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.

DWI Forensic Expert Accused of Perjury and Mixing Up Results

Christopher Youngkin, a forensic analyst in Texas, has been accused of perjury and mixing up lab test results. Youngkin is one of the leading forensic analysts for the Department of Public Safety in Garland, Texas. The lab where Youngkin works is responsible for blood alcohol content testing and other tests in seven counties in Texas: Collin, Dallas, Denton, Tarrant, Rockwall, Cooke and Grayson. The thousands of DWI convictions where Youngkin testified at trial could now be in jeopardy.

Court documents show that Youngkin mixed up the blood alcohol tests on suspected DWI cases in 2013. A report that Youngkin sent to the police showed that a woman who had not consumed any alcohol had a blood alcohol level that was almost two times the legal limit. The error was soon discovered, the samples were retested, and no one was harmed. However, local defense attorneys are now questioning how that error has been handled and whether Youngkin has given conflicting testimony on the matter.

The Hearing

According to a partial transcript of a hearing on the matter, defense attorney Troy Burleson questioned Youngkin about a case in Dallas County in which he testified that he had switched vials in 2013. Burleson then questioned Youngkin about conflicting testimony given in Collin County, where he reported that he had never switched vials.

At Youngkin’s hearing, County Court at Law Judge Lance S. Baxter advised Youngkin that he had the right to remain silent and the right to consult an attorney. Youngkin invoked his Fifth Amendment right not to testify.

The Response

DWI Attorney Deandra Grant said that Youngkin has testified multiple times about these trials and given conflicting testimony.

Defense attorney George Milner has said that one of his clients was recently acquitted in a DWI case where Youngkin admitted his error.

Grant and Milner say that they now question the validity of Youngkin’s tests and testimony in other cases.

A spokesperson for the Department of Public Safety has refused to comment on the allegations, saying, “it would not be appropriate for us to discuss at this point. The relevant facts will be argued in a courtroom, which is the appropriate venue for an ongoing case.”

Retired Judge John Creuzot has commented that a finding of inconsistent testimony is serious. He explained, “The DA’s office, if they find out that their witness has committed perjury, they may want to recuse themselves because they have an intimate relationship by having used him as a witness in the past… It may be more appropriate to ask the judge to appoint a special prosecutor.”

Neither the Collin County nor Dallas County district attorney’s offices would respond to the specific allegations against Youngkin. The Dallas County district attorney’s office commented that this is an evolving matter that will continue to monitor.

This controversy comes just weeks after the Harris County toxicologist, Dr. Fessessework Guale, resigned after her academic qualifications were questioned. Dr. Guale had regularly testified in Houston-area DWI cases.

Scholar Examines Whether Police Officers Are Helpful to Juries As Expert Witnesses

Anna Lvovsky examines the origins and scope of the judicial presumption of police expertise for the Harvard Law Review.

History of Police Expertise in Courts

Lvovsky asserts that the idea of a police officer as an expert developed out of the police professionalization movement, which gained prominence in the 1950s. Trial court judges began to welcome police officers as expert witnesses on crime. Subsequently, courts began to use police officers as expert witnesses to analyze probable cause and authorize investigatory stops. Finally, police expertise was relied upon to act as a check against the risk of arbitrary enforcement and to “salvage” controversial statutes from vagueness.

Lvovsky argues that the professionalism movement was centered upon the expertise of the members of the occupation, a commitment to higher values, and bureaucratic organization and freedom from external influence. She asserts that the professionalism movement’s most successful efforts were the internal restructuring of police departments, including centralizing authority with police chiefs, limiting police tasks to crime prevention, and dividing work into different specialized departments.

Lvovsky asserts that police expertise comes from basic experience and education, both in conjunction with universities and in independent police academies.

Police, Public Relations, and the Courts

According to Lvovsky, once the caliber of the police form was improved, reformers wanted credit for it. In the 1930s, the International Association of Police Chiefs (IACP), the most prominent national organization in the police reform movement, organized a public relations committee and began to reach of to the media to pitch flattering articles about police departments while downplaying reports of misconduct. Locally, representatives of local police departments began similar public relations campaigns.

