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.

Virginia State Insignia

Virginia Supreme Court Considers Changes to Discovery Rules

The Virginia Supreme Court will consider proposed changes to its discovery rules that dictate what evidence must be shared by the defense and prosecution before a criminal trial. It is now seeking comments to the proposed changes.

Virginia State Bar Criminal Discovery Reform Task Force

Virginia State Bar created a task force to propose changes to its current discovery rules. The 13-member Virginia State Bar Criminal Discovery Reform Task Force is made up of prosecutors, defense attorneys, law professors and judges who spent eight months working on the proposed rules. The task force was led by Court of Appeals Judge Robert J. Humphreys.

The purpose of the new rules is to improve pretrial discovery and to ensure that defendants who enter plea deals to so with full knowledge of the evidence against them. Many prosecutors in Virginia already share this information with the defense, but it is not required as it is in many other states.

Reactions to Proposed Changes

Doug Ramseur, a Richmond-area defense lawyer who is a member of the task force said that, “I think most people are shocked to know that you could be charged with a felony and you don’t have a right to know before trial who the witnesses against you will be, or what the police investigation against you has shown.”

Shannon Taylor, a Henrico County commonwealth’s attorney stated, ”As a member of the task force, I am 100 percent in support of this, recognizing from the prosecutors’ association there may be elected prosecutors who are not in support of this. . . . This is a situation where both sides have relinquished some type of position that was normally held, and we are all very hopeful.”  Taylor explained that the task force hopes that the rule changes will facilitate communication between the parties and protect victims and witnesses.

Steven D. Benjamin, a Richmond Lawyer and past president of the National Association of Criminal Defense Lawyers has commented, “Any improvement to Virginia’s strict discovery rules is to be commended and is in the public’s best interest.”  Benjamin stated that the proposed new rules would require parties to exchange witness lists and experts reports and allow the defense to read police reports. He also stated that the rules “largely restate existing law and clarify mechanisms for protecting privacy and safety. As a whole, they represent an accommodation of competing interests and concerns, and may be the consensus the (high) court has sought in order to make improvement.”

Fairfax County Commonwealth’s Attorney Ray Morrogh has expressed concern that the new language may hamper his office’s ability to protect victims and witnesses. Others express concern that innocent defendants are too easily convicted when they have no opportunity to investigate the evidence that allegedly proves their guilt. Sending innocent people to prison never protects victims or witnesses.

This is the third attempt in five years to amend Virginia’s discovery rules. In 2013, the Virginia State Bar’s Indigent Defense Task Force attempted to amend the discovery rules. In 2015, a 29-member Special Committee on Criminal Discovery Rules produced a 60-page report that the Virginia Supreme Court declined to adopt. The Virginia Supreme Court is accepting comments on the proposed rules until June 1.

Bible, Female Hands

Child Welfare Expert Testifies in Trial Against Mormon Church

A child welfare expert has testified in the civil trial against The Church of Jesus Christ of Latter-day Saints for the alleged cover-up of sexual abuse of minors.

The Lawsuit

Six families filed a civil suit against The Church of Jesus Christ of Latter-day Saints alleging that the church covered up the sexual abuse of minors by Michael Jensen, the son of a church official. In 2013, Jensen was sentenced to 35 to 75 years in prison for the sexual abuse of two minors. The lawsuit alleged that The Church of Jesus Christ of Latter-day Saints and its leaders covered up the abuse, enabling Jensen to commit additional acts of abuse.

Child Welfare Expert Trial Testimony

Dr. Kathleen Faller was called to testify in the case. Dr. Faller is the principal investigator on the University of Michigan site of National Child Welfare Workforce Institute. She is involved in research, clinical work, teaching, training, and writing in the area of child welfare. Dr. Faller testified that she and her department focused on whether the children were sexually abused and what type of harm they have suffered.

Dr. Faller conducted interviews with the minors involved in this case and collected information through parents, other interviews, treatment records, medical testimony in Michael Jensen’s criminal case. Dr. Faller opined that all four children were victimized.

