In an unusual move, a team of defense attorneys relied on an expert in legal ethics to help win the freedom of a man who spent 23 years in prison for a double murder he probably did not commit. The case spotlighted ethical problems not just in the prosecution of Lamonte McIntyre, but systemic misconduct on the part of police, prosecutors, and judges in Wyandotte County, Kansas.

The testimony came in a recent hearing seeking a new trial for McIntyre. Before McIntyre’s attorneys finished presenting their case, and perhaps to prevent embarrassing evidence from being heard, the District Attorney handling the case agreed that the court should grant the motion for a new trial. As soon as the court granted the motion, the District Attorney dismissed the charges, resulting in McIntyre’s freedom.

McIntyre’s Conviction

The two victims were smoking crack while parked on a side street in Kansas City. They were shot to death. Lamonte McIntyre was convicted of their 1994 murders on the strength of eyewitness testimony.

McIntyre was arrested after a witness, Ruby Mitchell, picked McIntyre’s photograph out of a photo array. Mitchell claimed she knew McIntyre because he dated her niece, but later admitted that she did not know McIntyre and was confusing him with a different Lamonte.

Detective Roger Golubski scoured the neighborhood in search of another witness. He was able to prompt Niko Quinn, a cousin of one of victims, to identify McIntyre. Quinn later tried to recant, but the prosecutor threatened to take her children if she did not testify against McIntyre.

According to McIntyre’s mother, Golubski had forced her to have sex with him and may have pursued the case against McIntyre because she refused to continue their relationship. An investigative report alleges that Golubski “was known in the community, and even among fellow officers, for sexual encounters with poor and vulnerable black women whom he used as informants.”

McIntyre’s relatives testified that he was with them, a mile away from the shootings, when the murders occurred. Family members of the two victims were convinced that the wrong man had been arrested, but the police focused their efforts on proving McIntyre’s guilt rather than investigating other possibilities. No physical evidence connected McIntyre to the crime, and the police developed no evidence that McIntyre knew the victims or had any motive to kill them.

At McIntyre’s recent hearing, defense attorneys presented evidence that a teenager known as “Monster” had been paid to kill one of the victims in retaliation for a theft of drugs. Unfortunately, both McIntyre’s trial lawyer and his initial post-conviction lawyer made little effort to find evidence of McIntyre’s innocence. Both were later disbarred for failing to provide their clients with diligent representation.

Ethics Expert Testifies for McIntyre

Lawrence J. Fox, a professor at Yale Law School, testified as an expert in ethics. His testimony focused on the unethical behavior of District Judge Dexter Burdette, who presided over McIntyre’s trial, and former Assistant District Attorney Terra Morehead, with whom Judge Burdette previously had a romantic relationship. Neither Morehead nor Burdette disclosed their relationship to the defense.

Fox testified that that a judge’s past sexual involvement with a lawyer handling a case before the judge constituted “serious, serious misconduct.”

“Nothing could taint a trial more than that kind of relationship,” Fox testified.

The testimony of a law professor about what is essentially a legal question is unusual. The judge hearing the case is usually considered to be an expert in the law who needs no guidance from another legal expert. The entire case, however, was unusual.

Other ethical lapses included the police and prosecutor who threatened witnesses if they failed to give the testimony that the prosecution wanted, and the prosecutor’s failure to disclose exculpatory evidence to the defense. However, it was the failure to disclose the relationship between the judge and the prosecutor that Fox emphasized. As he stated in his expert report,

“the concealed relationship obliterated any semblance of judicial impartiality in Mr. McIntyre’s trial and infected every aspect of these proceedings with implicit bias. As a result, Mr. McIntyre was denied his constitutional right to a fair trial.”

Tricia J. Bushnell, Director of the Midwest Innocence Project, said that Fox’s testimony and report “played a critical role in Mr. McIntyre’s case.”

McIntyre Released

The county’s current District Attorney, Mark Dupree, took office this year. Just before the judge who was accused of misconduct was about to testify, Dupree told the court that he agreed McIntyre should receive a new trial.

