Author Archives: T.C. Kelly

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

Arson Expert Challenged by Ohio Prosecutor

Arson Expert Challenged by Ohio Prosecutor

A defendant who is charged with aggravated arson in Ohio wants to call a fire expert to support his theory of how the fire started. The prosecution filed a Daubert motion that challenged the expert’s qualifications to testify and his methodology. The trial court has not yet indicated how it will rule.

Facts of the Case

A fire in Middleport, Ohio destroyed two businesses in May 2016. The fire occurred at night, after the stores were closed. Apartments on the second floor of the two buildings were unoccupied and no lives were lost.

The state fire marshal determined that the fire was suspicious. Reports at the time of the fire suggested that someone started it by lighting a gas can and flinging it into one of the buildings or into an alley behind the buildings.

The Major Crimes Task Force received a tip that the fire was started intentionally. Police arrested Keith Day after questioning witnesses at the scene. A grand jury later returned an indictment for two counts of arson.

Witnesses apparently told the police that Day made threatening statements after being kicked out of a tavern and that the tavern may have been the actual target of the fire.

Qualifications of Defense Expert

Ohio is essentially a Daubert state, although the state’s judicial decisions suggest that Ohio judges may have more flexibility than federal judges in determining the reliability of expert testimony. Judges are nevertheless required to determine whether an expert’s opinion meets a threshold standard of reliability. If it does not, the judge must exclude the testimony.

The prosecution challenged the qualifications of the defense expert. Ohio follows the general rule that an expert witness is qualified to testify when the expert has scientific, technical, or other specialized nature that is beyond the knowledge or experience of lay persons.

The prosecution apparently agrees that the defense expert, Dr. David Manuta, was a qualified expert in the past. Dr. Manuta has a Ph.D. in chemistry and has given expert testimony in trials or depositions in dozens of civil and criminal cases.

The prosecution argues, however, that Dr. Manuta is no longer “up to speed” and is therefore not qualified to testify as an expert. That argument is based in part on the fact that Dr. Manuta has not published any recent articles in his field of expertise. Publication, however, has never been seen as a requirement that determines whether an expert is qualified to testify.

The prosecution also made the following argument based on Dr. Manuta’s testimony at a Daubert hearing. According to the prosecutor:

Dr. Manuta was not able to recall fundamental rules from the National Fire Protection Association (NFPA). NFPA is the “standard” for such science according to Dr. Manuta. Yet, on cross examination he said there was not a level of certainty or even varying levels of certainty as outlined in the NFPA Manual. Level(s) of certainty are crucial to a scientific expert testifying. It wasn’t until the state’s attorney handed him a copy to review that he realized the different levels.

Failing to recall a specific detail in a manual may affect the credibility of an expert’s testimony at trial, but no witness has perfect recall. The prosecutor can use Dr. Manuta’s failure of recollection to challenge his credibility at trial, but Ohio law makes clear that the jury, not the judge, should decide whether an expert is credible.

It seems unlikely that an Ohio judge would disallow an expert’s testimony because his recollection of details was faulty during a Daubert hearing. This case nevertheless illustrates the importance of preparation. If experts rely on professional or scientific standards, they should review those standards carefully before testifying.

Bias

The prosecution argued that Dr. Manuta is biased because he “testified that he was hired by Defense Counsel to help Defendant, paid to help Defendant, and started the scientific method with the idea to help Defendant.” Of course, all expert witnesses are hired and paid in the hope that they will provide helpful testimony to the party that hired them.

An expert’s search for the truth is not inconsistent with an attempt to determine whether the truth will assist the party who hired the expert. In the absence of evidence that Dr. Manuta slanted his conclusions to favor the defense, the question of bias is one that the jury can consider as it evaluates Dr. Manuta’s testimony. The prosecutor’s assertions of bias should not prevent the expert from testifying.

Methodology

The prosecution’s final argument is that Dr. Manuta did not conduct any experiments to verify his hypothesis as to how the fire started. Yet expert opinions can be based on a review of existing data, and if that data is sufficient to support the expert’s theory, there may be no need to conduct independent experiments.

Press accounts are a bit murky as to the data that Dr. Manuta relied upon and the conclusions he drew from that data. Still, the judge will likely reject this challenge unless there is a clear showing that Dr. Manuta’s theory as to the fire’s origin could only be deemed reliable if it is supported by experimental results.

Prostitution written on a sign

Appellate Court Affirms Exclusion of Expert Testimony Regarding Culture of Prostitution

The Court of Appeals for the Third Circuit rejected the government’s contention that its expert witness in the “culture of prostitution” should be permitted to testify in an interstate prostitution trial. While the appellate court agreed with the district court that the expert testimony was not relevant, it also agreed that the district court might be entitled to admit the testimony if the defense implies that the prostitutes were not induced to traveled across state lines by the defendants.

Facts of the Case

Four men from Chambersburg, Pennsylvania were charged with operating an interstate prostitution ring using underage girls. News reports state that the men are accused of operating an escort service that advertised its services on an internet site that features classified advertising.