Dr. Faller explained the standardized measures that are used to determine the impact of abuse on the child. In this case, the tools used were the Child Behavior Checklist, the Trauma Symptom Checklist for Children, the Trauma-Symptom Checklist for Young Children, and the Child Sexual Abuse Inventory.

Out of the assessments used in this case, the Trauma Symptom Checklist for Children is the only one filled out by the child; the others are filled out by the child’s caregivers. The Trauma Symptom Checklist for Children is given to children who are 8 years old and older and contains questions related to anxiety, depression, posttraumatic stress, sexual concerns, dissociation, and anger. Test scores above the 70s indicate that a child is in the clinical or not-normal range.

The defense questioned Dr. Faller about the possibility that some of the parents may have aimed for higher scores so that their children appeared more hurt. Dr. Faller acknowledged that possibility and testified that, in one family, “I would say that (the father) over endorsed things.” She said that she discredited some of the results because some of the ratings were statistically unlikely.

Dr. Faller also testified about Michael Jensen’s sexual behavior risk assessment. Dr. Faller said that Michael Jensen’s assessment included cognitive distortions such as thinking that children are sexually curious and believing that the children wanted the abuse to happen because they did not report it. Dr. Faller testified that a juvenile offender is likely to reoffend as an adult if they were an early adolescent at the time of their original offense, if the acts were frequent, if the individual failed to take responsibility, and if the acts were planned. Dr. Faller testified that Michael Jensen was 13 at his first offense, that the acts occurred within one month, and that she believed that he did plan the abuse with one child.

Brain scan, CT Scan

Neuropsychologist Testifies That Killer is a Psychopath

A neuropsychologist has testified that the man who was convicted of abducting, raping and murdering an 8-year-old girl from Florida is a psychopath.

The Crime

In June 2013, Donald James Smith met Rayne Perrywinkle and her three daughters in a Dollar General store. He told Perrywinkle that his wife had an extra $100 Walmart gift card and he would buy them clothes if they accompanied him to the store. At some point on that trip, Smith left the store with Perrywinkle’s 8-year-old daughter, Cherish.

Cherish’s half-naked body was found in a nearby creek the next day. Smith’s DNA was all over her body. The medical examiner would testify that Cherish sustained severe injury from being raped and strangled.

It took the jury just 14 minutes to convict Smith of murder, kidnapping, and sexual battery.

Expert Testimony

In the penalty phase of the trial, both defense and prosecution presented expert witnesses to opine on Smith’s mental state to determine whether Smith should face the death penalty or life in prison.

Dr. Joseph Sesta, an expert witness in neuropsychology and the Sexually Violent Predator Program in Florida opined that Smith is a psychopath, “meaning he’s at a high threshold of both committing bad acts and being a bad person, which manifests through personality traits like a lack of empathy, remorse, and compassion.”  Dr. Sesta said, “So, Mr. Smith, he’s stepping on the gas. He has his left hemisphere works fine. But the brakes don’t work well, and therefore, things like anger, aggression, sexuality . . . in order for us to all live together in harmony, we have to be able to put the brakes on behaviors that aren’t socially appropriate. Mr. Smith has deficits in the parts of his brain that help him to brake or control behavior.”

Dr. Sesta spent over five hours with Smith, during which he conducted brain scans. Sesta says that those brain scans validated his assessment of Smith. While other experts have testified that Smith is mentally ill, Sesta believes that Smith was faking symptoms of mental disorders. Sesta pointed out that Smith said that he had previously tried to obtain a copy of the Diagnostic and Statistical Manual of Mental Disorders. Sesta said, “If you were trying to fake a disorder, this would be your Bible to guide you to what symptoms you should produce.”

Other Expert Testimony

Dr. Geoff Coline, an expert in forensic neurology testified that Donald Smith had abnormally small and large portions of his brain and that it was clinically probable that Smith was suffering from chronic traumatic encephalopathy (CTE), or brain trauma.

Dr. Heather Holmes, a forensic psychologist who specializes in sex offender evaluation and treatment within an incarceration setting, diagnosed Smith with personality disorders including major depressive disorder, severe cocaine use disorder, antisocial personality, borderline personality and pedophilic disorders.