While Dupree had opposed the defense motion until that point, he told the media that he was convinced that a new trial was necessary after hearing the witnesses testify in person (perhaps because he was unable to damage their credibility during cross-examination). The timing of Dupree’s decision suggests that he did not want the judge to testify in a way that would have further damaged the integrity of the criminal justice process in Wyandotte County.

While refusing to say that McIntyre is innocent, Dupree conceded that the evidence is insufficient to prove his guilt beyond a reasonable doubt. Dupree therefore dismissed the murder charges, setting McIntyre free. A victim of corruption at every level of the criminal justice system in Wyandotte County, McIntyre may have a strong claim to receive compensation for his unjust imprisonment — a claim that expert testimony will no doubt support.

A murder defendant in Tennessee wanted to introduce testimony from a crime scene reconstruction expert to corroborate his testimony that the murders were committed by other individuals. The trial judge excluded that testimony. In a recent decision, the Tennessee Supreme Court reversed the conviction on the ground that the defendant should have been allowed to present the expert testimony.

Prosecution Evidence

Joshua Hunter Bargery was charged in Lake County, Tennessee with two counts of felony murder and two counts of “especially aggravated robbery.” The victims were a 70-year-old man and his 68-year-old wife. Relatives who had last seen the victims alive at about 9:30 p.m. on March 3, 2011 discovered their bodies on the morning of March 4. An autopsy determined that the victims had been stabbed to death.

The victims were not dressed for bed and their beds had not been disturbed. Witnesses testified that the victims usually went to bed between 9:30 p.m. and 10:30 p.m.

A sheriff’s deputy testified that the home had been ransacked and that jewelry appeared to have been scattered across their bed. Police authorities were told that guns were missing from the house. They received a tip that Bargery was selling guns on March 4. Bargery was also trying to sell a camera and a laptop that were stolen from the victims’ home.

A deputy found Bargery, searched his car, and found a knife that appeared to be stained with dried blood where the handle met the blade. He also found costume jewelry in the car’s trunk. The deputy arrested Bargery.

Two forensic scientists employed by the Tennessee Bureau of Investigation processed the crime scene. They collected samples of blood stains from several areas in the house. Subsequent DNA testing indicated that the blood belonged to one or both victims. No other contributors were identified.

Investigators found partial footprints left in blood at the crime scene. A TBI agent testified that the tread pattern on Bargery’s boots was “consistent with” three of the four bloody tread patterns found at the crime scene. Bargery’s boot or one like it therefore “could have” caused the imprint at the crime scene. However, a test of Bargery’s boots was negative for the presence of blood.

One of the TBI experts testified that blood on the knife was consistent with a mixture of blood from the two victims, and that a small blood stain on Bargery’s sweatshirt matched the DNA of one of the victims.

Bargery gave a statement after his arrest. He did not admit that he committed the murders, but he talked about being in a “dream-like state” and described crime scene details that the police claim not to have told him about. Those details, however, were public knowledge before Bargery was arrested.

Defense Evidence

Prior to the murders, Bargery rented a cabin near a lake. Several prosecution and defense witnesses testified that the cabin had been occupied by a man of Hispanic origin. A housekeeper testified that two beds had been slept in. A defense witness also testified that a Hispanic male had been trying to find Bargery before Bargery rented the cabin.

Three alibi witnesses testified that they were with Bargery until about 10:30 p.m. on March 3. Two more witnesses saw Bargery, in the company of his alibi witnesses, retrieve money from an ATM at 10:00 p.m.

Two witnesses testified that Bargery listened to conversations during the evening of March 4 concerning the murders. Those conversations could have supplied the details about the murders that Bargery later related to the police.

All witnesses, including prosecution witnesses, testified that Bargery was a nonviolent, easygoing guy. The witnesses were in universal agreement that committing a murder was inconsistent with his past behavior and character.