The men reportedly furnished prostitutes to clients in Maryland, Virginia, West Virginia, Florida, Rhode Island and Washington, D.C. Transporting individuals across state lines for the purpose of prostitution is a federal crime. It is a more serious crime when the individuals are minors. The interstate nature of the activity allowed the government to charge the men with a number of federal sex trafficking offenses.

Police investigators claim that the men compensated the prostitutes, some of whom were teenage girls, with drugs rather than cash. The ring allegedly operated from 2012 until the men were arrested in 2015.

Expert Witness

The government notified the defense that it intended to call Dr. Sharon Cooper as an expert witness to provide background on the culture of sex trafficking. The government did not claim that Cooper’s testimony would prove any fact required to convict the four men. Rather, the government argued that the testimony would “de-mystify” the prostitution subculture and would provide “education and context” for the jury.

The defense objected that the proposed testimony would not be relevant. For that reason, it asked the court to bar the government from presenting Cooper’s testimony. The district court agreed that the testimony was not relevant, although it ruled that the testimony might become relevant after the government presented evidence of the alleged crimes.

The U.S. Court of Appeals for the Third Circuit agreed to hear the government’s pretrial appeal of the district court’s ruling.

Court of Appeals’ Decision

The Court of Appeals affirmed the district court’s ruling after reviewing the decision under the Daubert standard. Daubert requires the district court judge to act as a gatekeeper to prevent the jury from hearing expert testimony that does not satisfy the dictates of Rule 702 of the Federal Rules of Evidence.

The Court noted that Rule 702 conditions the admissibility of expert testimony on three standards: the expert must be qualified; the expert’s testimony must be reliable; and the testimony must assist the jury.

Most Daubert challenges go to question of reliability. In this case, however, the expert’s proposed testimony did not satisfy the third standard because it would not have helped the jury decide whether the defendants were guilty.

The third standard requires expert testimony to be relevant, but the Court noted that the standard “is higher than bare relevance.” To be helpful, the expert’s scientific or technical expertise must help the jury understand the facts or decide a disputed issue. Expert testimony that is not related to a fact that the jury must decide is not helpful.

In this case, the disputed issue was whether the defendants were guilty of sex trafficking. On its face, the expert’s testimony about the subculture of prostitution would not help the jury decide whether the defendants transported women across state lines with the intent that they would engage in prostitution.

Potential Admissibility

The government relied on a decision from a different circuit that affirmed a conviction after an expert testified about the reasons why prostitutes might submit to the direction of a pimp. The testimony was relevant only because cross-examination of the prostitutes implied that they traveled with the defendant voluntarily and that they were working independently, not at the direction of the defendant. The expert testimony rebutted the inference that the women would not have remained with the defendant if, as they claimed, he abused them and forced them to travel across state lines to engage in prostitution.

Relying on other federal court decisions as precedent, the appellate court decided that it would be premature to allow the expert’s testimony unless and until it became relevant. If cross-examination of the prostitutes or other evidence implies that no person in the position of the prostitutes would have submitted to the defendants’ directions, expert testimony to explain why prostitutes obey their pimps might become relevant. Still, the judge will need to decide whether an expert’s explanation of the behavior of prostitutes will add anything helpful to the prostitutes’ explanation of their own behavior.

Death in the hospital

Experts Disagree in “Dr. Death” Trial

The latest physician to be dubbed “Dr. Death” by the media was recently found guilty of aggravated assault. A Dallas jury rejected the testimony given by his expert witness and determined that he recklessly maimed a 74-year-old patient. The jury sentenced the former surgeon to life in prison.

Facts of the Case

Christopher Duntsch practiced as a neurosurgeon in Texas, botching one surgery after another. His failures include:

  • Floelle Brown died of a stroke after Duntsch sliced a vertebral artery during surgery.
  • Kellie Martin died of massive blood loss after Duntsch cut through her spinal cord and slashed a major artery.
  • Lee Passmore lives with chronic pain and his ability to walk has been seriously impaired since Duntsch removed a herniated disk and mispositioned the cage that replaced it.
  • Barry Morguloff, another victim of a mispositioned cage during a spinal fusion, suffered from a bone chip that pushed into a nerve root, leaving him unable to move his left foot.
  • Jerry Summers has been unable to move his arms or legs since Duntsch performed neck surgery.

While Duntsch was arrested for injuring or killing several victims of his errant surgeries, the prosecution decided to focus on Mary Efurd. The 74-year-old woman was in excruciating pain after Duntsch performed surgery to fuse two of her vertebrae.

Duntsch was taken to trial on a single count of aggravated assault. The aggravating factor was Duntch’s abuse of an elderly victim. To obtain a guilty verdict, the prosecution was required to prove that Duntsch “intentionally, knowingly, recklessly, or with criminal negligence” injured an elderly person.