In the 1950s, the professionalism movement began to advocate to the courts. Beginning in the mid-1950s, a series of constitutional decisions that limited police investigative powers created an “uproar” among the police communities. Mallory v. United States restricted the right of officers to interrogate suspects prior to arraignment and Mapp v. Ohio required the exclusion of evidence when officers violated the Fourth Amendment.

In response to Mapp, police advocacy groups warned that such cases undervalued police authority and rendered “good police work meaningless and police experience as worthless.” Professionalism advocated began to advocate directly to the judiciary, inviting them to speak at police conferences and participate in round-table discussions “to encourage a two-way flow of information” as an ‘effective device’ for addressing unfavorable judicial rulings.”

Lvovsky opines that the police reform and professionalism efforts had some success. As a general rule, police began to keep better records, conducted more systemic investigations and were free from excessive political meddling. Police officers were generally seen as more competent and harder workers. In 1947, a survey of occupational prestige ranked police 55 out of 90. In 1963, police ranked 47 out of 90.

Police as Experts

Lvovsky questions whether the modern trend of asking police to testify as experts on complex issues ranging from gambling to prostitution to narcotics is helpful to courts and asserts that the reliance upon police expertise in these diverse areas may not have a sound basis.

Anna Lvovsky is an Academic Fellow at Columbia Law School. She focuses on criminal law and procedure, constitutional law and evidence, especially the legal and cultural dimensions of policing, judicial uses of professional knowledge, and the resolution of gender, sexuality, and morality. Her article is forthcoming in a 2017 Harvard Law Review Journal.

Supreme Court to Rule on Case Where Expert Testified that Race Predicts Violence

The Supreme Court had heard oral argument in the case of Duane Buck, a Texas murderer who was convicted after an expert witness testified that he was more dangerous because he was black.

The Conviction

Duane Buck was convicted of the murder of his girlfriend, Debra Gardner, and a man he believed she was having an affair with. He also shot his own stepsister. The shootings took place in front of Gardner’s children.

At his trial, Buck’s attorney, Jerry Guerinot, called psychologist Walter Quijano as an expert witness. Quijano testified that Buck was statistically most likely to commit future crimes because he was black. The propensity to commit future crimes is a key element in a death penalty sentence in Texas. Buck was sentenced to death.

Appeals Process

Buck’s conviction and death sentence were affirmed by Texas courts. His appellate attorney did not raise the issue of the racist testimony introduced by his attorney at trial. The federal appeals courts rejected this argument because it had not been raised in a timely manner in the Texas courts.

Buck sought relief under Federal Rule of Civil Procedure 60(b)(6), which allows a court to grant relief from a final judgment in an “extraordinary circumstance.”

The federal district court and the 5^th Circuit Court of Appeals denied relief. The Supreme Court granted certiorari.

Oral Argument Before the Supreme Court

Buck’s attorney through the NAACP, Christina Swarns, argued that Buck had been sentenced to death based upon “a false and pernicious group-based stereotype. Texas Solicitor General Scott Keller defended the appellate ruling and said that there was ample evidence to support a death sentence.

The Justices appeared to be in agreement that the court would rule in Buck’s favor. Justice Steven Breyer stated that the facts of Buck’s case “proves the arbitrariness of what’s going on out there.” Justice Ruth Bader Ginsburg said, “Doesn’t it show how abysmal his counsel was?” Justice Samuel Alito noted that, “What occurred at the penalty phase of this trial is indefensible.”

Reaction

Director Counsel for the NAACP Legal Defense & Educational Fund, Sherrilyn Ifill, stated that, “We are all at risk when our justice system allows prosecutors and juries to exercise lethal discretion based on race… Duane Buck’s case is as much about his own unlawful death sentence as it is about the ability of Harris County’s criminal justice system to produce outcomes free from the taint of racial discrimination.”

Legal commentator and Harvard Law School lecturer, Ian Samuel, noted that the courts are generally sympathetic to a petitioner such as Buck. “If you have a legitimate claim of ineffective assistance of counsel in a death penalty case, especially at the penalty phase, then there is no procedural obstacle on this earth that the Court is going to regard as sufficient to stop you from bringing that forward.”