Bargery’s Testimony

Bargery testified that he sometimes did favors for his marijuana dealer, Shondell Hill. One such favor involved driving to Memphis to pick up Joel Hernandez, Hill’s marijuana supplier, and bringing him to Lake County. In early March 2011, Bargery rented a cabin for Hernandez, who explained that he did not want the cabin to be in his own name. Bargery was paid for his time in marijuana.

On March 3, Bargery quarreled with Hill because Hernandez wanted Bargery to play a larger role in their marijuana distribution scheme. Bargery felt he was in over his head and decided to end his relationship with Hill. Bargery spent the evening of March 3 smoking marijuana, taking Xanax, and hanging out with his friends.

Bargery got home after 10:30 p.m. Hill called him at 11:42 p.m. Bargery met Hill and, at Hill’s insistence, they drove to the victims’ residence. Outside of the residence, Bargery saw “three Mexicans” holding knives standing next to a gold car. They forced Bargery to enter the home, where he saw a dead body. Hill grabbed a laptop and handed it to Bargery. Hill then told Bargery to gather the guns in the home and take them to his car. Hill placed a knife in Bargery’s glove compartment before they drove away.

Bargery testified that he did not go to the police because the Hispanic men told him that he would be the next stabbing victim if he did not follow their orders. Hill told Bargery to sell the goods that were in his car. Bargery sold what he could and spent the rest of the day taking Xanax and smoking marijuana. He explained that he didn’t tell the police what happened because he was worried about his and his family’s safety.

Hill partially corroborated Bargery’s testimony. Hill admitted that Hernandez was his marijuana supplier, that he had Bargery pick up Hernandez in Memphis, and that he had Bargery rent a cabin for Hernandez. Hill denied any involvement in or knowledge of the victims’ murders.

Defense Experts

Dennis Waller testified as an expert in police investigation. He described the ways in which TBI’s murder investigation was deficient, including its failure to create a crime scene log, to collect samples from all blood stains in the victims’ residence, to dust for fingerprints, and to process the cabin where Hernandez stayed for blood evidence.

Waller also faulted the police for failing to record Bargery’s interview and for failing to ask him if he killed the victims. Dr. Richard Ofsche, an expert on police interrogation tactics, agreed that the interview of Bargery was incomplete and that Bargery’s statement was essentially worthless.

Janice Johnson, an expert in crime scene investigation and blood spatter analysis, echoed Waller’s testimony and added that the police should have measured and photographed blood stains more carefully so that a blood spatter analysis could later be conducted. Dr. Alfanzo Valdez, an expert on street gangs, testified that Hernandez’ tattoos and prison record confirmed he was a member of the Mexikanemi gang, which specializes in home invasion robberies.

Exclusion of Johnson’s Expert Testimony

Janice Johnson would have testified that, in her opinion, more than one perpetrator committed the murders. Given the number of stab wounds to each victim, their defensive wounds, and the absence of evidence of a struggle, Johnson thought it was likely that the two victims were attacked at the same time, a scenario that required the presence of more than one murderer at the scene.

Johnson would have also testified that if one murderer acted alone, that person would have been exposed to a substantial amount of blood spatter. The fact that no significant amount of blood was found on Bargery supported her opinion that Bargery could not have acted alone to commit the murders.

The trial court disallowed Johnson’s proposed testimony because it was outside Johnson’s area of expertise. On appeal, the Tennessee Supreme Court disagreed. Johnson had worked with crime scene investigations and had conducted blood spatter analysis for law enforcement agencies before founding an agency that teaches FBI agents and other forensic evaluators to conduct those investigations. The court determined that she was qualified to give the proposed testimony.

The court noted that crime scene reconstruction experts are routinely allowed to testify for the prosecution. The defense is equally entitled to use expert witnesses. Johnson’s testimony was based on her experience and was consistent with the evidence. The trial court therefore erred by excluding it.

The case against Bargery hinged on whether the jury believed the prosecution’s theory that Bargery acted alone or Bargery’s testimony that the murders were committed by Hernandez and two others. The prosecution repeatedly emphasized that no evidence corroborated Bargery’s testimony that more than one perpetrator committed the murder. Johnson’s testimony would have provided that corroboration. If the jury had considered her testimony, it might have discounted the prosecution’s argument and acquitted Bargery. Since the improper exclusion of expert testimony may have affected the verdict, Bargery was entitled to a new trial.