The decision to charge a physician with a crime for the alleged abuse of a patient during surgery was unusual and perhaps unprecedented. The jury, however, determined that the facts fit the crime.

Evidence that Duntsch injured other patients was introduced over defense objections. Duntsch’s lawyer argued that the trial was about Efurd’s surgery and that Duntsch’s performance in other surgeries was not relevant. The prosecution prevailed in its argument that the collective history of Duntsch’s surgeries was relevant proof that Duntsch routinely acted with reckless disregard of the appropriate standard of surgical care, and that the outcome of Efurd’s surgery could not be attributed to an ordinary mistake in light of Duntsch’s history.

Prosecution’s Expert Testimony

To prove that Duntsch acted with reckless disregard of the appropriate standard of care, the prosecution called several of his former patients as witnesses. Their emotional testimony may have tipped the scales against Duntsch, but more relevant testimony about Duntsch’s recklessness came from the prosecution’s expert witnesses.

Dr. Robert Henderson, who performed surgery on Mary Efurd to correct Duntsch’s error, testified that he “found implants placed in muscle instead of on bone, a screw drilled into her spinal cavity and a nerve root that had been amputated.”

Vascular surgeon Randall Kirby, spine surgeon Luis Mignucci, and neurosurgeon J. Michael Desaloms all testified that Duntsch’s errors were not, as the defense suggested, ordinary mistakes that any surgeon could commit. Mignucci agreed that “bad outcomes happen all the time” but refused to characterize Duntsch’s performance as a mistake.

Defense Expert

Conceding the obvious, Duntsch’s attorney told the jury that Duntsch was “not a skilled surgeon.” He blamed the errors on a chaotic operating environment rather than intentional or reckless behavior. Duntsch’s apparent indifference to the harm he caused and his decision to keep operating probably made that argument hard for the jury to accept.

Duntsch called just one witness in his defense. Testifying as an expert, Dr. Carlos Bagley, the director of the Neurological Surgery Spine program at UT Southwestern, agreed that Duntsch’s performance was “sub-optimal.” He affixed blame on Baylor Regional Medical Center for failing to report Duntsch after Kellie Martin bled to death and on Dr. Kevin Foley for giving Duntsch a positive reference despite knowing of his adverse outcomes.

The University of Tennessee Health Science Center allowed Duntsch to practice despite knowing that his skills were questionable, and the Dallas Medical Center CEO did not inform the hospital’s chief medical officer of a bad outcome in one of Duntsch’s surgeries. The Texas Medical Board allowed Duntsch to keep his license for more than a year after his negligence was first reported.

In short, according to Dr. Bagley, the entire system failed, not just Duntsch.

Verdict and Sentence

The attempt to blame the system for Duntsch’s failures did not relieve Duntsch of responsibility in the eyes of the jury. After a 13-day trial, the jury deliberated only a few hours before finding Duntsch guilty.

A felony defendant in Texas can elect to have the jury impose sentence. Duntsch did so and the jury sentenced him to life in prison.

Indiana US State Law Legal System Concept

Indiana Allows Police Officer to Testify as Facebook Expert

A man convicted of stalking a woman by sending her Facebook messages from several different accounts complained on appeal that a police officer should not have been allowed to give expert testimony linking him to the Facebook messages. The Indiana Court of Appeals concluded that the officer’s expert testimony was properly admitted.

Facts of the Case

Christopher Johnson met a woman identified as D.K. in 2012. He repeatedly contacted her by means of telephone calls, texts, and social media. D.K. did not welcome Johnson’s attention and asked him to stop. When he did not, D.K. obtained a protective order that prohibited further contact. She obtained the order in May 2014 but the contact continued.

Johnson went to D.K.’s home in 2015. When he was arrested for violating the protective order, he denied that he knew the order existed. The police then served him with the order and released him.

Johnson went to D.K.’s home twice after being served with the protective order. On the second occasion, Johnson was arrested. He was charged with multiple counts of stalking for visiting D.K.’s home, for texting her, and for sending Facebook messages both before and after the protective order was entered.

Expert Testimony

The Facebook messages were sent to D.K. from several accounts. The prosecution alleged that the accounts all belonged to Johnson, who opened them using false identities.

To prove that claim, the prosecution offered the expert testimony of Sergeant Steven Schafer, a member of the Computer and Digital Forensic Unit of the Indianapolis Metropolitan Police Department. He testified as an expert in “forensic analysis of social media records and digital trails.”

The defense objected that Schafer was not qualified to link Johnson to the Facebook accounts. The trial court overruled that objection and permitted Schafer to testify.

Schafer testified that he attributed five Facebook accounts to Johnson that were not in Johnson’s name. He concluded that the accounts belonged to Johnson because each account user logged into Facebook from the same IP address. In addition, each account was associated with the same “cookie” on Johnson’s computer. Those facts caused Schafer to conclude that the same person, presumably Johnson, logged into each Facebook account from Johnson’s computer.