After oral argument, Buck’s stepsister Phyllis Taylor, whom he shot, told reporters that she supports him and hopes that his death penalty conviction is vacated.

Judge Orders Douglas County to Pay $25K for Expert Testimony in Defense of Anthony Garcia

Judge Gary Randall has ordered Douglas County to pay $25K for expert testimony in defense of Anthony Garcia.

The Murders

Anthony Garcia is charged in the 2008 murders of Thomas Hunter and Shirlee Sherman and the 2013 murders of Dr. Roger and Mary Brumback.

On March 13, 2008, Dr. Bill Hunter drove home from work and noticed his housekeeper’s car still parked at his house. He was surprised because she was usually gone by the time he got home from work. When Hunter walked into the house he found his housekeeper, Shirlee Sherman, face down on the floor with a knife in her back. He immediately ran through the house, looking for his son. He found him, face down in the dining room with a knife in his neck.

Sherman had 18 cuts to her neck and a bruise to her forehead. Thomas Hunter had almost 10 wounds on his neck, severing his jugular veins and carotid arteries on both sides.

In May 2013, a piano moving company went to the Brumback house to pick up the Brumbacks’ piano for their move. The company owner, Jason Peterson, found the Brumbacks’ front door cracked open. When no one answered his knocks or calls, he peered into the open front door and saw the magazine of a handgun lying on the floor. Peterson called 911.

The responding police officers found Roger Brumback face down in a pool of blood. He had been shot in the shoulder and stomach and stabbed in the neck. They found Mary Brumback in the next room, also dead from knife wounds.

Garcia’s Arrest

Because of the similarities in the two events, investigators began to look at people who had connections with the victims in both crimes. Because Thomas Hunter’s father, Dr. Bill Hunter worked with Dr. Roger Brumback at the same office in Creighton University’s pathology department, investigators began to look into students who had been terminated or disciplined. Garcia was one of the few students that fit that description.

Electronics that were confiscated from Garcia’s home showed that he searched for the home addresses of his former supervisors, Dr. Brumback and Dr. Chanda Bewtra on May 12, 2013. Additionally, a stripper at a club that Garcia frequented told police that Garcia admitted to killing “a small boy and an old lady.”

Garcia was charged with the murders of the Brumbacks, Sherman, and Hunter.

Prosecutors allege that Garcia killed the four as revenge for Dr. Brumback and Dr. William Hunter firing Garcia from the Creighton University Medical Center in 2001.

Lack of Funds For Defense Experts

As Garcia’s trial began, his attorney argued that he did not have funds to pay for the expert witnesses that would be necessary to Garcia’s defense. Garcia signed an affidavit that declared himself to be indigent. Douglas County District Court Judge Gary Randall ruled that Garcia could not help pay for his own defense and ordered Douglas County to pay $25,000 for expert witnesses to testify on Garcia’s behalf. The money will be put into a trust account held by Garcia’s attorneys, who will have to document all related expenses.

Update on the Case

Anthony Garcia was found guilty on all counts.

Senior Criminalist Angela Stroman Gave Testimony in DUI Case

Senior Criminalist Angela Stroman gave testimony about blood alcohol levels in a DUI trial against Michael Matthew Montoya in Yolo County, California.

The Crash

Michael Matthew Montoya was celebrating Davis’ Picnic Day 2015. He consumed 6 beers at the event and drove away in a black Honda that he later crashed. Montoya told Yolo County Sheriff’s Deputy Robert Harbaugh that his girlfriend had been driving, but she left the scene to get her father. Witnesses, however, said that she was not driving.

Deputy Harbaugh described Montoya as “unsteady, had bloodshot eyes and smelled of alcohol.” According to Deputy Harbaugh, when Montoya’s girlfriend arrived back at the scene, Montoya asked repeatedly to leave and made an attempt to walk over to her, pushing aside another officer who had arrived. After Montoya attempted to walk over to his girlfriend, he was handcuffed and placed in the deputy’s car.

