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.

Blood Spatter Expert Witness Opines That Death Was Not a Suicide

An expert witness at the trial of a man charged with the murder of his girlfriend has opined that the death was not a suicide.

Deborah Hovestadt’s Death

Deborah Hovestadt died on July 7, 2014, in the home that she shared with her 30-year-old boyfriend, Darryl Taylor. Hovestadt was found in their home with a gunshot wound to her face and a firearm in her right hand. The weapon that was found at the scene was identified as a .44 Magnum Redhawk.

Taylor told the authorities that the two were not fighting when the gun went off and that Hovestadt did not know the gun was loaded. Taylor also said that Hovestadt had repeatedly accused him of cheating.

Taylor’s Trial

Taylor was charged with murder with a firearm specification and aggravated murder with a firearm specification. He was also charged with two separate weapons charges to which he entered a plea of no contest.

At Taylor’s murder trial, the prosecution’s expert witness, Alexander Jason, testified that, “This was a homicide with the physical evidence the way it is.” Jason is a certified senior crime scene analyst who lists himself as a qualified expert witness in: crime scene reconstruction, force science, shooting incident reconstruction, blood spatter interpretation, forensic photography, wound ballistics and forensic animation in Federal and State Courts (Alaska, California, Colorado, Florida, Maryland, Mississippi, Missouri, New Jersey, New York, Texas, Washington, & West Virginia.) Jason claims to have about 30 years experience in the field.

Jason testified that, based upon the gunshot residue and the blood spatter, the shot that killed Hovestadt was fired from more than 3 feet away. Jason also testified that it would not have been possible for Hovestadt to have held the gun in her hand more than 16 inches away from her face; this would preclude a suicide. Jason showed photos of tests that he conducted with a .44 Magnum. He opined that it had “an extremely strong recoil.” Jason also opined that he thought that the crime scene had been altered. Prosecutors argue that Hovestadt would not have been able to hold it in one hand as she was found at the crime scene.

Assistant Prosecutor Brandon Pigg conducted Jason’s direct examination. Jason testified that the lack of gunshot residue on Taylor’s hands was not significant and that he still could have fired the gun. He said, “It’s not a tattooing of the skin, an indelible marking like some people think.”

Defense attorney Jerry Thompson questioned Jason’s qualifications and his testing methods during cross-examination. Thompson pointed to Jason’s degree in journalism and the fact that he did not use the actual gun or the bloody blanket that was covering Hovestadt when he conducted his tests.

Jason responded that he did not think there was a significant difference between the gun that .44 Magnum that he tested and the one that was found at the crime scene. He noted that the gun that he tested was slightly heavier, but the barrel was the same length and he used the same brand of ammunition in his tests.

Toxicology Expert Discredited and Cases Are in Jeopardy

Toxicology expert, Dr. Fessessework Guale, has been accused of lying on the stand. The cases in which Dr. Guale has testified are now in jeopardy.

Gaule’s Degree

Dr. Guale claimed to have a Masters of Science degree in Toxicology from Oklahoma State University. However, according to a notice sent by the Harris County District Attorney’s office, “Dr. Fessessework Guale of the Harris County Institute of Forensic Sciences may have testified in past trials that she received her Master’s (sic) of Science degree in Toxicology when, in fact, she received her Master’s (sic) of Science degree in Physiological Sciences (with coursework and research in toxicology).” The District Attorney’s Office is now requesting that defense attorneys review 10 years of their DWI cases to search for erroneous testimony from Dr. Guale.

Dr. Guale’s resume shows that her degree is from a veterinary college and that her doctorate is in veterinary medicine from an Ethiopian veterinary school. Guale has been employed since 2006 with the Harris County Institute of Forensic Sciences, which is the county’s medical examiner’s office. The Harris County Institute of Forensic Sciences says that its hiring manager should have noticed Dr. Guale’s degree discrepancies on her resume and job applications. That manager left the office before this controversy surfaced.

Jeff McShan, spokesperson for the Harris County District Attorney’s Office, has stated that prosecutors are still trying to determine how many cases Guale testified in as an expert. Records from the Harris County Institute of Forensic Sciences show that Guale has testified in 33 cases dating back to 2011.