Dr. Daniel Buffington, a clinical pharmacologist, testified that the combination of Smith’s chronic substance abuse, psychiatric disorders, and psychiatric medication would have impaired Smith “to the degree that his normal judgement, skills, and ability were profoundly diminished.”

Sentence

Jurors deliberated for only two hours before deciding that the death penalty should be imposed on Smith. The jury verdict authorizes a death sentence, but the judge has final authority to determine whether Smith should be sentence to execution. The judge will make that decision after hearing final evidence in mitigation of the sentence.

Lab Analysts May Be Required to Testify in Person in Criminal Trials

Experts Battle Over Validity of DUI Blood Tests

Experts contest the validity of retrograde extrapolation in the DUI trial of Cody Austin Shirah.

The Crash

In September 2016, a group of Ohio softball players were in Bay County, Florida for the World Sports League World Softball Championships. As they were on their way back to their hotel from their tournament, Cody Austin Shirah ran a stop sign and crashed into their minivan. Two of the men died at the scene; two other died as a result of their injuries from the crash.

Shirah was charged with four counts of negligent manslaughter involving a motor vehicle, or DUI manslaughter, and driving without a license.

The Blood Tests

Carol Seagle, a toxicology analyst with the Florida Department of Law Enforcement, testified that a sample of Shirah’s blood was taken about 3 hours and 45 minutes after the crash.  Shirah’s blood had a blood alcohol content of 0.078 percent. The legal limit is 0.08. Seagle testified that Shirah’s blood alcohol content was likely between 0.09 percent and 0.14 percent at the time of the crash.

Barry Funk, a forensic toxicologist for the defense contested the methods that Seagle used to reach her conclusion. Funk explained that the process of retrograde extrapolation involves too many factors to be trusted, including medical history, injuries, and medicines that have been taken. Funk said, “All things have to be taken into consideration with retrograde extrapolation. . . . You can’t count them out as factors. It makes a difference to conclude what alcohol content would’ve been at the time of the incident.”

Despite Funk’s attempt to question the validity of the use of retrograde extrapolation, the prosecutor was able to elicit Funk’s admission that the blood drawn at the hospital one hour after the crash amounted to 0.125 percent alcohol content. Additionally, Shirah’s girlfriend, who had been a passenger in his truck had a blood alcohol content of 0.145 percent. Since the girlfriend was not driving, however, the relevance of that evidence is unclear. There were also beer cans found around the area where Shirah’s truck had overturned.

Retrograde Extrapolation Explained

The use of retrograde extrapolation to determine blood alcohol content is based on the assumption that people eliminate alcohol at a fixed rate of between 0.01 grams and 0.02 grams per deciliter of blood per hour. For a retrograde extrapolation calculation to be accurate, a person must metabolize alcohol at the normal rate and the person must be in the postabsorption phase, which typically occurs 15 to 90 minutes after a person’s last drink.

However, each person’s absorption rate varies. Many factors, including the type and amount of food eaten, the type of alcohol consumed, and the length of time over which the drinking occurred will affect the rate of absorption. Because retrograde extrapolation is uncertain, blood alcohol test results are only presumed to be valid if the blood sample is drawn within three hours after the test subject was driving. The longer the delay in obtaining a test sample, the more speculative those conclusions are likely to be. As a general rule, expert evidence is required to establish a blood alcohol content when more than three hours have lapsed since driving ended.

Police Brutality

Use of Force Expert Testifies in Police Shooting Trial

A use of force expert has offered testimony for the prosecution in the trial of a Brown Deer police officer who is charged with aggravated battery in connection with a 2016 shooting.

The Shooting

In March 2016, a Milwaukee County Transit System bus driver flagged down two police officers to report Manuel Burnley Jr. for disorderly conduct. Surveillance video captured the scene. The video showed the officers taking Burnley off the bus and all three falling to the ground. During the struggle, Burnley was flipped onto his stomach as the officers attempted to handcuff him. Officer Devon Kraemer then fired a shot into his back.