Montoya claimed to have only consumed six beers at the event. By 3:53pm, Montoya’s blood alcohol level was 0.178 (reported in the linked press account as 1.78, a blood alcohol content that no living person could attain). Montoya was charged with a misdemeanor DUI along with enhancements for excessive blood alcohol levels.

DUI Law in California

In California, if there is no bodily injury or death caused by the DUI, the minimum sentence for a misdemeanor first conviction are fines and penalties of approximately $1,800, 48-hour jail sentence or 90-day license restriction, attendance and completion of a $500, three-month alcohol-treatment program, and loss of driving privileges for at least 30 days.

The maximum penalty for a first DUI conviction in California is a fine of $1,000, over $2,600 in penalties, six months in jail, a six-month license suspension (10 months if your blood alcohol level was 0.15{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} or more), having your vehicle impounded for 30 days, and being required to attach an “interlock” breath device to your vehicle that will not allow it to start if there is alcohol on your breath.

Montoya’s Trial

Montoya’s attorney, Deputy Public Defender Aram Davtyan, asked the jury to give Montoya the “presumption of innocence” and argued that his client had not been driving the car.

Montoya’s blood alcohol level was an issue at trial. In many DUI trials, attorneys question the accuracy of in-field testing processes. Angela Stroman was called as an expert witness on blood alcohol levels. Stroman is a Senior Criminalist with the United States Department of Justice.

Stroman explained how every individual is different and that many factors are taken into account when determining the stages of intoxication, “A lot depends on how much alcohol is in one drink, ounces and a person’s body weight, contents of the stomach and body chemistry…there are several factors we look at.”

Stroman explained that a blood alcohol of .04 is the first stage of intoxication and at this level, a person could drive home safely. Stroman testified that when a person’s blood alcohol level reaches .08, the majority of people will experience an impairment of vision, reflexes, judgment, and clarity. Stroman explained that sometimes a person’s blood alcohol level can rise over time because of the way that the alcohol is absorbed in the body.

Neuropathologist Testifies That Toddler Suffered Abuse-Related Trauma

Neuropathology expert Dr. Bennet Omalu has testified in the death case of Cameron Morrison.

The Case

In the case of the People v. Darnell Dorsey, Darnell Dorsey is accused of assaulting and causing fatal injury to Cameron Morrison, his girlfriend’s 20-month-old child. Dorsey is charged with California Penal Code 273a and 273ab. California Penal Code 273a makes it a crime for any person to cause suffering or death to any child and is punishable by time in county or state jail. California Penal Code 273ab makes it a crime for any person taking care of or in custody of a child under age eight to assault the child by force or produce bodily injuries to cause the death of the child. A violation of California Penal Code 273ab is punishable by 25 years to life in prison. Cameron was under Dorsey’s care when he was taken to the hospital and later pronounced dead.

The People are represented by Deputy District Attorney, Michelle Serafin. The People called Dr. Bennet Omalu as an expert witness.

Dr. Bennet Omalu’s Background

Dr. Omalu is a physician, forensic pathologist and neuropathologist, with a masters in Business Administration. Dr. Omalu focuses on Public Health and epidemiology, with an emphasis on the study of disease and movement. Dr. Omalu is credited with discovering chronic traumatic encephalopathy (CTE), a disease he discovered while performing an autopsy on a former NFL football player. Chronic traumatic encephalopathy is a progressive degenerative disease of the brain found in those who have a history of repetitive brain trauma. Dr. Omalu has performed over 8,000 autopsies since 1984 and is the Chief Medical Examiner in San Joaquin County.

Dr. Omalu was sent different samples from Cameron Morrison’s body from the medical examiner in the case. Dr. Omalu reviewed Cameron’s medical records and published his independent findings for the courts. Cameron was found to have severe brain trauma and a damaged hypothalamus. Dr. Omalu also examined Cameron’s other organs. He found evidence of contusions in the lungs, liver, and abdomen, which are often signs of child abuse. Dr. Omalu said that Cameron’s brain showed several signs of trauma, as evidenced by subdural hemorrhaging, brain swelling, and external injury.