Responding to the questions about her credentials, Guale stated, “I did not lie. It’s just a misunderstanding. I actually told the truth.” When questioned about her claim to have a Masters in toxicology, she responded, “My Masters is in Physiological Sciences which toxicology is a sub-discipline of.” Guale also noted that she is board certified in forensic toxicology and claims that the basic science behind the effects of alcohol is the same in animals and humans. Guale’s expert witness testimony has been about defendants’ blood alcohol content.

Community Response

The Harris County Criminal Lawyers Association (HCCLA) is requesting that criminal charges be brought against Guale for perjury. Commenting on Guale’s resume, HCCLA President Tyler Flood has stated, “That’s a lie, she has a masters in physiological sciences… But when you look closer it doesn’t relate to humans.” Flood also opined, “It’s very disturbing because there are people who are charged with felony offenses … and they can be convicted and go to jail or prison based on her testimony. And she’s not qualified to be talking about this subject.”

The Harris County Institute of Forensic Sciences stated that Guale is being retrained and that it remains confident in her abilities. It has stood behind Guale, stating that she has taken part in continuing education in forensic toxicology and “has earned certification by the American Board of Forensic Toxicology reflecting her knowledge, training, and experience in forensic toxicology… Dr. Fessessework Guale is fully qualified to hold her current position … and to provide expert testimony in court.”

Prosecutors Argue to Exclude Police Shooting Expert

Michael Edington is a 27-year-old police officer with the Norfolk Police Department who has been charged with the manslaughter of David Latham, who he shot while on duty. As part of Edington’s defense, his attorney, Jeff Swartz, plans to introduce an expert witness who will testify on how Norfolk officers are trained to decide whether to shoot. The prosecutors are trying to keep the expert off the stand.

The Shooting

On June 6, 2014, Audrey Latham called the police for assistance with her son. Audrey Latham said her son was suffering from schizophrenia and had recently stopped taking his medication. She had called the police at least eight times previously for assistance with her son.

Several police officers responded to the call. When the police arrived, Latham was still holding a knife that he had grabbed earlier when he was fighting with his brother. Within minutes of police arrival to the Latham home, Edington shot Latham six times, including two times in the back.

The Indictment

A special grand jury was impaneled to decide whether to indict Edington. The grand jury considered charges of second-degree murder, use of a firearm in the commission of a felony, and voluntary manslaughter. The grand jury returned a charge of voluntary manslaughter. Voluntary manslaughter is a class-5 felony in Virginia, punishable by up to 10 years in prison.

When Edington was indicted, Latham’s Family released a statement saying, “The family is pleased the criminal case will go forward. They are looking for justice for their son. They are pleased the grand jury found there is sufficient evidence to indict, but they know there is still work to be done. The criminal case will be a public trial. We feel it is good because everyone will be able to know what happened. We are pleased the court system seems to be working. From everyone knowing what happened here, we can prevent this from happening to other families.”

Expert Witness Controversy

Defense attorney Jeff Swartz wants to call expert Urey Patrick to testify in Edington’s defense. Patrick has 24 years experience with the FBI and has been testifying in similar court cases since his retirement in 1997. Patrick has reviewed Norfolk’s police office training and proposes to testify regarding why officers shoot to kill, why they fire so many shots, and why they may continue to shoot when someone is no longer a threat.

Commonwealth’s Attorney Greg Underwood argued that Patrick should not be allowed to testify. Underwood argued that Patrick doesn’t know how Norfolk trains its officers because he has never trained them nor seen them trained and any testimony on Norfolk’s training would be inadmissible hearsay. Underwood also argued that Patrick is not qualified to testify as to why an officer would use deadly force. Underwood also stated that he thought that Patrick would testify about whether Edington was justified in shooting Latham.

Circuit Judge Junius Fulton III has yet to decide whether to allow Urey Patrick to testify.

Northern Mariana Island Judge Denies Motion to Exclude Witness in Chinese Methamphetamine Case

In District Court for the Northern Mariana Islands, Chief Judge Ramona V. Manglona has denied the motion by the U.S. government to exclude the testimony of an expert witness in the trial of one of the three Chinese nationals who was charged for the shipment of 4.9 lbs. of methamphetamine worth $850,000 in December last year.