The defense presented no expert testimony to counter Schafer’s testimony. Johnson was convicted. On appeal, Johnson argued that the trial court erred by admitting Schafer’s expert testimony.

Appellate Court’s Ruling

Schafer is not a computer scientist. He learned about the significance of IP addresses and cookies from “classes put on by … the Indiana State Police cyber crimes unit,” a Secret Service class on internet investigations, “several small classes,” online training provided by Internet Crimes Against Children, and on-the-job training which included an analysis of social media records in 300 or more cases.

The appellate court’s decision does not reveal whether the classes were taught by computer scientists or other qualified personnel. The court of appeals nevertheless concluded that the trial court did not abuse its discretion in allowing Schafer to testify as an expert.

Although the court of appeals’ analysis is cursory, it seems likely that Schafer’s training was sufficient because the concepts of internet cookies and IP addresses are so widely understood that even someone with rudimentary training would be able to explain them. In addition, the court noted that the case was tried to a judge, not a jury. Judges are presumably less likely to be swayed by police officers who are labeled as “experts” than juries might be.

If the case had involved more complex technological issues, the outcome might have been different. Presumably, if there had been a serious dispute about the accuracy of Schafer’s testimony, the defense would have called a computer scientist as an expert witness to contest Schafer’s conclusions.

Polar Bear Analogy

A second issue on appeal addressed one of Schafer’s conclusions. When asked how likely it was that five different people would have used a device that shared the same Facebook cookie and the same IP address, Schafer answered that it was less likely “than being struck by lightning while hitting the super lotto and being bitten by a polar bear at the same time.”

The answer was colorful but not supported by facts. Schafer is not a statistician but the question called for a probability analysis. An honest answer would have been “I don’t know.” The appellate court nevertheless concluded that Schafer’s answer was merely an analogy, not a statistical analysis. The opinion does not explain how an inaccurate analogy that isn’t grounded in fact could be relevant evidence.

Schafer’s answer could not have been helpful to the judge because the judge could just as easily have drawn the same conclusion that several different people would be very unlikely to send similar messages to the same person from the same computer. Since Schafer wasn’t qualified to give an expert statistical opinion and since his lay opinion was not helpful, he should not have been allowed to answer the question.

The defense, however, did not object to the question, which made it possible for Schafer to answer. The defense objected when the prosecution asked whether Schafer could say definitively that one person sent all the Facebook messages, and the judge sustained the objection because Schafer clearly did not have any basis for offering an expert opinion. The judge might also have sustained an objection to the probability question if one had been made.

In the absence of an objection, Johnson needed to show that Schafer’s answer deprived him of a fundamentally fair trial. Since there was no reason to believe that Schafer’s colorful answer influenced the outcome of the trial, Johnson was not entitled to reversal of his conviction.

Lessons Learned

Two lessons should be drawn from this decision. First, experts should not express opinions they are not qualified to give. Police experts have been criticized in some instances for their zealous desire to help the prosecution, and this appears to be another case of a police expert going too far.

Second, when experts are qualified in a narrow field (such as computer forensics) and are asked for a question that requires additional expertise (such as a probability analysis), the opposing attorney should object. In the absence of an objection, it is difficult to base an appeal on an expert’s improper answer.

Ohio wooden Mallet

Ohio Suspends Crime Lab Experts

Prosecutors in state courts often depend on expert witnesses who are employed by state crime labs. Some of those labs have been criticized because the experts feel pressured to slant their testimony in ways that favor the prosecution. The labs have also been criticized for hiring experts without verifying their credentials and for failing to give the experts the training they need. In addition, state crime lab analysts have been criticized for failing to follow lab procedures to assure that test results are accurate.

Ohio is the most recent state to experience crime lab controversy. The lab has been subject to fourteen internal investigations in the last five years, but the Ohio Bureau of Criminal Investigation recently made its escalating concerns about crime lab employees clear by suspending five analysts and firing another.

Ohio Crime Lab Controversy

The Columbus Dispatch reports that the Ohio Bureau of Criminal Investigation “suspended five employees at state crime labs and fired another for not properly testing drug evidence collected by law enforcement.” The employees were forensic scientists or their supervisors.

The employee who was fired committed several violations of lab policy, including “egregious case documentation.” One suspended employee failed to make a proper record of drug test results 23 times over a 6-month period. Another employee was “dishonest when summarizing findings.”

Prior to the most recent suspensions, a BCI lab analyst was suspended because she deliberately contaminated evidence before it could be tested for DIA. The employee, a fingerprint examiner, was allegedly envious because “the DNA section gets all the attention.”

While BCI’s director claims the mistakes did not compromise any criminal investigations, he may be putting a favorable spin on bad news. Defense attorneys who cross-examine crime lab experts during trials are likely to point out that experts who fail to follow one procedure may be failing to follow other procedures, calling the trustworthiness of their testimony into question. Certainly, the employee who was dishonest when summarizing test results has compromised his integrity and may therefore be less effective as an expert witness.