A 2015 shootout at the Twin Peaks restaurant in Waco, Texas resulted in a charge of “directing organized criminal activity” against Jacob “Jake” Carrizal in McClelland County Court. The prosecution claims that Carrizal is a leader of the Dallas chapter of the Bandidos motorcycle gang, and that he directed its members to bring guns to a confrontation with the Cossacks motorcycle gang. Carrizal is also charged with two counts of engaging in organized criminal activity.

To prove the more serious charge, prosecutors must prove that Carrizal directed a criminal gang to commit an assault upon members of the Cossacks. The defense contends that the Bandidos were attacked by the Cossacks and merely defended themselves. The defense also denies that the Bandidos are a criminal gang.

To prove that “organized criminal activity” occurred, the prosecution is relying on the testimony of expert witnesses. The use of police officers as gang experts has become increasingly common, but the admission of their testimony can be controversial.

The Twin Peaks Shootout

On May 17, 2015, a number of motorcyclists attended a regularly scheduled meeting of the Texas Confederation of Clubs and Independents (COC&I). The Confederation purports to focus on state and local issues, legislation, and events in that are relevant to the biker community. The Coalition has been recognized for its involvement in Motorcycle Awareness and Safety Month.

The Bandidos are active participants in COC&I. The Cossacks are not. The police theorize that the Bandidos were upset that the Cossacks were wearing bottom rocker patches signifying that their territory consisted of the State of Texas rather than specific localities within Texas. Police intelligence reports claim that groups wanting to wear a Texas bottom rocker must get permission from the Bandidos, an etiquette that the Cossacks allegedly breached.

Tensions apparently boiled over when the Bandidos, perhaps provocatively, scheduled a regional meeting of COC&I in Waco, rather than its customary location in Austin. Police allege that the Cossacks viewed Waco as a “Cossacks town” and crashed the meeting because the Bandidos were trying to establish Waco as a “Bandidos town.”

Whatever the cause of the confrontation might have been, the Bandidos and Cossacks were both represented at the Twin Peaks restaurant in ample numbers. The shooting reportedly started after a member of one club complained that the member of another club ran over his foot while he was parking his motorcycle. A fight broke out that was eventually followed by gunfire.

At least a dozen local and state police officers, including a SWAT team, were positioned outside the restaurant, conducting surveillance of the meeting. The police contributed to the gun battle, but they have refused to say how many of the nine deaths and eighteen injuries were caused by police officers. No officers were injured.

About 170 bikers were arrested for engaging in organized crime and about 154 were charged. The charge against Carrizal is the first to go to trial.

Expert Testimony

The defense challenged whether Darren Kozlowski should be allowed to testify as for the prosecution as an expert witness. Kozlowski testified that in thirty years as an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), he infiltrated three “outlaw motorcycle gangs” as an undercover agent. Kozlowski asked for television cameras to be turned off to preserve his undercover status, but pictures of his face had already been streamed live before the judge could enter that order.

Kozlowski had no direct experience with the Bandidos. The judge allowed him to testify about the general characteristics that make up an “outlaw motorcycle gang,” including their self-identification as the 1 percent of motorcyclists who are outlaws. Kozlowski was not allowed to testify about an alleged subculture of “1 percenters” who claim territories and retaliate against other bikers who fail to pay them respect. He was also not allowed to testify that gangs allegedly pool their money for a legal fund that they can use when they get into trouble.

Douglas Pearson is assigned to the ATF motorcycle task force. He also testified as a motorcycle gang expert. Pearson was allowed to present a history of the Bandidos and, rather surprisingly, was allowed to testify that 35{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of all Bandidos in the country have been convicted of a felony. That testimony seems to encourage a finding of guilt by association, but it has little relevance as proof that the Bandidos belong to a criminal gang unless the convictions relate to gang activity.