The Motion

Judge Manglona denied the motion without prejudice, which means that the U.S. government may renew the motion later, at the appropriate time. Judge Manglona ruled that the expert in question will be a rebuttal witness, and the court has yet to determine whether the prosecution witness will be permitted to give expert testimony. Judge Manglona stated that if the prosecution witness is permitted to testify, then the court will be inclined to allow a defense rebuttal witness.

The motion was filed by Assistant U.S. Attorney Garth R. Backe. Backe said the expert witness for the defense will testify that there is an explanation for the erratic driving behavior of the co-defendants in this case, Xi Huang and Shicheng Cai, as they are drivers from China and that defendant Zhaopeng Chen did not understand what Huang was doing.

Backe argued that the defendant’s notice fails to comply with the Rule 16 of the Federal Rules of Criminal Procedure, which requires a defendant to give prosecutors a written summary of any testimony that the defendant intends to use as evidence at trial. Backe argues the defendant’s summary has not complied with the requirement to describe the witness’s opinions, the bases and reasons for those opinions and the qualifications of the witness. Backe argued that the testimony of the expert witness would be improper and can be both powerful and misleading.

The attorney for plaintiff Chen, David G. Banes, replied that the defendant provided proper notice even though the U.S. government has not yet complied fully with Rule 16 about its experts, and that there is no legal basis or authority for the U.S. government’s demand that Chen be precluded from offering any testimony on the same topic as the U.S. government’s expert witness.

Other Defendants

Chen’s co-defendants, Huang and Cai, have already pled guilty. Huang was sentenced to 188 months of imprisonment. Cai has not yet been sentenced.

Banes said per discovery materials provided by the U.S. government, Huang denied Chen’s involvement in the conspiracy when he was given a chance to talk before his sentencing. Huang was alleged to be the leader of the group. Huang’s brother, Biao Huang, committed a similar crime in 2010 and was sentenced to 135 months in prison.

Chen, Huang and Cai were indicted for conspiracy to possess with intent to distribute methamphetamine over the shipment of 4.9 lbs. of meth worth $850,000 in Dec. 2, 2015.

Customs officers conducting a routine inspection at the Port of Saipan discovered the meth hidden in three plastic bags in one of nine 5-gallon paint buckets in a 40-foot container from Guangzhou, China, which led to the arrest of the three defendants.

Bite Mark Expert Witness Continues to Cause Controversy

Dr. Michael West, the forensic expert who was best known for his analysis of bite marks, continues to cause controversy with his techniques. Most recently, his work on a Mississippi murder trial has come under scrutiny.

West’s Background

West is a forensic dentist, originally from Hattiesburg, Mississippi. He became well known in the legal community as a teeth and bite mark analysis expert. He has also given testimony as an expert in crime-scene investigation, forensic photography, video enhancement, gunshot residue, wound patterns, bloodstain analysis, and the use of ultraviolet light for detecting evidence. Over a period of 15 years, West testified in 71 trials in 9 states.

West’s Critics

West has been criticized for overstating his findings and testifying on subjects where he had limited expertise. Following ethical investigations into his practices, he resigned from the International Association of Identification in 1993 and the American Academy of Forensic Sciences in 1994. West was investigated and suspended by the American Board of Forensic Odontology.

West has numerous critics. Dr. Richard Souviron, a Miami forensic dentist has stated, “His results are beyond outrageous…He has hurt a lot of people.” James Starrs, professor of law and forensic science at George Washington University, has stated, “He is clearly a sore on the body of forensic science…He is forever going beyond what other scientists are willing or able to say.” Robert Kirschner, former deputy chief medical examiner for Cook County, Illinois, says West’s “results shouldn’t be admitted in any court.” Kirschner claims that West’s work violates every rule of scientific inquiry and investigation and that West has never been able to document anything he claims to have done.

Despite the controversy over West’s practices, he continues to be used as an expert witness at trial.

Since 2000, at least 17 people who were previously convicted of murder or rape based upon bite mark testimony have been exonerated. West was the expert in two of those cases.

