A forensic neuropsychiatrist provided testimony to make a case for a sudden passion defense in the murder trial of Pete Garcia.

The Crime

Pete Garcia was on trial for the February 2016 murder of Orestes “West” Garza.  Garza, 51, was leaving church with his girlfriend, Judy Garcia, when Pete Garcia walked up to him and shot him three times in the back and once in the genitals.  Garza was taken to the hospital where he later died.

Judy and Pete Garcia had been married for 32 years prior to their divorce in October 2015.  Judy told police that Pete had been threatening her and Garza since her divorce and that Pete had assaulted Garza on a prior occasion.  Investigators discovered that Garcia had learned that Garza and his wife had been having an affair behind his back for 25 years.

Pete Garcia confessed the murder to his friend and his son, who then notified the police.  Garcia turned himself in to the Levelland police.

The Trial

Prosecutors argued that Garcia killed Garza in an act of premeditated murder.  Garcia’s defense was that the murder was a crime of sudden passion.  If a jury found that the crime was one of sudden passion, it would reduce the punishment range from five years to life in prison to 20 years in prison.

Prosecutors called Nicholas Weaver, the general manager of the Cabela’s where Garcia purchased a handgun about two weeks prior to the shooting.  Weaver testified that Garcia applied for a gun on January 15, 2016 and returned five days later to pick up a Browning .380 semi-automatic pistol.  Garcia passed a FBI background check, which cleared him to purchase the weapon.

Defense presented Dr. John Fabian, a forensic neuropsychiatrist, to make the case for sudden passion.  Dr. Fabian described Garcia as a low-functioning person with below-average intelligence.  He testified that Garcia showed extreme impairment with abstract reasoning and making problem-solving strategies.

Dr. Fabian diagnosed Garcia with obsessive compulsive behavior, anxiety, and depression.  He testified that Garcia displayed dependent personality disorder and Garcia’s Catholic religious beliefs prevented his acceptance of the end of his marriage.

Dr. Fabian testified that “She was, at least in his perception, the center of his life…His whole life seemed to center around Judy.”  Dr. Fabian said that Garcia’s mental impairment combined with the stress of his divorce and learning about his wife’s affair with Garza led to his loss of control on the day of the shooting.  “This was building to a snap … a crescendo of a blowup. … So I think there was a train wreck going to happen, potentially suicide or homicide.”

Garcia testified that he did not go to the church with the intent of killing Garza.  Garcia said that he just wanted to see his ex-wife, but when he saw her with Garza, “It was just like something came over me and I just lost it.”

The Verdict

A Lubbock County jury found Garcia guilty of Garza’s murder and did not find a sudden passion defense.  Garcia was sentenced to 35 years in prison and will have to serve at least half of that sentence before he becomes eligible for parole.

Police experts have reviewed bodycam footage from an August 8 incident and have opined that the taser use was “horrible judgment” and a possible department policy violation.

The Incident

On August 8, Angela Brown called police to her apartment and requested help getting her sons to leave her apartment.  Officers Johnson and Sullivan responded to the call.  Body camera and cell phone footage document the incident.

Brown let the officers into her home and showed them into her living room where her sons were sitting.  She said, “Here they at — disrespecting me and everything.”  When the officers asked what was going on, Richard Coleman, 24, said “We just chillin,’” and got up saying he wanted to explain the situation and calm down his half-brother, James Crawley, 25.

The officers told Coleman to sit down and he refused, while Brown yelled that the police should arrest her two sons.  Crawley got up and moved aggressively toward his mother and Coleman got between the two of them.  The police officers warned the men that they were about to get tased.

Officer Sullivan told Crawley to come to him, but he refused.  Sullivan shot Crawley with his taser.  Coleman pulled the barbs and wires out of his brother and videoed the scene on his cell phone.  Johnson tased Coleman.

Johnson and Sullivan physically subdued Coleman and Crawley jumped into the scuffle.  A third officer arrived and Coleman and Crawley are eventually handcuffed.

Coleman pleaded guilty to resisting arrest.  Crawley pleaded guilty to fourth degree felony assault.  Following the incident, one of the brothers filed a complaint with the Citizen Complaint Authority.