Pearson testified about the significance of rocker patches worn by the Bandidos. He also testified that the Bandidos have “a rigid chain of command with an identifiable leadership structure.”

Carrizal’s attorney argued that evidence about the kind of organization the Bandidos might have been in the past did not prove that it was presently a criminal gang. The judge allowed Pearson to testify as an expert, but agreed with defense that several charts and photographs that Pearson wanted to show the jury were prejudicial or not relevant to the charges.

Pearson testified that he saw evidence on Carrizal’s cellphone that he’d told other Bandidos to “bring their tools” (guns), not to travel alone, to leave women at home, and not to tolerate disrespect. That evidence, according to Pearson, shows that Carrizal was leading the Bandidos to assault the Cossacks. Pearson admitted, however, that the Cossacks arrived at Twin Peaks wearing bulletproof vests and that they ambushed the Bandidos. That evidence might suggest that Carrizal anticipated violence and merely told club members to prepare for it.

Both Koslowski and Pearson testified that the Bandidos are a “1 percenter” gang and that they fit the ATF’s definition of a criminal street gang. On cross-examination, however, Koslowski admitted that many of those characteristics could be applied to other groups, including law enforcement agencies. Koslowski dismissed the charitable events and Christmas toy runs that the Bandidos organize as “facades.”

Gang Experts

Gang experts are becoming increasingly common as states prosecute crimes under relatively recent laws that define criminal gangs. The gang experts are invariably police officers who, like Kozlowski and Pearson, have arrested many gang members and have sometimes infiltrated gangs. Neutral observers have questioned whether police officers should be allowed to testify as “experts” in any field other than law enforcement, given their lack of training and objectivity. Sociologists study group behavior, but gang experts are not trained as sociologists.

The assumption often made by gang experts (like Kozlowski) is that all gangs are alike, so lack of experience with any particular gang doesn’t matter. Whether that assumption is based on adequate facts and whether it constitutes a reliable methodology under Daubert is questionable, but judges rarely give criminal defendants the same protection against unreliable expert testimony that they give corporate defendants in civil cases.

Gang experts routinely testify that they know gangs are “criminal gangs” — that is, organizations that exist for the purpose of committing crimes — because they have interrogated gang members who confessed that they committed crimes on behalf of the gang. Experts are sometimes allowed to testify to hearsay, but at least one judge has questioned whether hearsay testimony by gang experts violates the Confrontation Clause. The California Supreme Court recently reversed a conviction based on a gang expert’s testimony because the testimony included inadmissible hearsay, some of which violated the Confrontation Clause. If Carrizal is convicted, the prosecutor’s heavy reliance on gang expert testimony is likely to be challenged on appeal.

Update

The jurors in Carrizal’s trial deliberated for 14 hour before advising the judge that they were unable to reach a verdict. The court declared a mistrial based on the hung jury. That outcome does not bode well for the prosecution’s ability to win convictions of the remaining defendants.

A decision by New Jersey’s Appellate Division to reinstate 2,100 Accutane lawsuits has spurred a renewed effort by business groups to persuade New Jersey to adopt the Daubert standard of expert opinion admissibility. The Appellate Division, an intermediate appellate court, concluded that a trial judge improperly excluded the proposed testimony of plaintiffs’ experts to establish that Accutane causes Crohn’s disease.

If the New Jersey Supreme Court decides to review the Appellate Division’s decision, it may decide whether to adopt the Daubert standard. Given the Appellate Division’s analysis of the expert evidence, however, it is not clear that changing the standard would change the outcome. While lawyers for the business community tend to dismiss any expert testimony against a corporate defendant as being based on “junk science,” the expert evidence in the Accutane litigation might well satisfy the Daubert standard.

Accutane Litigation

About 2,100 New Jersey lawsuits allege that the prescription acne drug Accutane, manufactured by Hoffman-La Roche Inc. and Roche Laboratories Inc., caused the plaintiffs to develop IBD, a condition that manifests itself as Crohn’s Disease or ulcerative colitis.