Bite Mark Analysis History

Bite mark analysis began in 1954 when a dentist testified that a bite mark in a piece of cheese, left behind in a grocery store that had been robbed, matched the teeth of a man who had been found with 13 stolen silver dollars. The man was convicted.

In 1974, two dentists testified that a man’s teeth matched a bite mark on a murder victim’s body. The defense attorney fought the admissibility of the testimony, but the court allowed it because of the 1954 testimony about the cheese.

Recent Controversy

Recently, West was deposed in the matter of Eddie Lee Howard v. State of Mississippi. Howard was convicted and sentenced to death for the rape and murder of an 84-year-old woman in 1994. Howard’s conviction was partially based upon West’s bite mark testimony.

Years later, Howard’s attorneys were able to have DNA testing on the knife that was allegedly used to kill the woman that Howard had been convicted of killing. The tests excluded Howard as the source of the male DNA on that knife. With this newly discovered evidence, Howard’s attorneys were able to reopen some issues in the case, including a challenge to West’s credibility.

At the deposition, West was questioned by Chris Fabricant, the Director of Strategic Litigation at the Innocence Project in New York. West was an uncooperative witness, failing to review his original trial testimony and maintaining that he stood by his 1992 testimony.

Howard is being represented by Vanessa Potkin, Peter Neufeld, and Dana Delger of the Innocence Project in New York.

Attorneys Argue About Allowing Blood Evidence and Expert Testimony

The attorneys for Kelli C. Smith, who has been accused of being drunk when she caused a fatal car crash in 2012, are attempting to bar the state from presenting blood evidence that she was intoxicated. The defense also contends that the state is attempting to call an expert witness that the defense consulted before the first trial.

The Incident

At 3:30 a.m. on February 25, 2012, Kelli Smith was driving a Nissan SUV eastbound in the westbound lanes of Interstate 70, when she hit a car head-on. The collision killed 35-year-old Thomas D. Sullivan, Jr., the driver of the other car. Sullivan’s car caught fire after the crash, burning his body beyond recognition. Smith had to be extricated from her car and was airlifted to University Hospital in Columbia, Missouri with serious injuries.

First Trial

In May 2012, Smith was charged with first-degree involuntary manslaughter. The state argued the Smith knowingly got behind the wheel while intoxicated. She had been visiting bars in downtown Columbia that night and drove a couple people home before leaving the city. Smith’s defense counsel presented evidence that Smith was not drunk, but instead was under the influence of a date-rape drug that was used to sexually assault her. Smith’s attorneys brought in expert witnesses who criticized the Missouri State Highway Patrol’s investigation of the accident, the extraction and handling of her blood sample, and their failure to investigate the sexual assault.

During her four-day trial, Smith’s friends and family testified on her behalf while Sullivan’s family gave victim impact statements.

Smith’s father, Jim Smith, stated, “I know Kelli feels just horrible about the loss of Thomas Sullivan…She stated many times since the accident that she wished it was her, not him.”

Thomas D. Sullivan, Sr. said that the loss of his son is constant. He showed the jury photos of his grandsons, who were 4 and 7 at the time of his son’s death. He said, “They’ll never get to know their dad…He was a great father and a loving provider. Patient beyond the patience I had.”

The jury convicted Smith of first-degree involuntary manslaughter and recommended a five-year prison term.

New Trial

Smith appealed her conviction, arguing that the district court judge improperly instructed the jury about blood alcohol evidence, that the court should not have admitted her blood test as evidence, that it improperly limited her references to a date rape drug defense, and that the replacement of a juror during deliberations was inappropriate. The Missouri Court of Appeals granted Smith a new trial on the basis that the jury may have been prejudiced by the instruction on blood alcohol evidence.

In her second trial, Smith’s attorneys are again arguing that the state should not be allowed to present blood evidence that Smith was intoxicated. They assert that the evidence is unreliable because it had been taken more than 8 hours after the accident and had not been refrigerated for more than a week.

The state made a motion to bar witness opinions about whether Smith was raped before the crash. The district court judge ruled against the motion. The court will have another hearing to rule on whether defense can keep the blood evidence out and whether the state can use as an expert witness a doctor that a defense attorney consulted before the first trial.