Lack of Objectivity

The latest round of discipline follows the Dispatch’s reporting in October 2016 of issues surrounding the employment of G. Michele Yezzo, a forensic scientist who retired in 2009. Yezzo was criticized by colleagues because “she wasn’t objective in her work and wanted to please law enforcement.”

Concerns that Yezzo slanted her testimony have prompted the Ohio public defender’s office and the Ohio Innocence Project to review thousands of cases in which Yezzo’s work contributed to a conviction. Yezzo testified as an expert witness in hundreds of those cases. At least one prisoner has been freed as a result of Yezzo’s misconduct.

Other convictions may be jeopardized, although most of the evidence that Yezzo tested was destroyed after the cases ended. If Yezzo lied about the test results in those cases, defendants may have a difficult time proving their innocence.

Yezzo’s retirement, however, was not prompted by her dishonesty, but by her failure to pass a proficiency test after 33 years of employment. Until that point, Yezzo’s competence was apparently not a concern to BCI, as long as she gave testimony that supported the prosecution.

Crime Lab Reform

Ohio Attorney General Mike DeWine contends that BCI is a professional and “ethically sound” organization. That contention is at odds with news reports of crime lab evidence that has been “lost, mishandled and contaminated.”

BCI Director Thomas Stickrath says those problems are being taken seriously, as the recent suspensions of lab personnel demonstrate. He says he has implemented tougher standards “to make sure that Ohio is on the forefront of forensic science.”

Solving the problem, however, might demand more than better training and closer supervision of experts. Crime lab personnel told the Dispatch that BCI discourages employees from reporting misconduct by other employees. Supervisors and scientists reportedly retaliated against employees who called attention to violations of procedures or standards. Meaningful reform will require a change in the crime lab’s culture as well as improving the professional competence of its expert employees.

Car Crash

Engineering Expert Not Required to Test Alternative Product Design Before Testifying

When product liability cases are based on the claim that a product was defectively designed, plaintiffs typically offer proof that a better design would have produced a safer product. In Quilez-Velar v. Ox Bodies Inc., the Court of Appeals for the First Circuit was asked to decide whether an expert witness should be permitted to testify about an allegedly safer alternative design when the expert had not tested that design. The Court affirmed the decision of the federal District Court of Puerto Rico to permit the expert testimony.

Facts of the Case

Maribel Quilez-Bonelli was driving a Jeep Liberty on a highway overpass in the City of San Juan, Puerto Rico. Maribel struck the rear of a truck that was either stopped or moving very slowly. The truck was owned by the Municipality of San Juan and was operated by San Juan employees.

Since heavy trucks are made to ride higher off the ground than cars, a car that rear-ends a truck may roll under the truck. When that happens, the top of the car is usually destroyed, resulting in fatal injuries to the driver and passengers.

Maribel’s Jeep traveled under the truck. The truck body hit Maribel in the head. She died from her injuries.

Wrongful Death Lawsuit

Most commercial trucks are required to have rear underride guards. An underride guard hangs down from the back of the truck. Its purpose is to keep a car from passing beneath the truck in the event of a rear-end collision. The San Juan truck had a rear underride guard that was manufactured by Ox Bodies, Inc., but the underride guard failed to prevent the Jeep from rolling under the truck.

Maribel’s husband and other family members sued the Municipality of San Juan and certain other defendants in a Puerto Rico court. They eventually sued Ox Bodies in federal court. They alleged that the rear underride guard attached to the back of San Juan’s truck was defectively designed.

A trial was held in the federal case. The judge instructed the jury that if the product’s design caused Maribel’s death, the burden was on Ox Bodies to prove that the benefits of the design outweighed its risks. The judge also instructed the jury that it could consider the feasibility of alternative designs in making that decision.

The jury found Ox Bodies liable and awarded Maribel’s family $1.2 million in wrongful death damages. The jury found that Ox Bodies was 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} at fault for the accident and that the San Juan employees were 80{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} at fault. The jury assigned no negligence to Maribel.

Ox Bodies appealed. Among other grounds, Ox Bodies contended that the trial judge should not have allowed Maribel’s expert witness to testify about an alternative design that could have made the underride guard safer.

Daubert Challenge

Before the trial, Ox Bodies filed a Daubert motion to exclude the testimony of Perry Ponder, a mechanical engineer who testified as an expert witness for Maribel’s family. Ponder has professional experience designing, testing, and teaching about underride guards.

According to Ox Bodies, Ponder’s report included no scientific analysis or calculations to support his opinion that an alternative design would have produced a safer underride guard. Ox Bodies also complained that Ponder did not actually construct and test the design that he believed to be safer.

The trial court did not hold a Daubert hearing because Ox Bodies did not ask for one. Instead, Ox Bodies relied on Ponder’s deposition testimony and expert report. The court ruled that Ox Bodies failed to demonstrate that Ponder needed to conduct additional calculations or testing in order to reach an opinion about the comparative safety of an alternative design. The court therefore denied the motion to exclude Ponder’s testimony.