Expert Analysis

A professor who is a retired police officer and an expert witness consultant who is also a retired police officer reviewed the video footage for the Cincinnati Enquirer.  Both experts said that the officers clearly did not follow the city police department’s de-escalation policy when confronting the two men.  The police experts opined that proper procedure would have been stating that the men were under arrest.  Cincinnati Police Department policy states that tasers are only to be deployed against those who “are actively resisting arrest.”

Gary A. Rini, a former police officer and commander who now works as a police consultant and expert witness, said, “Anyone with any common sense can see the officers never give the kids a chance … and they immediately turned to a weapon that is one step below using lethal force…The brothers were not looking to fight. And after that first question, at no point did the officers try and calm things down or even try to find out what was going on.”

David Thomas, a 20-year police veteran who is now an associate forensics professor at Florida Gulf Coast University, said, “This is a domestic dispute, no different than if a husband and wife were going at it…At a certain point, they could have just put them in handcuffs and walked them into separate rooms…The magic words should have been ‘you are under arrest’ and at no point do either of the officers say that.”

Dr. Forest Tennant, physician, former mayor, and expert witness, has been served with a search warrant by the DEA in conjunction with an ongoing investigation.

DEA Investigation

The DEA served Tennant with a warrant that also named United Pharmacy of Los Angeles and its pharmacist owner. The DEA alleges that United and physicians who fill prescriptions at United constitute a drug trafficking organization (DTO).

Court documents say that, “The crimes perpetrated by the DTO include the sale of powerful prescription narcotics such as oxycodone and fentanyl, along with other dangerous and addictive controlled drugs often sought in combination with narcotics, based on invalid prescriptions issued by practitioners including Tennant. . . . United has been submitting millions of dollars in fraudulent Medicare prescription drug claims, namely, claims for the cost of filling invalid narcotic prescriptions, including those issued by Tennant.”

Court documents show that the DEA investigators flagged United Pharmacy because it was filling more opioid painkillers than any other class of drug, often in maximum dosages and potencies.  Investigators filed an affidavit stating, “Specifically, investigators believe that United, Tennant and various medical practitioners are profiting from the illicit diversion of controlled substances, including the powerful narcotic fentanyl, which are prescribed and dispensed other than for a legitimate medical purpose.”

Investigators also allege that Tennant took over $100,000 in kickbacks from Insys Therapeutics, maker of a fentanyl-based nasal spray. Court documents claim that Tennant was the top prescriber of Subsys. There were 96 claims totaling more than $1.9 million for five patients between August 2014 and July 2016.

The warrant sought to seize drugs, documents, and records related to the distribution of painkillers and financial records of payments sent or received by doctors.

Tennant’s Reaction

Tennant told the San Gabriel Valley Tribune that he has done nothing wrong and that the alleged kickbacks were appropriate compensation for speaking engagements. Tennant, who is an outspoken supporter of using opioid medication to ease pain, said that he spoke for Insys numerous times between 2013 and 2015 and that the payments covered the cost of travel, lodging, and meals.

Timing of Investigation

The search warrant was served just one day after Dr. Tennant testified as an expert witness in the opioid trial of Dr. Chris Christensen. Dr. Christiansen of Florence, Montana is on trial for negligent homicide, criminal endangerment, and illegally prescribing pain medications.

At Christensen’s trial, Tennant testified that long-lasting, slow-releasing opioid medications were created in pill forms in 1996. At that time, the federal government said that it was acceptable to prescribe them because they were less likely to cause addiction. Tennant said, “That was a big mistake. . . . After that time, doctors started prescribing opioid drugs as a first line of treatment. I was against this, but I was a distinct minority.”

Tennant testified that prescribing opioids was a medical standard and that the Physician’s Desk Reference, which is the medical professions’ bible, did not give any warning or ceiling as to the dosages.  Tennant said, “That was between the physician and patient to determine. . . . There was no single government reference, no single document, no single article until 2016 to tell doctors how far they could go.”