Accutane was first marketed in the 1980s and was withdrawn from the market in 2009. Hoffman-La Roche denies that the drug is dangerous. It asserts that it stopped selling Accutane for “business reasons,” not for safety reasons. The “business reasons” undoubtedly related to the millions of dollars that Hoffman-La Roche has paid to plaintiffs who alleged that they were injured by a dangerous drug.

The manufacturers have had some litigation success, both in winning cases at trial and in convincing appellate courts to overturn jury verdicts that were returned in favor of plaintiffs. Their appellate arguments have primarily focused on the claim that expert evidence was either inadmissible or insufficient to sustain the jury verdict.

Accutane Studies

The New Jersey lawsuits were consolidated in 2003. As they slowly worked their way through the system, plaintiffs relied on a variety of evidence to prove that Accutane caused IBD, including “animal studies, human clinical studies, case reports, class effects, published scientific literature, causality assessments, and biological plausibility.”

No epidemiological studies were available until two studies were published in 2009 and 2010. Neither study found a statistically significant increased risk of developing Crohn’s disease from the use of Accutane. One of the studies found that ulcerative colitis is associated with exposure to the drug. Other studies with conflicting results were eventually published.

Although experimental studies are the “gold standard” of epidemiological studies, none of the studies were experimental. That is, they were not the kind of study in which a test group is given a drug and the control group is not. Experimental studies cannot ethically be conducted when the studied drug might be dangerous.

The studies of Accutane were observational studies that either compared people with IBD to people without IBD to determine whether one group was more likely to have taken Accutane, or compared people who took Accutane to people who didn’t to determine whether one group was more likely to develop IBD.

Dr. Kornbluth’s Expert Opinion

The trial court excluded the testimony of two plaintiffs’ experts. The first, Dr. Asher Kornbluth, is board-certified in gastroenterology. He is a professor of medicine at Mount Sinai, the preeminent hospital for IBD, and has specialized in Crohn’s disease for 27 years. His expertise was not challenged.

Dr. Kornbluth concluded that Accutane can cause Crohn’s disease in humans. He based that conclusion on his personal experience in treating thousands of patients with the disease and on a variety of studies and articles. He considered animal studies, medical reports showing that the resumption of Accutane use worsened the disease, and side effects caused by related drugs. Dr. Kornbluth determined that a strong association between Accutane and Crohn’s disease is confirmed by scientific articles, MedWatch reports, and causality assessments.

Dr. Kornbluth placed less reliance on epidemiological studies, concluding that most of them have been fundamentally flawed. He nevertheless found some evidence in those studies that pointed to a positive association between the drug and Crohn’s disease.

Recognizing that an association does not prove causation, Dr. Kornbluth relied on the Bradford Hill criteria to determine whether a causal link exists. The criteria for causation are widely used in the scientific community, although the application of those criteria in any particular case might be disputed. Dr. Kornbluth concluded that the Bradford Hill criteria supported the conclusion that Accutane causes Crohn’s disease.

Dr. Madigan’s Expert Opinion

Dr. David Madigan is a statistician who has substantial experience with biostatistics. He explained why, in his opinion, the epidemiological studies upon which Hoffman-La Roche relied were biased in favor of finding the absence of a causal link between Accutane ingestion and Crohn’s disease.

He criticized the studies for failing to observe patients for a sufficient period of time after their Accutane use to detect whether those patients developed Crohn’s disease. He also concluded that, for reasons such as insufficient sample size, the studies had insufficient statistical “power” to find a statistically significant association of Accutane use with Crohn’s disease if one existed. He also concluded that using a “meta-analysis” to account for small sample sizes would be inappropriate because a meta-analysis of several biased studies does not make bias disappear.

Finally, Madigan conducted a “disproportionality” analysis of drugs in the FDA database, using techniques that are routinely used by the FDA to flag potentially dangerous drugs. He found that taking Accutane, as opposed to other drugs, was associated with an increased risk of developing Crohn’s disease. He also noted that a similar disproportionality analysis conducted on the World Health Organization database found that people who took Accutane were nineteen times more likely to develop Crohn’s disease than people who did not.

