety, or welfare and that “deficient practices exist presently and will more likely than not continue to exist if the agency does not act promptly.” The Rehabilitation Center closed its facility and laid off 245 employees.

The nursing home filed a lawsuit against the state, seeking injunctions against AHCA’s orders. The Rehabilitation Center claimed, “With the stroke of a pen, AHCA (the Agency for Health Care Administration) has effectively shut down Hollywood Hills as a nursing home provider in Broward County. . . . These illegal and improper administrative orders took effect immediately and without any opportunity for the facility to defend itself against unfounded allegations.”

The state hired William Crawford, an air-conditioning engineer, as an expert witness. Crawford offered testimony in the form of a deposition before the Rehabilitation Center’s attorney, Geoff Smith. Crawford testified that the portable air conditioners used by the home were insufficient and that they only produced about 10 percent of the cooling capacity of the home’s central air conditioner that was knocked out by the storm.

Crawford testified that the air conditioners were not properly vented. Air conditioners function by taking hot air from an enclosed space and moving it outside. The Rehabilitation Center’s first floor portable air conditioners vented the hot air to the ceiling, which meant that the first floor’s hot air went to the second floor and back to the first floor. Crawford testified that the air temperature between the first-floor ceiling and second floor floor ranged somewhere between 95 degrees and 110 degrees.

Crawford said that the improper ventilation of the air conditioners caused the temperatures within the building to increase. He said, “I can say with certainty it was above 81” in most of the facility. He conceded that it was possible that it was cooler within the 9 feet of the five portable units that were on the first floor; however, he asserted that “There was no way they maintained 81 degrees on the second floor.”

Ship

Judge Allows Expert Testimony in Carnival Cruise Lines Negligence Case

A federal judge has ruled that two expert witnesses for the plaintiff will be allowed to testify in a negligence lawsuit against Carnival Cruise Lines and its partners.

The Incident

In 2015, David Carideo was on an electronic music themed “Groove Cruise” run by Carnival Cruise Lines and Whet Travel Inc. During this cruise, alcohol was sold both on the ship and  during shore excursions. Carideo alleges that he was attacked by two of his fellow passengers. Carideo claims that his attackers threw him to the ground and beat him, resulting in a fractured skull and permanent injury to his head. A Carnival security officer who was patrolling the deck above heard the altercation and responded to the scene, but by the time he arrived, Carideo had already been beaten.

Expert Witnesses

Carideo filed a negligence suit against Carnival and its partners in the U.S. District Court in the Southern District of Florida. Carideo claims that the attack was fueled by alcohol. He alleges that Carnival and Whet Travel benefited financially from selling alcohol in profuse quantities and that security measures were insufficient to ensure passenger safety. Carideo claims that the Groove Cruise was “three days of partying, billed as an electronic music dance party” where passengers “became intoxicated to the point of vomiting around the ship and reaching points of inebriation, such that they became physically ill.”

Carideo retained Dr. Ross Klein and Howard Wood to testify as expert witnesses. Dr. Klein is sociologist who the plaintiff retained to testify as an expert on the cruise industry and plans to offer testimony on the foreseeability of crime on a cruise ship. Wood is a security and counterterrorism expert who will testify about Carnival’s security measures and its ability to prevent crime onboard its ships.

Carnival filed a Daubert motion, challenging the testimony of both proposed experts. In the motion, Carnival argued that Dr. Klein and Mr. Wood’s opinions were not supported by a reliable methodology and that they were based on lack of applicable expertise. Carnival noted that Dr. Klein did not have any academic training in law enforcement, criminology, security, criminal investigations, or tourism. Carnival challenged Mr. Wood’s opinions because his report did not explain how or why his experience led to an acceptable and reliable methodology and because his report was full of advocacy.

Carnival essentially asked the court to rule whether a person can testify as an expert witness if he or she has no formal academic training or actual work experience in the field, but instead obtained knowledge through research and review.

U.S. Magistrate Judge Jonathan Goodman ruled that Dr. Klein and Mr. Wood will be allowed to testify and stated that any doubts that the defendants have about the expert’s credibility are best addressed during cross-examination. In his order, Judge Goodman stressed that “a less-than-perfect expert opinion may still be admitted, even if it contains gaps” and noted that the court “must be careful not to conflate questions of admissibility of expert testimony with the weight appropriately to be accorded such testimony by the fact finder.”