The Arizona Supreme Court has affirmed a trial court’s decision about whether an expert witness can be excluded from observing trial testimony or reviewing the testimony of other witnesses.

In Emma Spring v. Timothy R. Bradford D.C., a patient sued her chiropractor, alleging medical malpractice. Emma Spring claimed that Timothy Bradford negligently performed a chiropractic adjustment that damaged her spine. Spring and Bradford each hired two expert witnesses to testify at trial. Spring presented expert witnesses Dr. Alan Bragman and Dr. Daniel Lieberman to testify about whether Bradford’s chiropractic adjustment complied with the applicable standard of care and whether the treatment caused Spring’s injury. Bradford presented Dr. Allan Hamilton and Dr. Robert Iverson as his standard-of-care and causation experts.

Court Invokes Rule 615

Before any witnesses testified, the trial court invoked Rule 615 of the Arizona Rules of Evidence, which provides that a trial court, at a party’s request, “must order witnesses excluded so that they cannot hear other witnesses’ testimony.”

At trial, both Dr. Bragmand and Dr. Lieberman testified as Spring’s expert witnesses.  When Bradford presented his defense, Dr. Hamilton testified. When Spring’s counsel cross-examined Dr. Hamilton, they learned that Bradford’s counsel had provided Dr. Hamilton with a transcript of Dr. Lieberman’s trial testimony.

The trial court found that Bradford’s counsel and experts had violated the court’s exclusion order, but that they had not acted in bad faith. The court put the burden on Spring to show prejudice and when she could not show prejudice, it denied her requests to strike Dr. Hamilton’s testimony and preclude Dr. Iverson from testifying. The court also provided the jury with two curative instructions relating to Bradford’s violation of the rule.

Spring moved for a new trial, based in part on Bradford’s violation of Rule 615. The trial court denied the motion, finding that the curative instructions and the opportunity for cross-examination prevented any prejudice to Spring. The court of appeals affirmed.

Rule 615 Violation Not Presumptively Prejudicial

The Arizona Supreme Court also affirmed. It found that a violation of Rule 615 is not presumptively prejudicial in a civil action, but that a trial court must take some corrective action. The court also found that expert witnesses are not automatically exempt from Rule 615, but that a trial court must allow a witness to hear or review a prior witness’ testimony if a party shows that an exception is essential to their claim or defense.

After the decision, Bradford’s attorney, Mandi J. Karvis, stated, “I think what attorneys need to take away from the ruling is that you need to be prepared to establish why your expert is essential to your claim or defense and not just presume that they will be essential even in a medical malpractice case or other case that requires expert testimony. . . . I think the practice pointer is to have a well-thought out argument regarding the special and unique nature of your expert’s role in your case and how they are truly ‘essential’.”

Nevada officials would like to use a new combination of drugs for the state’s first execution in more than a decade. Lethal injection experts around the country are expressing their concern.

The Original Protocol

In 1977, Oklahoma became the first state to adopt lethal injection execution. The three-drug protocol, developed by Dr. Jay Chapman, included the sedative sodium thiopental, a paralytic pancuronium bromide, and potassium chloride to stop the heart. Other states implemented similar protocols for lethal injection using these same drugs. However; in recent years, many pharmaceutical companies have stopped manufacturing and selling these drugs, causing a shortage. In some cases, companies that make life-saving drugs refused to export drugs to the United States that would be used to end lives.

As the original protocol was no longer available, states have had to devise new protocols for lethal injection execution. The protocols require the inmate be rendered unconscious before administering drugs that could cause unnecessary pain and suffering. Megan McCracken, attorney for the Death Penalty Clinic at UC-Berkeley School of Law explains, “From a legal perspective, we know it’s beyond question that if the person is conscious or aware, that would lead to an excruciating death. . . . That would violate the Constitution.”

New Injection Protocol

Nevada’s new protocol includes the sedative diazepam, the painkiller fentanyl, and the paralytic cisatracurium.  Diazepam is intended to induce sleep, fentanyl will depress breathing to cause death, and cisatracurium is intended to make death a certainty.  None of these drugs have been used in executions before. This new protocol was developed by Nevada’s chief medical officer, an anesthesiologist. The chief medical officer resigned two weeks ago, but said that his resignation had nothing to do with executions.