Dr. Omalu’s Testimony

Dr. Omalu testified that Cameron’s cause of death was severe brain injury due to head trauma.

Under direct examination by Michelle Serafin, Dr. Omalu testified that, “There were axial and vascular injury from the trauma” and that the injuries to Cameron’s body could not have happened in the hospital. Dr. Omalu testified that “no physician makes a conclusion of child abuse based on one test or culture, a combination of tests are done in order to make the conclusion of child abuse” and concluded that the injuries on Cameron’s spine showed evidence of brain trauma and hemorrhage. Dr. Omalu also testified that Cameron’s death was caused by blunt force trauma of the brain, back (spine), torso and trunk.

Defense attorney, Joseph Gocke, handled Dr. Omalu’s cross-examination. Gocke attacked Dr. Omalu’s credibility, bringing up a 2009 story by a Scottish journalist that accused Dr. Omalu of false findings. Dr. Omalu responded that the journalist in question had been hired by the NFL to damage his credibility, because he had discovered that repeated head trauma causes brain damage.

Salvation Army Attorney Attacks Credibility of Retail Expert

An attorney for the Salvation Army has attacked the credibility of a retail management expert who testified that Salvation Army executives failed in their duty to protect the employees and shoppers who were killed in the 2013 collapse of a building in Center City Philadelphia.

Center City Building Collapse

On June 5, 2013, a building in Center City, Philadelphia was being demolished. During the demolition, an unbraced stone wall that was three- to four-stories high collapsed and crushed the Salvation Army thrift store that was located next to it. The collapse killed six people and injured 13 people, one of whom died 23 days later.

The man who was operating the excavator, Sean Benschop, and the general contractor, Griffin Campbell, were prosecuted for the deaths. Benschop pleaded guilty to six counts of manslaughter and other charges and was sentenced to 7.5 to 15 years in prison. Campbell was found guilty of involuntary manslaughter by a jury and was sentenced to 15 to 30 years in prison for his role in the catastrophe.

Civil suits were filed against the Salvation Army, the New York real estate investor Richard Basciano and his company STB, the architect, the contractor Campbell, and the excavator Benschop.

Expert Witness Robert Bartlett

In the consolidated civil suit, expert witness Robert Bartlett testified that the conduct of the Salvation Army officials was a “major management failure,” including hiring an architect but never sending him to the store to investigate what was actually happening. Bartlett argued that the Salvation Army officials failed by keeping their store open during the demolition of the building that was next door, without letting its managers, employees or customers know about the danger.

Robert Bartlett is a retail management consultant with over 25 years experience in the field. He runs Bartlett Joseph Associates, a retail industry management consultancy firm. His company focuses on business strategy, organization and management. It provides a broad range of product design and marketing services and has undertaken due diligence reviews of companies on behalf of investors and banks. Bartlett Joseph Associates’ extensive client list includes companies such as Bank of America, Banana Republic, Macy’s, Lowes Home Improvement, Williams Sonoma Target, and Wal-Mart. Robert Bartlett has provided expert testimony as a retail expert in dozens of cases, providing expert testimony on issues including vendor agreements, contracts, store leases, intellectual property, product dating and pricing, customer service and safety, and technology and brand marketing.

Attacking Bartlett’s Credibility

An attorney for the Salvation Army, John J. Snyder, confronted Bartlett with copies of emails that were sent and received between May 10, 2013 and May 15, 2013. The emails were between the Salvation Army and STB Investments Corp., the owner of the four-story building that crushed the Salvation Army store. Snyder argued that this chain of emails show that the Salvation Army was in communication with the STB Property Manager and was actively working to ensure the safety of its store, workers, and customers.

Snyder also argued that Bartlett is not credible as a witness when he criticizes the performance of Salvation Army officials because his opinions are based upon transcripts of court testimony and pretrial depositions.

Expert Testifies That Man Charged With Horrific Murder of 6-Year-Old is Competent to Stand Trial

A doctor has testified that Ronald Exantus, the man accused of killing 6-year-old Logan James Dean Tipton, is competent to stand trial.