Bullets

Ballistics Expert Testifies in Trial About Teen’s Shooting

A ballistics expert has offered testimony in the federal lawsuit over the fatal shooting of 17-year-old Justus Howell that happened in 2015.

The Shooting

In April 2015, Zion police officer Eric Hill responded to reports of a fight between two men and gunshots. According to authorities, Justus Howell had been trying to steal a semi-automatic pistol from a man from whom he had originally arranged to purchase it. A surveillance video shows the two men fighting, Howell pointing the gun at the other man, the man pushing the gun away, and the gun discharging.

Officer Eric Hill arrived on the scene. Hill claims that after a short chase and telling Howell to stop, he saw a flash of silver in Howell’s hand that he determined to be a gun. Hill says that he feared for his life and the lives of the other officers, so he shot Justus Howell two times.

In May 2015, Lake County State’s Attorney Michael Nerheim found that Officer Hill’s use of force was justified.

Trial Testimony

Howell’s grandmother sued Hill and the city of Zion for damages, claiming that Officer Hill acted recklessly and with excessive force when he shot her grandson. The attorney for the plaintiff argued that Hill covered up his actions after the shooting and that he “doctored” the scene. The plaintiffs argue that the gun found on Howell was in his pocket and later placed on the grass.

Attorneys for the plaintiff retained Ronald Scott as an expert witness. Scott is a forensic ballistics expert who has served 25 years with the Massachusetts State Police. Scott reviewed all of the documents related to the shooting, the surveillance video footage, and Hill’s personnel files. Scott testified that he “consider[ed] [Hill] to be an above-average trained police officer.”

Scott testified that the forensic evidence and the surveillance video show that Howell was nearly doubled over when he was shot by Hill. This would be inconsistent with Hill’s statement that he fired at Howell after he had turned a gun on him.

Scott also testified that he was able to determine Hill’s approximate position during the shooting by analyzing the shell casings that were found at the scene and Howell’s autopsy. Scott testified that Hill shot Howell and the bullets entered his body diagonally from the left to the right.

Scott also noted that the surveillance video did not show a reflection of a gun or light-colored object in Howell’s hand. The gun that was found at the scene had a silver finish.

Defense attorney Thomas DiCianni questioned Scott’s credibility and testimony. DiCianni cited to a deposition whether lawyers hired him to “bust a hole” in Hill’s testimony. Scott replied that his responsibility is to the evidence. DiCianni cited a forensics handbook on police shootings that said that shell casings were unreliable evidence. DiCianni also pointed out the the gun found at the scene had a matte finish, so would not have flashed in the video footage.

Verdict

The jury evidently rejected the expert testimony. It returned a verdict in favor of the defense, finding that the evidence failed to establish that Hill used excessive force.

Monsanto

Monsanto Judge Rules Expert Opinions Are “Shaky”

The federal judge presiding over the high-profile Monsanto Roundup lawsuit has determined that the experts testifying against it have “shaky” opinions.

The Lawsuit

Monsanto is being sued by multiple parties who claim that the active ingredient in its herbicide Roundup, glyphosate, has caused non-Hodgkins lymphoma. The lawsuits were consolidated into a multidistrict case in San Francisco presided over by U.S. District Judge Vince Chhabria. This case includes over 700 farmers, landscapers, and gardeners who claim that their non-Hodgkin lymphoma was caused by exposure to glyphosate.

Glyphosate/Roundup is the most widely used agrichemical. It was introduced by Monsanto in 1974 and its use exploded in 1996 when Monsanto introduced “Roundup-ready” seeds that were engineered to resist glyphosate.

Expert Testimony

Judge Chhabria held a causation hearing and heard testimony from numerous experts including toxicologists, statisticians and an oncologist. Judge Chhabria was particularly interested in testimony from the epidemiologists, who study how human contract diseases. Judge Chhabria said, “I do have a difficult time understanding how an epidemiologist in the face of all the evidence that we saw and heard last week” can conclude that glyphosate “is in fact causing” non-Hodgkin lymphoma in humans. “The evidence that glyphosate is currently causing NHL in human beings” at current exposure levels is “pretty sparse.”