The new protocol was scheduled to be used in the execution of Scott Raymond Dozier. A stay of execution was filed and the district court judge ruled that the execution could go forward, but only with diazepam and fentanyl. The state attorney general’s office has said that it will appeal to the Nevada Supreme Court.

The Controversy

If this drug combination works without complications, the protocol could be used by other states as an alternative execution method. However, experts are not convinced that the new protocol will work.

Deborah Denno, a lethal injection expert and law professor at Fordham University, says, “It’s an experiment. . . . It sounds like a high-risk venture. Even trained people can’t claim to know what’s going to happen.” One risk is that the combination of diazepam and a high dose of fentanyl could cause complications such as vomiting.

Jonathan Groner, an Ohio surgeon and lethal injection expert, is concerned that using a paralytic as part of the combination could prevent body movements and disguise any suffering that the inmate may be experiencing. Groner said that the paralytic “pretty much ensures that if an execution is botched, we won’t know it.”

Another concern is that, if anything goes wrong with the first two drugs and the inmate is still alive when the paralytic is administered, he could be aware and unable to move as he suffocates. Dr. David Waisel, a Harvard University anesthesiology professor and expert witness, stated that this “would be a horrific experience.”

Expert witnesses offered testimony about burner phones and Facebook messages in the trial of two men charged with arson and murder in Hamilton, Ohio.

Patrick Wolterman’s Death

At 1 a.m. on December 28, 2015, an alarm went off at the home of Lester and Bertha Parker.  The police officer who responded to the alarm discovered smoke coming from an open cellar door, “Heavy smoke coming out of it . . . too heavy to get close.”

The Hamilton Fire Department answered the call.  One of the responding fireman, Patrick Wolterman, was injured when he fell from the first floor of the house to the basement.  Wolterman later died in the hospital. The coroner’s investigator at the Butler County Coroner’s Office determined the cause of death to be smoke inhalation due to a house fire with carbon monoxide toxicity and thermal injuries as contributing conditions.

Officials from the State Fire Marshal’s Office, the Hamilton police and fire departments, and the U.S. Bureau of Alcohol, Tobacco and Firearms investigated the cause of the fire.

Investigation and Arrests

The owner of the home, Lester Parker, and his nephew, William “Billy” Tucker, were charged with arson and murder for setting the fire that caused Wolterman’s death.

Prosecutors allege that Parker was having financial trouble and he came up with a plan to set fire to his home for insurance money. The prosecutors claim that Tucker agreed to light the fire for his uncle in exchange for pain pills. Both Parker and Tucker pleaded not guilty.

Expert Testimony

At trial, prosecutors called Jennifer Dillion of the Ohio Bureau of Criminal Investigation to testify about cell phones, phone calls, and Facebook messages that she analyzed. Dillion was able to determine what cell phone towers calls originated from.

Data indicated that on the date of the fire, Parker used a cell phone that he owned from the Hamilton area and the Cincinnati area to call a phone in Kentucky that belonged to Stacy Tucker. There was also evidence of calls from a prepaid burner phone with a Las Vegas number to a pay phone in Hamilton, across the street from the hotel where prosecutors allege Tucker stayed after the fire.

Tucker’s Facebook account also contained information that referenced pain pills and a completed job. One message from before the fire said, “I will have plenty of pain pills after Monday, well Sunday . . . need to get there Sunday.”  A message a few hours after the fire read, “Babydoll. Done with the job. Got to get some rest and call you tomorrow.”

 Cellphone Tower Evidence Controversy

In recent years, courts around the country have issued conflicting rulings about the reliability of cellphone tower evidence. Some experts say that cellphone tower evidence is often misinterpreted.  Michael Cherry, CEO of Cherry Biometrics, explained, “People tend to confuse the location of the cellphone with the location of the cell tower. . . . People like to say that the phone goes to the nearest tower. It goes to the clearest (signal) tower within range, not always the closest tower. You could be sitting on your living room couch and you could make four phone calls and each call would use a different tower.”