Logan’s Death

Exantus has been charged with first-degree murder, burglary, two counts of second-degree assault, and one count of fourth-degree assault in connection with the death of Logan James Dean Tipton. Authorities claim that Exantus entered the Tipton’s home through an unlocked door, took a knife from the kitchen, and stabbed Logan repeatedly in the head while he slept. The oldest daughter in the family and the father, Dean Tipton, fought off Exantus until the police arrived.

There appears to be no connection between Exantus and the Tipton family.

The Expert

Dr. Amy Trivette is the medical director of Kentucky Correction Psychiatric Center in La Grange. Trivette evaluated Exantus from February 23 to May 2, while he was at the psychiatric center for a court-ordered evaluation and testified at Exantus’ competency hearing.

Trivette testified that Exantus understands the charges that he faces and is able to assist rationally in his own defense. Trivette testified that Exantus had no prior criminal or psychiatric history. Upon his admission to the psychiatric center, Exantus told staff that he smoked marijuana frequently in the year prior to his arrest and that he had contemplated suicide. Exantus also claimed to hear negative voices in his head that spoke to him the Creole language of his parents. While Exantus initially exhibited some impairment in his ability to think logically, Trivette testified that he improved over the course of his treatment at the psychiatric center and had “intact” judgment at the time of his discharge.

The Defense Position

According to Trivette, Exantus understands that the charges against him are serious and the roles of the judge, jury and attorneys. Exantus’ public defender, Bridget Hofler, pointed out that Exantus was not clear on all of the court rules and procedures. She noted that Exantus incorrectly believed that 7 of 12 jurors would have to vote him guilty for him to be convicted. Trivette opined that Exantus would be able to understand such concepts if they are explained to him.

Hofler questioned Trivette as to whether competency is fluid, asking if it was possible for Exantus to not be competent by the time trial began. Trivette answered that it was possible.

Woodford Circuit Judge Rob Johnson will issue a written ruling on Exantus’ competency to stand trial.

After the competency hearing, Hofler made a statement to reporters, “Sometimes, people just have psychotic breaks … They (psychiatric center personnel) can’t even determine what kind of psychosis it was. They just know he was psychotic. He was psychotic when he was in KCPC, they treated him … and he got better… He did a lot of really bizarre things that I’m not really able to go into now, culminating in him getting into a car, and driving over 300 miles to a place he’d never been, going in the home of people he’d never met, and this thing happening… I mean, he’s never been to Kentucky before other than to drive through it to get to Florida to see his parents.”

Expert Witness Opines That Police Officers Violated Their Own Training in Fatal Shooting

An expert in police practices has testified that two Albuquerque officers violated their own training when they fatally shot a homeless man in 2014.

Shooting of James Boyd

On March 16, 2014, the Albuquerque Police Department was called to the Pierdra Vista area when neighbors noticed a suspicious man illegally camping in the foothills. The responding police officers found 38-year-old James Boyd, who was armed with knives and yelling angrily.

At one point, Boyd was walking down the hill and an officer set off a flash-bang grenade. The area was filled with smoke and a police dog rushed at Boyd. The officers yelled for Boyd to get on the ground and he reached into his pockets and pulled out what appeared to be two knives. Boyd was shot and killed during this standoff. Boyd was shot by stun gun, bean bag, and assault rifle rounds during the standoff. The lethal shots came from Officer Dominique Perez and Officer Keith Sandy.

Officers Perez and Sandy were charged with second-degree murder in connection with Boyd’s death. Perez was later dismissed from the Albuquerque Police Department. Sandy retired.

Attorney for Perez, Luis Robles has commented that charging these officers with murder will have a negative impact on the police department, “If you’re second-guessed every time you make a decision, and you might find yourself criminally charged, and if you second-guess yourself and you don’t take action, you might find yourself in a very dire predicament where you’re fighting for your life… I think everyone thought that by essentially going after (APD) you were going to make things better. Be careful what you ask for. If you break your police department, you will have that broken police department to protect you. And that’s a really unfortunate place to be when you need their help in a situation where you can’t help yourself.”