Ponder’s Trial Testimony

At trial, Ponder testified that the underride guard’s design was defective because it left 16 inches on both sides of the truck’s rear end with no protection and because the underride guard was not sufficiently braced against potential impacts. He also opined that the crash protection built into the Jeep was rendered ineffective because the Jeep went under the truck instead of being stopped by the underride guard.

Ponder testified that a guard that covered the entire width of the back end, supported by diagonal bracing and a vertical support, would have been a safer design. On cross-examination, Ponder testified that he did not build or crash test his proposed alternative design. He acknowledged that his design had never been adopted by manufacturers of tilt or dump beds. Ox Bodies renewed their objections to Ponder’s testimony based on those admissions, but the trial court decided that the jury would be allowed to consider Ponder’s expert testimony.

Appellate Decision

On appeal, Ox Bodies argued that Ponder should not have been allowed to testify about the alternative design because he did not test it before offering his opinion that it represented a safer alternative. Ox Bodies contended that his testimony was unreliable because it was not based on adequate data.

The Court of Appeals concluded that Ox Bodies’ argument was based on “a profound misunderstanding of Daubert.” While testing is “one of the most common and useful reliability guideposts,” the First Circuit has never required an expert to build and test an alternative product design before concluding that the design is safer.

Ponder based his conclusion on information from several sources, including crash test data and studies of underride guard deigns. Ponder testified that the information was transferable to underride guards for any kind of vehicle. He also based his conclusions on stress calculations and photogrammetry analysis. Ponder explained why he rejected Ox Bodies’ claim that the calculations performed by its own expert were necessary to determine the superiority of the alternative design.

Following First Circuit precedent, the Court held that juries should ordinarily decide whether to believe expert testimony that is arguably “shaky.” Ox Bodies had ample opportunity to cross-examine Ponder and it presented its own expert testimony. Whether Ponder’s testimony was worthy of belief was for the jury to decide.

Courts that take a less liberal view of Daubert might disagree with the First Circuit’s reasoning. It is important to understand, however, that the gatekeeping role belongs to the trial judge, while an appellate court plays a more limited role when it reviews the trial court’s decision. Since the trial judge applied Daubert to the facts in a reasonable way, the Court of Appeals did not disturb the court’s ruling.

House damaged by fire

Expert Challenges Evidence Supporting Arson Conviction

William Amor was charged with causing a death by arson in a 1995 fire. A jury found him guilty in 1997. Amor has been in prison for the last 19 years. He has always contended that he did not purposely set the fire that killed his mother-in-law.

Amor is seeking a new trial. In an attempt to persuade a judge that he was convicted on the basis of unreliable evidence, Amor has presented expert testimony that the fire was started accidentally. The prosecution has countered with expert testimony that challenges the conclusions reached by Amor’s arson expert.

Amor’s Trial

Amor’s wife, Tina, told arson investigators in 1995 that she dropped her cigarette while she was smoking in a recliner. She could not find the cigarette but assumed that it was no longer burning. Tina later went to a movie with Amor, while her mother remained in the house.

The fire occurred in Naperville, Illinois. The Naperville police arrested Amor and held him in jail for two weeks. After an interrogation that lasted 15 hours, an exhausted Amor confessed to setting the fire so that Tina could collect insurance money. He later recanted that confession, but it was used against him at his trial.

At the trial, a fire investigator for the Naperville Fire Department testified that the fire started between the recliner and a nearby glass door. The investigator based that opinion on “fire pattern analysis” and the presence of a single V-pattern near the swivel chair.

The investigator testified that the fire was deliberately set. However, it appears that he arrived at that conclusion because he wanted to corroborate Amor’s confession. Before Amor gave his incriminating statement to the police, fire investigators said that the fire’s origin was undetermined.

Subsequent Proceedings

The Innocence Project of Illinois began to investigate Amor’s case in 2012. Their investigation was initially stymied by the state’s attorney’s office, which resisted Freedom of Information Act (FOIA) requests by claiming to be an agency in the judicial branch of government, to which FOIA does not apply. The investigation began to move forward after a judge made the obvious ruling that prosecutors belong to the executive branch of government, not the judiciary.

The DuPage County state’s attorney said “his office doesn’t believe in open access to case files.” That makes sense when a case is still pending, because access to evidence is governed by rules of discovery. After a case is closed, however, public access to information is an important safeguard to assure that prosecutors are not trying to cover up their misconduct. The prosecutor’s position — that Amor may have lied about how he started the fire but didn’t lie about starting the fire — makes so little sense that the need for open access to the prosecution’s case file seems obvious.

Amor’s Expert Witness

Doug Carpenter, an expert with Combustion Science and Engineering Inc. of Maryland, testified in support of Amor’s motion for a new trial. Amor’s confession stated that he set the fire by dropping a lit cigarette onto newspapers soaked with vodka. Carpenter told the court that it is impossible to start a fire in the way that Amor described.