All but one of the plaintiffs’ experts relied upon a 2015 study conducted by the World Health Organization’s International Agency for Research on Cancer (IARC). The IARC study concluded that glyphosate is a probable carcinogen. Judge Chhabria said that the IARC study alone was not enough to argue that the glyphosate is more likely than not to be the cause of plaintiffs’ cancer. Other studies, including a 2017 review by the U.S. Environmental Protection Agency, have concluded that glyphosate is not a carcinogen. The attorney for the plaintiffs, Brent Wisner, argued that the judge should not reject experts because they relied on the IARC report and that he should dissect and consider the “subset of opinions” contained within their reports.

One of the plaintiffs’ experts conducted her own independent analysis. UCLA epidemiologist Dr. Beate Ritz testified that she reviewed over a dozen cases and was able to conclude “to a reasonable degree of scientific certainty” that glyphosate causes cancer in humans. Judge Chhabria called Dr. Ritz’s conclusion “dubious,” but questioned  whether it was “outside the range of a reasonable scientific conclusion that epidemiologists can draw?”

Attorney for Monsanto, Eric Lasker, argued that Dr. Ritz’s testimony should be rejected because her findings were based on “unadjusted odds ratios” and “confounded data.” Attorney for the plaintiffs, Aimee Wagstaff, said that their experts took confounding into consideration and that each expert considered both unadjusted and adjusted odds ratios.

Judge Chhabria concluded that epidemiology is “loosey-goosey” and a “highly subjective field.” However; Judge Chhabria did indicate that Dr. Ritz may be allowed to testify in front of a jury. He said, “Maybe Dr. Ritz, despite some of the problems with her testimony, is operating within the mainstream of the field. . . , Maybe it’s up to the jury to buy her presentation.”

Montana

DNA Expert Plays Key Role in Exoneration Hearing

A DNA expert has offered critical testimony in the exoneration hearing of Freddie Joe Lawrence and Paul Kenneth Jenkins.

The Crime

Freddie Joe Lawrence and Paul Kenneth Jenkins are serving life sentences after being convicted of killing Donna Meagher in 1994. Meagher was killed when she was closing up a family-owned bar and casino in Montana City.

New Evidence

The Montana Innocence Project got involved with the case post-conviction and some of the evidence from the crime scene was sent away for DNA testing. The DNA tests linked another man, David Wayne Nelson, to the crime. Nelson is currently serving a life sentence after pleading guilty to killing two people in Deer Lodge in October 2015. DNA tests on the rope found close to where Meagher was killed showed both Meagher’s blood and Nelson’s DNA.

Separately, the state reopened its investigation into Meagher’s murder after David Nelson’s former sister-in-law and nephew told authorities that Nelson had confessed to Meagher’s murder in 1998. Nelson denies these claims and having anything to do with Meagher’s death.

Exoneration Hearing

To overturn their convictions, Jenkins and Nelson will have to show that there is a reasonable probability that the outcome of the trial could have been different if a new piece of evidence was introduced.

Dr. Greg Hampikian, Ph.D. of Boise State University testified as an expert for the defense. Dr. Hampikian testified that there is no DNA evidence linking Jenkins or Lawrence to the crime and that a key piece of evidence matched another male. Hampikian used a technique called probabilistic genotyping to determine that there is a one-in-700 billion chance that the DNA testing excluding Lawrence’s from the site is wrong. In Jenkins’ case, the chance is one in hundreds of thousands. Hampikian explained that anything more than a thousand is very strong evidence that the DNA does not match. Hampikian testified that Nelson’s DNA was almost a direct match, “It’s about as strong of a match as I have ever seen.” He said that the probability of the DNA not being Nelson’s is 1-in 10 septillion.

Nelson was subpoenaed to testify at the hearing, but exercised his right to remain silent.

Montana state court Judge Kathy Seeley presided over the hearing and did not make her ruling from the bench. She stated that she would take the parties’ arguments under advisement.

Reaction

Meagher’s family has stated that reliving the trauma from the crime is painful. Meagher’s daughter Michelle has said that she felt that the state had substantial evidence against both men. She noted that, “Independently, 24 people decided they were guilty. . . . Our family is re-living the trauma from the crime and this is unexplainable to someone who has not gone through something of this magnitude.” Larry Mansch, legal director for the Montana Innocence Project, has said that the family’s pain is understandable and that, “this is a terrible thing that happened to Donna. . . . We are trying to figure out who the perpetrator was.”