Burnley suffered rib fractures and lost part of a lung. He was hospitalized for 12 days as a result of the shooting.

Trial Testimony

Officer Kraemer, 28, was charged with aggravated battery, intending bodily harm. In her defense, she claims that she feared for her and her partner’s safety, notwithstanding that the two officers were in control of the unarmed man. If convicted, Kraemer could face up to 10 years in prison.

District Attorney John Chisholm called Emanuel Kapelsohn, an expert on use of force and a Harvard-trained lawyer, to testify for the prosecution. Kapelsohn said that he has been an expert witness and consultant for thousands of cases, but that this is the first time that he is taking the prosecutors’ side against an officer who was charged for an on-duty shooting.

Kapelsohn testified that Officer Kraemer was not justified in shooting Burnley. He said that while Kraemer may have believed that Burnley was reaching for a gun, that belief was objectively unreasonable and fell short of the standards of using deadly force.

Kapelsohn said that the fact that Burnley was not violent was a factor in his decision. “He doesn’t punch an officer, he doesn’t kick an officer but he’s resisting, not fighting.” Kapelsohn said that Burnley resisting arrest and his size would elevate the threat level, but not enough to justify the shooting. “That would reasonably make the officer concerned, but you can’t assume he’s grabbing your partner’s gun.” At the time of the incident Officer Kraemer, who is 5’5” tall, weighed about 140 pounds, while the 5’10” Burnley weighted about 370 pounds.

Kapelsohn opined that the officer did not act as if they thought he was armed. He noted that the fact that Kraemer re-holstered her gun after the first shot was an error if she truly believed him to be a threat. “That’s contrary to police training and contrary to what any officer would logically do because if she thought he was reaching for a concealed weapon, he’s still moving around, you wouldn’t holster it right away.”  He also noted that the officers allowed Burnley to reach into his pocket, with a phone in his hand, while they spoke to him on the bus.

Kraemer’s attorney, Christopher MacGillis, cross-examined Kapelsohn.  MacGillis questioned Kapelsohn’s understanding of Wisconsin police training standards since his office was based in Pennsylvania. MacGillis also questioned Kapelsohn about whether the weight disparity between Kraemer and Burnley could have affected her perception of Burney as a threat to her safety.

Kraemer is currently on administrative suspension from the Brown Deer Police Department.

Hung Jury

Jurors are always reluctant to convict a police officer, no matter how strong the evidence appears to be. Jurors deliberated for three days before advising the judge that they were unable to reach a unanimous decision. The judge declared a mistrial based on the hung jury.

Confession

False Confessions Expert Testifies in Homicide Trial

False confessions expert Alan Hirsch offered testimony for the defense in the murder trial of Bobby Griffin Jr.

The Crime

On October 14, 2013, Nathaniel Bradley was fatally shot as he stood outside his car in New Haven, Connecticut. Bobby Griffin Jr. was charged with felony murder, murder, attempted first-degree robbery, and conspiracy to commit first-degree robbery in connection with Bradley’s death.

While Griffin initially admitted to murdering Bradley, he later claimed that he was coerced into confessing by the police who interrogated him. Griffin now claims that he was present for the crime but another man was the shooter.

The Trial

Griffin’s attorneys argued that the jury should hear about false confessions because the police detectives coerced Griffin into falsely confessing that he shot Nathaniel Bradley.

Griffin’s attorney presented Williams College professor Alan Hirsch to testify as a false confessions expert. Prosecutors Sean McGuinness and John P. Doyle Jr. objected to Hirsch’s testimony. McGuinness claimed that Hirsch was unqualified because he is an academic and does not have experience participating in interrogations. McGuinness also argued that the testimony would be prejudicial.

Superior Court Judge Elpedio N. Vitale held a hearing to determine whether Hirsch should be allowed to testify. Hirsch cited statistics from the Innocence Project, an organization that works to exonerate the wrongly convicted. Hirsch testified that “They found that hundreds of people had been wrongly convicted and about one-quarter of them had confessed.”