Carpenter also testified that the fire investigation techniques used in 1995 have since been discredited. He concluded that the original investigators “relied upon misapplication of the scientific method, as well as scientifically unreliable myths and misconceptions that had permeated the fire investigation community for years prior to the time of their investigation and testimony.”

Carpenter suggested that advances in fire science, when applied to the evidence in Amor’s case, point to Tina’s smoldering cigarette in the recliner as the most likely cause of the fire.

Prosecution’s Expert Witness

John Golder, a special agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives, testified for the prosecution. He said that the damage was not consistent with a fire started by a smoldering cigarette. He concluded that a flame from some other source must have started the fire.

Golder agreed, however, that it was not possible to use vodka to set a fire with a burning cigarette. He also conceded that a laboratory analysis failed to find any ignitable liquid that could have been used to start the fire.

Golder’s report suggested that the fire was probably set deliberately but probably not by Amor. Golder viewed Tina as a more likely suspect, although he was open to the possibility that Armor was an accomplice.

The Science of Arson Investigation

According to one expert observer, “fire pattern analysis” has been discredited when the fire burns past a flashover point. A flashover occurs when most of the combustible material in a room starts on fire at roughly the same time. According to the expert, some studies show that “the accuracy rate of determining a fire’s area of origin in a post-flashover fire was between 6 and 10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}.”

Carpenter criticizes outmoded arson investigation techniques as “junk science.” He says that fire investigators resisted using scientifically acceptable techniques until the early 2000s.

Wrongful convictions have resulted from adherence to the “junk science” of outmoded fire investigation techniques. Frontline provided extensive coverage of doubts surrounding the arson murder conviction of Cameron Todd Willingham. Frontline calls Willingham “the most prominent case of a person who was convicted and executed for a crime he may not have committed.” Gerald Hurst, a leading arson investigator, concluded that the house fire Willingham was accused of starting was not arson. Hurst also said in a 2010 interview that “95 percent of fire investigators get it wrong.”

Frontline also called attention to several cases of arson-related murder convictions that were called into question by advances in fire science. Two people in Texas, Ernest Ray Willis and Sonia Cacy, were exonerated after new investigations established that the fires they were accused of setting started accidentally. Willis had been on death row for 17 years at the time of his exoneration while Cacy had been serving a sentence of 99 years.

The prevalence of wrongful (or questionable) convictions should alert criminal defense attorneys to the need to hire their own expert witnesses in an arson prosecution. Prosecutors who are concerned about finding the truth should also be suspicious of government experts who do not follow currently accepted standards for fire investigation.

CCTV

Experts Question Reliability of Forensic Video Evidence

The need for criminal defense attorneys to hire independent expert witnesses has never been more clear, as the reliability of testimony given by expert witnesses who work for the police has increasingly been called into question. Unfortunately, the importance of an independent expert witness to a fair trial isn’t always apparent to defense attorneys or to judges.

Two cases involving robberies of 7-Eleven stores illustrate the importance of retaining a forensic video expert when a criminal accusation is supported by video evidence. In both cases, the defendants were convicted of robbery based on expert testimony that the defendants were the same height as the robber shown on surveillance camera footage. In both cases, independent forensic video experts hired after the defendants were sentenced concluded that the surveillance videos proved the defendants’ innocence.

George Powell III

George Powell III was charged with robbing a 7-Eleven store in Killeen, Texas in 2008. A surveillance video showed a man wearing sunglasses and a baseball cap pointing a gun at the store clerk. The video was broadcast on the news and the police arrested Powell in response to a tip from a television viewer.

At the time of the robbery, the clerk estimated that the robber was 5 feet 6 inches tall. Shown a photo array of faces, she picked Powell’s photograph. She was not aware, however, that Powell is 6 feet 3 inches tall. Other clerks were less confident that Powell was the robber.

It isn’t uncommon for eyewitnesses to be mistaken when they are shown photographs rather than seeing an in-person lineup. The method used to obtain the clerk’s identification of Powell is so unreliable that it was later banned in Texas courts.

To deal with the height discrepancy, the prosecution called Michael Knox as an expert witness. Knox, a retired police officer, testified that he used the science of photogrammetry to determine that the robber in the video was more than 6 feet tall. Knox had no training in photogrammetry and had never before attempted to determine a suspect’s height based on a video image. Powell was nevertheless convicted on the strength of that evidence, coupled with the testimony of a Texas jailhouse informant that was later recanted.

Powell’s family eventually hired two experts who examined the video and determined that the robber was about 5 feet 7 inches tall. The Texas Science Commission then hired Grant Fredericks, who taught video analysis at the FBI National Academy. Fredericks determined that the robber was somewhere between 5 feet 6 inches and 5 feet 9 inches tall. All three expert opinions excluded Powell as a suspect. All three experts agreed that Knox did not follow professional standards in forming his opinion about the robber’s height.