The experts for Hoffman-La Roche disagreed with Drs. Kornbluth and Madigan. They concluded that the epidemiological studies should be given greater weight than the other evidence because they were scientifically sound and a “higher level” of evidence. Notably, one of those experts admitted that during her expert testimony in a different case, she used the same methodology that she faulted Dr. Kornbluth for using in this case.

Appellate Court’s Decision

According to the appellate court, the issue was “whether Kornbluth’s causation testimony and Madigan’s statistical analysis testimony was sufficiently reliable in the field of scientific research to be admitted.” New Jersey law uses a variation of the Frye standard that requires an expert’s scientific theory to be generally accepted in the scientific community, while relaxing the standard in toxic tort cases. In those cases, “a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.”

Applying that standard, the Court of Appeal rejected the trial court’s description of Madigan as “an expert on a mission” and its criticism of Kornbluth’s approach as “being less convincing than [the defendants’ expert’s] analysis as to causation.” The appellate court concluded that both experts employed a methodology and used data that would be reasonably relied upon by experts in their fields, and faulted the trial judge for making credibility determinations that should be left to the jury.

Will the Supreme Court Adopt Daubert?

Hoffman-La Roche asked the New Jersey Supreme Court to review the appellate court’s decision. A number of business groups have filed amicus briefs in support of that request, seizing the opportunity to persuade New Jersey’s highest court to adopt the Daubert standard.

The business community tends to see Daubert as a business-friendly standard for evaluating expert testimony. Business groups have long advocated the Daubert standard as a way to prevent juries from relying on “junk science” offered by plaintiffs.

Yet the Appellate Division acknowledged and addressed the importance of applying a standard that excludes junk science. The court said that the purpose of reviewing expert testimony for reliability “is to weed out ‘junk science,’ not to shield jurors from hearing expert testimony that is scientifically-based but unpersuasive to the trial judge.” That analysis is perfectly consistent with Daubert.

In fact, it isn’t clear that the New Jersey rule differs greatly from the Daubert standard. The heart of both rules is the reliability of the expert’s methodology, as opposed to the expert’s credibility. The Appellate Division’s analysis focused on the reliability of the experts’ methodologies. The analysis probably would not have been significantly different if the court had applied the Daubert standard.

As is often the case in battles about Daubert, rhetoric about “junk science” may have little to do with the expert testimony that courts are asked to admit or exclude. Whatever the groups that filed amicus briefs may hope to achieve, it seems clear that the specific facts of the case before the court have nothing to do with junk science.

Allegations of legal malpractice must typically be supported by the opinion of an expert witness. A legal professional will usually provide an expert opinion that the lawyer who has been sued failed to provide the standard of representation that a reasonably competent lawyer would provide.

In addition to proving the lawyer’s negligence, a plaintiff must also prove that the negligence harmed the plaintiff, usually by causing the plaintiff to lose a case that the plaintiff should have won. Causation can be difficult to prove because it is hard to predict the future of litigation. Experts are again called upon to explain the likely outcome if the lawyer had not erred.

In a Texas case, the trial court and an intermediate appellate court concluded that the expert’s opinion as to causation was “conclusory” and therefore did not entitle the plaintiff to a trial. The Texas Supreme Court, however, reversed the Court of Appeal’s decision after finding that the expert provided sufficient reasons to believe that the outcome would have been better if the trial attorney had not been negligent.

Facts of the Case

Norma Gonzalez owns and manages Starwood Management, LLC, a charter aircraft company. One of her employees registered an aircraft in Starwood’s name. The Drug Enforcement Administration (DEA) seized the aircraft because it believed that the employee who registered it was not a U.S. citizen. A federal law prohibits a business entity from registering an aircraft unless at least 75{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the persons who own and control it are U.S. citizens. The DEA concluded that the employee was a controlling member of Starwood because he signed the registration as a Starwood “manager.”