Hirsch described the Reid technique, which is a commonly used police interrogation tactic. Hirsch explained that the nine-step process uses confrontation and minimalization to break suspects down. Utilizing this technique, “The suspect is told confession is the only way out and it’s not a particularly bad way out.” Hirsch said that the problem with the Reid technique is that it breaks down the innocent as well as the guilty.

Griffin’s attorneys argued that during Griffin’s 3-4 hour interrogation, the detectives lied to him about the evidence against him and told him he needed to confess. Detective David Zaweski acknowledged that he and Detective Nicole Natale lied about the evidence they had.

Griffin acknowledged that he read and signed a Miranda form advising him that he had the right to remain silent and to have an attorney present. He also admitted that the detectives told him that he could stop the questioning at any time. However, Griffin also said that he felt pressure from the detectives. “I thought I had no choice. They kept telling me I did it. I kept saying I had nothing to do with the crime.”

Judge Vitale decided that Hirsch would be allowed to testify, but only generally. Hirsch would be allowed to testify about the techniques of confrontation and minimalization, but would not be allowed to specifically discuss the interrogation of Griffin and his confession.

During his testimony in front of the jury, Hirsch explained that aggressive police questioning sometimes causes a suspect to confess to a crime they did not commit.

Verdict

Jurors found Griffin guilty of murder. He will be sentenced in May.

Murder

Forensic Experts Offer Key Testimony in Murder Trial

Forensic experts offered key testimony in the murder trial of David Eisenhauer.  Eisenhauer, 20, of Columbia, Maryland was charged with first-degree murder, abduction, and concealing a body in connection with the homicide of 13-year-old Nicole Madison Lovell. His co-defendant, Natalie Marie Keepers, who is accused of helping to plan the murder and conceal the body, is being tried at a later date.

Eisenhauer and Keepers were freshmen at Virginia Tech at the time of Lovell’s murder. After Lovell’s disappearance, her father found her usernames and passwords written on her wall. FBI computer forensic experts traced Lovell’s account information and found that she had been communicating with David Eisenhauer over the anonymous chat app, Kik. When Eisenhauer was questioned in connection with Lovell’s disappearance, he admitted to meeting Lovell online and exchanging messages with her. He told investigators that he thought that she was 16 or 17 and when they met in person on January 27 he saw “someone who is maybe 11 years old climb out of a window” and thought “uh-uh, not for me” and that he left without her. Three days after Lovell’s disappearance, her body was found in nearby Surry County, North Carolina.

Expert Witnesses

At trial, prosecutors presented numerous expert witnesses to strengthen their case against Eisenhauer.

Deena Jones of the Blacksburg Police Department testified on behalf of the prosecution. Jones served as an intelligence analyst at the time of the homicide. Jones was charged with extracting the GPS data from the Garmin device that was in Eisenhauer’s possession to show his route over January 26, 2016 and January 27, 2016. Jones testified that Eisenhauer’s GPS showed that he traveled from the Virginia Tech campus to Target and Walmart, to Blacksburg, to Craig Creek Road, and then back to campus.

Nicole Harold, forensic science supervisor for the Virginia Forensic Department, testified that she compared DNA from possible pieces of evidence to compare them with DNA from Eisenhauer, Keepers and Lovell. Harold testified that it was overwhelmingly likely that Lovell’s blood was found in a clearing in the wood and that there was high probability that it was Lovell’s blood in Eisenhauer’s car and on the blanket, stick, underpants, boot, and shovel that were taken from Keepers. Harold also testified that evidence showed that cleaning fluid had likely been used on some of the items, which would explain why some DNA evidence was not able to be conducted. Harold testified that the DNA that was found on Lovell’s fingernail clippings taken during her autopsy belonged to Eisenhauer.

Cory Barote, a forensic scientist specializing in latent prints at the Virginia Department of Forensics Science, testified that he analyzed fingerprint and palm cards in conjunction with latent prints taken from the evidence. Barote testified that a container of disinfecting wipes found in Eisenhauer’s trunk contained Eisenhauer’s prints and that a shovel and wipes found in Eisenhauer’s backseat and a plastic Walmart bag found in a Virginia Tech dumpster had prints belonging to Keepers.