“Forgotten Baby Syndrome” Expert Offers Testimony In Trial for Negligent Homicide

Judge Wade Naramore is on trial for the negligent homicide of his son, Thomas, who was found dead after his father left him in a hot car in July 2015. Naramore is a circuit judge in Garland County, Arkansas.

At the time of his arrest, Naramore told investigators that he forgot to drop off his son at daycare and left him in the backseat for about five hours. He said that he didn’t realize his son was still in the back seat until he heard a noise in the rear of his car when he was driving to pick his son up from daycare later that day.

Following a six-month investigation by special Prosecutor Scott Ellington, Naramore was arrested and charged with negligent homicide, a Class A misdemeanor. He turned himself in and pleaded not guilty. Naramore faces up to one year in jail and a fine of $2,500 if convicted. The Arkansas Supreme Court has temporarily suspended Naramore, pending the outcome of his case.

Naramore’s Defense

Naramore’s defense team called David Diamond, Ph.D, to testify as an expert on memory loss. Dr. Diamond is a neuroscientist and professor at the University of South Florida. He is also the Director of the USF Center for Preclinical and Clinical Research on Post-Traumatic Stress Disorder. Dr. Diamond has studied the “Forgotten Baby Syndrome” and has testified in numerous cases as a scientific consultant on cases involving memory-related child death.

Dr. Diamond’s fee is $10,000 to investigate cases such as Naramore’s. Dr. Diamond says that he will only testify in cases that he determines to be accidents.

Dr. Diamond opined that there were several factors that may have affected Naramore on the day that he left Thomas in the hot car. Diamond noted that the numerous changes in Naramore’s routine, possible sleep deprivation, and stress or distractions all could have played a role in the incident.

On most mornings, Naramore ate breakfast at home, but that day he stopped for breakfast at McDonald’s. Dr. Diamond theorized that stopping for breakfast triggered a “restart” of Naramore’s habitual behavior of driving to work after stopping at daycare. His brain treated the stop at McDonald’s as if it were a stop at daycare. Naramore then stopped thinking of having a baby in the backseat, just as he would have done if he had dropped the baby at daycare.

The state attempted to undermine Dr. Diamond’s testimony by questioning the statements that Naramore made to him to help develop Diamond’s forgotten child theory.

In 2014, Dr. Diamond previously testified that 200 children have died worldwide over the past 15 years after being left in cars. A website called Kids and Cars has been created to raise awareness of this issue. According to the site, over 2,200 children are injured or killed in nontraffic events every week. Kids and Cars has also compiled data on convictions in cases of children dying from heat stroke in cars. It found that 28 percent of accidental cases result in convictions and 60 percent when someone knowingly left a child in a car.

Naramore’s Support

Naramore’s family has supported him throughout the ordeal. His mother-in-law, Jan Wright, testified that she learned of Thomas’ death when she received a phone call from a distraught Naramore that consisted of him screaming and wailing and asking her to call 911. Wright testified that Naramore was inconsolable over the next few days, requiring medication to sleep. She testified that she did not place blame on Naramore, saying, “Those things can happen to anybody.”

Jury Acquits Naramore

The jury found Naramore not guilty. Expert testimony likely helped the jury understand that the tragedy of Thomas’ death could have happened to any parent. In addition, the jury may have been influenced by the emotional testimony of Naramore and his family members.

The jury deliberated for three hours. Jurors had difficulty reaching a unanimous verdict. At one point, the vote was 10-2 (presumably in favor of acquittal). The jury later told the judge that the vote was 11-1. The judge told the jury to continue its deliberations, which resulted in the unanimous verdict of not guilty.

Jury Awards $10.2 Million to Mother of Baby Olivia in Forceps Delivery Case

A jury has awarded $10,200,575 to the mother of Olivia Coats, who sued Dr. George Backardjiev and the Medical Center of Southeast Texas, claiming that his use of forceps crushed Olivia’s skull and led to her death, just six days after her delivery. Backardjiev’s defense was that he acted safely and reasonably to deliver Baby Olivia.

Attorney for the Coats family, Malachi Daws, stated, “It’s real tough. On the one hand I think that they are anxious to get this chapter of their lives behind them but on the other hand it is opening up old wounds.”