Starwood’s insurer retained Attorney Don Swaim to contest the seizure. Swaim followed two strategies. First, he sued the DEA in federal court. However, since he failed to provide DEA with a verified claim prior to filing suit, the lawsuit was dismissed. The law makes such a claim a precondition of challenging a forfeiture in court.

Second, Swaim petitioned DEA for remission or mitigation. He asserted an “innocent owner” defense and argued that Starwood had a legal right to ownership of the aircraft.

The “remission and mitigation” route imposes substantial barriers to a successful return of the property. The burden is on the property owner to show its entitlement to the property and, even if the property owner meets the burden, the DEA is entitled to keep the seized property if it chooses to do so. The DEA denied the petition.

Challenging the seizure in a lawsuit places the burden on DEA to show that the seizure was justified. That route has a much better chance of success if, in fact, the seizure was not justified. Swaim’s blunder may therefore have been costly for Starwood.

The DEA also seized six other aircraft from Starwood. The insurer retained a different attorney, George Crow, to contest those seizures. Crow complied with the notice requirements and sued DEA. In the five cases that were resolved, Starwood obtained a return of the aircraft.

Legal Malpractice Claim

Gonzalez then sued Swaim for legal malpractice, alleging that Starwood lost its aircraft because Swaim neglected to file a notice of claim. Swaim moved for summary judgment, arguing that Gonzalez could not prove that his neglect caused the loss of the aircraft.

Gonzalez opposed summary judgment with the affidavit of George Crow. The affidavit explained that Crow was able to obtain the return of five other aircraft (the sixth case was still pending at the time) within a few months after filing lawsuits because the DEA’s case was weak. He opined that Swaim could have obtained the return of the aircraft if he had complied with the claim requirement, because the facts in the case Swaim handled were similar to the facts in the case that Crow handled. Another attorney supplied an affidavit that essentially tracked Crow’s.

The trial court refused to consider the affidavits and granted summary judgment in favor of Swaim. The Texas Court of Appeal affirmed that decision, concluding that the affidavits were conclusory because they did not make a “case-by-case comparison” of the facts in other aircraft seizure cases to the facts in the case that Swaim handled.

Texas Supreme Court Decision

The Texas Supreme Court noted that a plaintiff in a legal malpractice case will usually need to rely on an expert opinion to prove causation. The expert’s opinion must be probative rather than conclusory. To avoid being conclusory, the expert must explain how and why negligence caused the injury.

The state supreme court rejected the lower court’s suggestion that a case-by-case comparison to other cases is always necessary to prove causation in a legal malpractice case. The court reasoned that an expert’s affidavit is adequate if it explains why the expert reached the opinions that are expressed.

The lower courts erred by focusing on the lack of detail that Crow provided to support his opinion. Details go to the quality, not the adequacy, of an expert opinion. Crow explained that he followed the same methodology five times for the same client in cases with similar facts, and prevailed each time. His high success rate initiating lawsuits after filing a verified claim made it reasonable for Crow to conclude that Swaim would also have succeeded if he had followed the correct procedure.

Texas cases that require a case-by-case comparison of facts involved claims that a lawyer settled a case for less than it was worth. Those cases cannot be evaluated without comparing the plaintiff’s injury to the injuries sustained by plaintiffs who obtained higher settlements. Gonzalez’ case, on the other hand, did not require the same kind of comparison because causation was based on the failure to follow a procedure, and the differences in specific facts (such as the models of the aircraft that were seized) were not relevant to whether the plaintiff would have succeeded if the correct procedure had been followed. Crow’s reference to the other cases he handled, coupled with documents attached to the affidavit that explained why DEA seized those aircraft and why it eventually returned them, provided a sufficient factual basis to support his opinion.

The court also rejected Swaim’s argument that Crow could not establish that he would have won the case if DEA had taken the case to trial. Since DEA did not do so in the five cases that Crow handled, Crow had a reasonable basis for his opinion that DEA would not have done so in the case that Swaim handled. An expert is not required to address remote contingencies. All that is required to establish causation is to show that the outcome would probably have been more successful if malpractice had not occurred. Crow’s affidavit did that, so summary judgment should not have been granted.