On the day following expert testimony, Eisenhauer switched his pleas to no contest and was convicted of Lovell’s murder. Eisenhauer faces a maximum sentence of life plus 15 years in prison.

Utah

Utah Supreme Court Reverses Conviction Based Upon Unreliable Expert Testimony

The Utah Supreme Court has reversed the conviction of Komasquin Lopez after finding that a suicidologist’s theory failed to meet an adequate threshold to prove its reliability.

Conviction

In December 2013, Shannon Lopez picked her husband, Komasquin Lopez up from work. Both had consumed methamphetamine. Komasquin testified that the two argued over Shannon’s methamphetamine use and the couple’s financial problems as they drove home. During the drive, Sharon suffered a fatal gunshot wound to the head.

Komasquin was the only other occupant of the vehicle. He maintained that he was innocent and claimed that his wife took her own life. A handgun and shell casing were found near the driver’s seat. Investigators determined that the fatal wound came from a gun that was pressed against the left side of Shannon’s head. Shannon was right-handed.

Komasquin was charged with his wife’s murder. At trial, the State presented testimony from Dr. Craig Bryan, a clinical psychologist who specializes in the treatment of suicide patients. Dr. Bryan used the Fluid Vulnerability Theory of Suicide (FVTS) to assess the likelihood that Shannon took her own life. FVTS assesses two different types of risk: baseline, which is affected by predispositions, and acute, which involves the emotional, physiological, behavioral and cognitive risk of the active episode. FVTS is the “most commonly used theory and approach to developing treatment and understanding suicide risks.” Dr. Bryan typically used interviews and tests to identify FVTS risk levels. Dr. Bryan applied FVTS to opine that Shannon Lopez’s behavior prior to her death was inconsistent with suicide.

Komasquin was convicted and sentenced to 16 years to life in prison.

Appeal

Komasquin appealed his conviction, arguing that the State did not lay a sufficient foundation to demonstrate that its expert’s theory could produce a reliable assessment of Shannon’s suicide risk. The defense also argued that the district court erred by admitting evidence that he had pointed a gun at Shannon in the past and threatened to kill her.

The Utah Supreme Court agreed. It found that the State had not adequately laid the foundation as to whether FVTS was generally accepted as a means for assessing suicide risk in someone who had already passed away. It noted that the record showed that Dr. Bryan had never addressed whether FVTS had ever been used to address suicide risk in someone who was deceased. Accordingly, the Court found that the district court erred by admitting Dr. Bryan’s testimony under Utah Rule of Evidence 702. Justice John Pearce, writing for the court, noted that the conflicting evidence in case made it likely that Dr. Bryan’s opinion likely swayed the jury.

The Court also found that the district court had abused its discretion by admitting Komasquin’s prior acts of pointing a gun at and threatening Shannon because the past events were not sufficiently similar or frequent to be admitted.

Komasquin Lopez’s conviction was reversed and his case was remanded to 3rd District Court, where he may face a new trial.

California Law Legal System Concept

California Appellate Court Hikes Burden for FEHA Expert Fees

In Arave v. Merrill Lynch, a California Appellate Court recently ruled that employers who win Fair Employment and Housing Act (FEHA) cases can be reimbursed for the fees and costs only if they can prove that the plaintiff’s case was frivolous.

The Dispute

Brent Arave was a managing director with Merrill Lynch and a member of the Church of Jesus Christ of Latter-day Saints. In September 2010, an anonymous employee satisfaction survey was conducted by a third party on behalf of Merrill Lynch. The survey led to Arave’s resignation and him suing his former employer under the California Fair Employment and Housing Act, alleging discrimination, harassment, and retaliation based upon his membership in the Church of Jesus Christ of Latter-day Saints.

A jury returned a verdict in favor of defendants and awarded them fees and costs, including $83,642.68 in costs and expert witness fees. Arave appealed the ruling.

The Appeal

Arave argued numerous claims on appeal, including that the trial court erred by awarding defendants costs and expert witness fees on his FEHA claims, despite finding that the claims were nonfrivolous.