Olivia’s paternal grandmother, Angie Coats, was present at Olivia’s birth. She reported that Backardjiev told her daughter-in-law, “‘No, you don’t want a C-section. You’ll have a scar.’” Coats claims that Backardjiev tried to turn Olivia with his hands, but “[w]hen he couldn’t do that, he took the small forceps to try to pull the baby out. He kept going and even put his foot up on the bed trying to pull…. He was turning and twisting and she would never come out. He put the forceps one way and the other. When he touched the top and side of the skull, we heard a pop, like clay cracking in pottery and heard her skull crush.”

Backardjiev’s attorney has stated that Olivia’s tragic death was not the result of negligence; rather Backardjiev cared for Olivia’s mother and stayed all evening with her.

The CEO of The Medical Center of Southeast Texas, Matt Roberts, released a statement that Olivia’s death “rips at our hearts and words are insufficient to express how much our sympathies go to this loving family…. While patient privacy and peer review restrictions prevent the hospital from commenting specifically, the hospital administration and independent medical staff immediately initiated a review of all aspects of this case. Our independent medical staff leadership shares in the hospital’s commitment to take all necessary actions to understand why this happened.”

Expert Testimony

Dr. Ferdinand Plavidal, Houston obstetrician and gynecologist, testified on Backardjiev’s behalf. Plavidal has been in practice for over 20 years and has served as President of the Houston Gynecologic and Obstetric Society and on national workgroups for prenatal safety with the Hospital Corporation of America.

Plavidal testified that Backardjiev’s actions were safe and reasonable at the time of delivery. Plavidal said that Backardjiev was likely readjusting or re-positioning the forceps. Plavidal opined that forceps are becoming more challenging because of a lack of education. He testified that when a baby’s head is stuck in the pelvis, the use of forceps is the most effective response. He further testified that there is a misconception that c-sections are safe. Plavidal stated that c-sections can cause serious dangers for moms. Plavidal did admit that Backardjiev’s description of how he used forceps on Olivia is less safe than other methods.

“The Olivia Law”

Olivia’s family is also looking for support in getting a law passed that they refer to as “The Olivia Law.” The proposed law would require obstetricians to inform expectant mothers of the risk of forceps that are used during delivery and to obtain written consent to allow mothers the choice to decline the use of forceps during delivery.

Experts Battle Over Testosterone Levels For Women In Sports

South African runner Caster Semenya won a gold medal at the Rio Olympics this year, but there are many that feel that the 25-year-old should not have been allowed to compete, arguing that she had an unfair advantage because her body produces more testosterone than the average woman.

The History of the Controversy

The International Association of Athletics Federations (IAAF) is the world’s governing body for track and field. The IAAF has historically imposed various types of sex testing to make sure that female athletes aren’t men trying to pass as women or intersex women with masculine traits that might give them an unfair advantage. Between 2011 and 2015, the IAAF had a rule that women must have less than 10 nanomoles of testosterone per liter of blood to compete in women’s events. Healthy men can produce more than 35 nmol/L, while women usually produce less than 3 nmol/L.

Dutee Chand, an Indian athlete, filed an appeal with the Court of Arbitration for Sport against the Athletics Federation of India (AFI) and the IAAF. Chand challenged the validity of the IAAF regulations governing eligibility of females with hyperandrogenism to compete in women’s competition. The hyperandrogenism regulations restricted women with high levels of naturally occurring testosterone from competing in competitive sports. Under those restrictions, Chand was not eligible to compete in in competitive sports.

Chand argued that the hyperandrogenism regulations were discriminatory, based off of flawed assumptions about the relationship between testosterone and female athletic performance, disproportionate to any legitimate objective, and an unauthorized form of doping control.

The Court for Arbitration for Sport suspended the hyperandrogenism regulations for a period of two years and ordered the IAAF to submit further evidence and expert reports regarding “the actual degree of athletic performance advantage sustained by the hyperandrogenic female athletes as compared to non-hyperandrogenic female athletes by reason of their high levels of testosterone.” If the IAAF does not submit such evidence within the next 2 years, the hyperandrogenism regulations will be void.