Trial for Murder

At the officers’ trial, special prosecutor Randi McGinn argued that the police officers created a dangerous situation during the standoff that led to the standoff. McGinn called police expert Jeffrey Noble to testify.

Noble testified that the police officers violated their training by shooting Boyd. Noble said that the officers had a plan to get Boyd to surrender. When that plan failed, the officers had the opportunity to reassess the situation and create distance between themselves and Boyd, but they failed to do so. Noble also said that the knives that Boyd had did not possess an immediate threat when he was shot.

Expert Witness Jeffrey Noble

Jeffrey Noble has 28 years of experience as a police officer, including his time serving as the Deputy Chief of Police of the Irvine Police Department. After his retirement from the Irvine Police Department, Noble served as a temporary Deputy Chief of Police for the Westminster, CA Police department where he facilitated the efforts of an independent oversight official, reviewed department policies and procedures, conducted department audits, and provided management and leadership to the department.

Noble has been retained as a police expert in over 100 cases in California, Texas, Washington, Florida, Georgia, Colorado, Oklahoma, Ohio, Kentucky, Pennsylvania, Connecticut, South Carolina, Tennessee, New York, Illinois, Arkansas, Idaho and Louisiana.

DNA Expert Thrown Out of Court

The DNA expert who was presented by defense attorneys in the trial of a man charged with participating in the violent beating of a gay black man was thrown out of court by a Brooklyn Supreme Court Justice.

Taj Patterson

On December 1, 2013, 22-year-old Taj Patterson was walking home on Flushing Avenue in Williamsburg, Brooklyn when he was assaulted by a gang of men associated with a Hasidic neighborhood watch group known as the Shomrim. The men were responding to a report that someone in the area had been vandalizing cars. That report later turned out to be false.

Patterson testified that he was chased by three Hasidic Jewish men who were screaming “something negative” at him. Additional men joined the attack. Patterson recalled, “I was trying to stop cars, two or three, to get them to help. I banged on the windows asking for help, but they kept driving. There were 20 people behind me. … I gave up.”

Prosecutors claim that the members of the Shomrim mistook Patterson for the vandal and beat him so badly that he lost vision in his right eye. The responding police officers spoke to four witnesses at the scene and obtained the license plate of a car that was used by attackers to flee. The case was quickly closed, but reopened when Patterson’s mother went to the press with her son’s story.

In April 2014, Abraham Winkler, Pinchas Braver, Joseph Fried, Aharon Hollender, and Mayer Herskovic were arrested and charged with Patterson’s assault. Winkler and Braver made a deal with the Brooklyn district attorney’s office, pleading guilty to a reduced charge of unlawful imprisonment. The prosecutors dismissed all charges against Fried and Hollender, stating that the witnesses who had originally identified them had recanted. Only Herskovic’s trial is still pending.

Herskovic’s Trial

At Herskovic’s trial, Patterson testified that he was able to strike one punch at the leader of the group, breaking his glasses. He stated that, “That same individual who stood in the middle of the three men kicked me in the face, the ringleader.”

Patterson was unable to identify Herskovic as one of his assailants, but the prosecution was able to link Herskovic to the crime based with “touch DNA” evidence that was found on the heel of the shoe that Patterson was wearing on the night of his attack. Patterson’s sneaker was hurled onto the roof of a nearby building after two passersby intervened in the attack.

Herskovic’s legal team brought in Arthur Young, a forensic scientist, to challenge the legitimacy of the DNA evidence. Lead prosecutor Timothy Gough challenged Young’s status as an expert, asking, “Has there ever been a time when you were not declared an expert?” When Young responded that there was a time that he was not admitted as an expert in Staten Island, prosecution questioned him further. Eventually, Young admitted that he had been fired from multiple jobs, that he had embellished his qualifications, and that his website made some incorrect statements about his expertise.

Brooklyn Supreme Court Justice Danny Chun dismissed Young and instructed the defense team that it had 24 hours to find another DNA expert.

Herskovic faces up to 25 years in prison if he is convicted.

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