The trial court awarded the defendants $54,545.18 in ordinary legal costs. In Williams v. Chino Valley Independent Fire District, the California Supreme Court held that a prevailing defendant cannot recover ordinary costs on FEHA claims “unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.”  The appellate panel found that, because the trial court held that the FEHA claims were not objectively without foundation, the defendants were not entitled to recover the ordinary costs it incurred in defending Arave’s FEHA claims.

The trial court awarded defendants $29,097.50 in postsettlement offer expert witness fees under Code of Civil Procedure section 998. The appellate panel reversed the award of expert fees, ruling that the FEHA reimbursement provision found in Section 12965(b) trumped the more general fee-shifting provisions in section 998(c) of the Code of Civil Procedure and section 12965(b) does not authorize expert fee awards to defendants absent a showing of frivolity. Because the trial court determined that the claims were not frivolous, the appellate panel held that it erred in awarding expert witness fees to defendants.

The court wrote, “Prospective plaintiffs with meritorious claims trying to decide whether to attempt to vindicate their rights would not be able to predict their exposure. Any attorney advising a prospective plaintiff would have to acknowledge they may lose even a very strong suit and end up being compelled to pay defendant tens of thousands of dollars in expert witness fees. Indeed, if we accepted defendants’ position, our decision would be an object lesson for all future FEHA plaintiffs on the risks of bringing colorable discrimination claims.”

The decision by the Fourth Appellate District creates a split of authority among the California appellate courts on the issue of FEHA expert witness fees.

Florida Supreme Court

Judge Allows Requests for Hiring Expert Witnesses Under Seal

A judge in Orange County, Florida has decided to allow accused murderer Markeith Loyd’s defense attorneys’ motion to hire expert witnesses under seal.

The Crimes

Markeith Loyd is accused of killing his ex-girlfriend Sade Dixon and their unborn child in a December 13, 2016 shooting. He is also charged with first-degree murder and attempted first-degree murder of a law enforcement officer in connection with the January 2017 shooting death of Orlando police Lieutenant Debra Clayton, who was shot while trying to capture him. Loyd is charged with a total of 10 crimes and faces the death penalty.

The Motion

Attorney Roger Weeden filed a motion on Loyd’s behalf requesting that an alternate judge be appointed to rule on requests for expert witnesses and to keep the details of those hirings under seal. The motion did not specify which experts they wanted to bring, but generally they are  mental health professionals. Weeden argued that having an alternate judge rule on expert witnesses would prevent bias and help keep key defense strategies from becoming public knowledge. Weeden said that this system has worked well in other Orange County murder cases that have been tried by other judges.

Weeden argued that members of the public, the media, and prosecutors should not be allowed to know who was evaluating Loyd unless the defense decided to put those experts on the stand. Weeden claimed that, because he was an appointed attorney paid using public funds, he was at a disadvantage compared with private attorneys or attorneys with the Public Defender’s office. If Loyd was able to afford his own experts or if he was using attorneys from the Public Defender’s office, he would be able to hire expert witnesses without court approval. Weeden argued that this autonomy means that they are able to plan their cases and expert witness strategy without creating public records. Weeden argued that his client should not be disadvantaged because “we do not have a wealth-based criminal justice system.”

State Attorney Brad King argued that if Loyd’s defense team was allowed to hire its expert witnesses in private, it may lead to defense attorneys having the ability to shop around for witnesses, hiring them continually until they find one who is willing to give favorable testimony. He stated, “There are certain defense attorneys who do exactly what you’re talking about and go through three, four or five experts looking for a favorable report.”

Ninth Circuit Chief Judge Frederick Lauten decided that Loyd’s defense team would be allowed to file requests for hiring expert witnesses under seal and have them ruled on privately. The hiring and payment decisions will be subject to a sealed review by Florida’s Justice Administrative Commission. Judge Lauten also ruled that the individual decisions and their details would be unsealed upon testimony of each witness or at the conclusion of the trial for those witnesses who are not called to testify because the public should have the right to know how much taxpayer money was spent to prosecute and defend Loyd.