Expert Opinions

Experts have testified both for and against the IAAF’s hyperandrogenism regulations.

IAAF Expert, Martin Ritzén, a Sweden-based professor who specializes in pediatric endocrinology, testified that, “the probability of a healthy woman reaching 10 nmol/L of testosterone was “zero.” Angelica Lindén Hirschberg, professor of gynecology, testified that she had never seen such a high level of testosterone in someone with healthy ovaries and normal adrenal glands. Ross Tucker, a professor of exercise physiology in South Africa, pointed out that while the IAAF’s rule was in effect, Semenya was required to suppress her testosterone levels and her performance dropped.

However, Richard Holt, a UK-based endocrinologist, pointed to a study showing variation in the testosterone levels of female athletes. The study showed that 32 of 234 female athletes had natural testosterone levels above 2.7 nmol/L, including 11 female athletes who had more than 8 nmol/L. Dr. Katrina Karkazis, a bioethicist at Stanford University, testified that there is not necessarily a big gap between normal male and female ranges of testosterone. She states, “[n]obody is saying that testosterone is not relevant to performance. It is…you can’t say women with higher testosterone levels will necessarily or always do better than women with lower levels. People are overdetermining testosterone’s effects in ways that don’t fit with what we know scientifically.”

Photo Caption: La sud africaine: Caster Semenya, Citizen59, licensed under Creative Commons CC BY-SA 2.0

Discarded Evidence May Lead to Dismissal of a Murder Trial

Ronald Melnik has been in jail for over 5 years awaiting trial for the shooting death of Reza Payan at a 2011 Fort Lauderdale New Year’s party. Melnik was charged with second-degree murder. His defense attorney is now seeking dismissal of that charge based on evidence that has been destroyed.

Motion to Dismiss

In 2015, Melnik’s defense attorney, David Bogenschutz, wanted to independently test the sample of Payan’s blood because he did not trust the toxicology result. The report showed no foreign substances in Payan’s blood, but witness testimony indicated that Payan had consumed alcohol and marijuana that night. Bogenschutz also noticed a crime scene photo that showed a brass vial that later tested positive for ecstasy was located near Payan’s body.

When he found out that the sample had been discarded, he filed a motion to dismiss. In filing the motion to dismiss, Bogenschutz stated, “Respectfully, this is a constitutional blunder of enormous magnitude and far-reaching consequences.”

Bogenschutz was not the first to bring up the constitutional ramifications of discarding potential evidence. According to court filings, in January 2013, a now retired-Broward homicide prosecutor Brian Cavanagh emailed his colleagues that the new disposal policy “presents a significant ‘destruction of evidence’ problem when the defense wants to assert their right under the discovery rules to have a sample inspected and tested by their own expert.”

Standard Practice to Discard Evidence

At the Broward Medical Examiner’s Office, it is standard practice to discard specimens after one year. Officials say this is to save storage space and based on the limited shelf life of refrigerated specimens. This is also in accordance with the state’s administrative code.

The Broward County Medical Examiner who implemented this one-year standard, Dr. Craig Mallak, said that this is based upon state and national medical examiners’ guidelines. He said, “Even at a year, you’re really rolling the dice…This isn’t a static piece of evidence, this is biology.” Mallak is a physician and former Armed Forces medical examiner. He holds degrees in law and medicine from Creighton University and a bachelor of science degree from Michigan State University in criminalistics.

The Broward County Medical Examiner’s office has previously come under criticism for lack of accreditation from the National Association of Medical Examiners, demands placed on staff that detract from death investigations, and poor management of case evidence.

In the nearby Miami-Dade County, the standard policy is to keep bodily fluid toxicology samples for five years. The Palm Beach County Medical Examiner and treasurer of the Florida Association of Medical Examiners, Dr. Michael Bell, also keeps toxicology samples for five years in cases of homicide and undetermined death. However, Bell also states that the five-year period is “probably arbitrary” and not indicative of the quality of samples that are kept for long periods of time. Bell stated, “There may be drugs present that may be detected, but I think the concentrations are likely not to be accurate…Any interpretation beyond ‘yeah, those drugs are present,’ is probably going to be tenuous.”

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