Powell’s defense team has filed a motion challenging the conviction. A district judge will consider the evidence, including the new expert evidence, and make recommendations to the Texas Court of Criminal Appeals as to whether Powell should be granted a new trial.

Michael Hutchinson

A clerk who was robbed at gunpoint at a 7-Eleven in Milpitas, California identified Michael Hutchinson as the robber. The identification was problematic because the robber was wearing a mask. Hutchinson was nevertheless convicted in a 1998 trial.

Hutchinson’s appellate attorney asked the state appellate court to approve funds for a forensic video expert. The attorney told the court that an expert was needed to establish that Hutchinson was not the robber captured on tape by the store’s surveillance camera. Deciding that an expert was unnecessary, the court affirmed Hutchinson’s conviction.

After taking an interest in Hutchinson’s case, the Mercury News hired a forensic video expert to examine the surveillance video. The expert concluded that the robber was much shorter than Hutchinson.

Hutchinson then brought his case before a federal judge. Relying in part on the forensic video expert’s opinion, the judge ruled that Hutchinson’s attorney failed to protect his client’s right to a fair trial. The judge concluded that the attorney should have recognized the need for an expert analysis of the videotape.

The judge’s decision that Hutchinson was entitled to a new trial was affirmed on appeal. The federal appellate court chastised the state courts for failing to fund the hiring of a necessary expert.

Forensic Video Analysis

Forensic video analysis has become increasingly important as more businesses, government buildings, and private homes install video cameras that capture the images of criminal suspects. The April 2016 report by the Texas Forensic Science Commission, prepared in response to Powell’s complaint, recognizes the legitimacy of photogrammetry. At the same time, the fact that different experts arrive at different height estimates when examining the same video “gave the Commission pause and raised concerns as to the state of forensic video analysis.”

The Commission noted that “the subjectivity involved in the different approaches to making a height determination raises questions about inter-analyst reliability within the discipline.” The absence of known error rates, the failure of analysts to standardize an analytical method, and the presence of confirmation bias (where the analyst knows the suspect’s height before undertaking the analysis) all raise questions about whether expert forensic video analysis should be admissible against a defendant in a criminal trial.

Lessons Learned

The cases of Powell and Hutchinson spotlight the importance of independent experts. In both cases, the defense attorney should have retained a forensic video expert to determine whether the robber was the same height as the defendant.

Blindly putting faith in the ability of the prosecution’s expert is a mistake, since experts who work for the police too often see themselves as advocates for the prosecution, not as advocates for the truth. At the very least, a criminal defense attorney who is faced with a prosecution expert in forensic video analysis should read and understand the concerns raised by the Texas Forensic Science Commission.

At the same time, too many judges believe that experts should only testify for the prosecution, not the defense. The Texas court that denied Powell’s request for funding to hire a forensic video expert assumed that an independent expert would add nothing of value to the proof. The court’s conclusion that an independent expert would not have been helpful is belied by recent revelations that forensic video experts employed by police agencies, when left unchallenged by independent experts, contribute to wrongful convictions.

Bloody tear of Themis

Failure to Present Expert Evidence Leads to New Trial

The controversial conviction of Kristen Blaise Lobato for killing a homeless man in Las Vegas may eventually be overturned, thanks to expert evidence that strongly suggests her innocence. The Nevada Supreme Court recently ordered the trial court to decide whether Lobato’s lawyer failed to represent Lobato effectively by neglecting to offer expert evidence that could help prove her innocence.

Accusations Against Lobato

Lobato was convicted of murdering Duran Bailey. The homeless man was brutally maimed and beaten before his carotid artery was slashed. His body was discovered at 10:00 p.m. on July 8, 2001.

No physical evidence linked Lobato to the crime. No evidence suggested that Lobato knew Bailey. Lobato became a suspect only because the police heard an unconfirmed rumor that Lobato had admitted maiming a man in Las Vegas. Lobato’s addiction to methamphetamine may also have influenced prosecutors to view her as guilty.

When the police confronted Lobato, she explained that she had slashed at a man who tried to rape her. That incident occurred two months before Bailey was killed. Having no other suspect, the police decided she was lying and arrested her for killing Bailey.

Critics contend that the prosecution’s case “was built on a shoddy and incomplete police investigation that overlooked evidence strongly suggesting another suspect was responsible.” It was also built on very little forensic evidence.

Lobato’s Alibi

The prosecution conceded that Lobato was in Panaca, near the Utah border, most of the day on July 8. Although Panaca is three hours from Las Vegas, prosecutors insist that Lobato killed Bailey before dawn, or even the night of July 7, and then fled to Panaca.

To win a conviction, prosecutors made sure they did not narrow the window during which Panaca could have been killed. Unfortunately, neither did the defense attorney.

The Clark County medical examiner gave at least three different estimates of the time of Bailey’s death. The first estimate suggested that Bailey could have died at any point during the 24 hours prior to his death. At trial, the medical examiner testified that the victim died between 8 hours and 24 hours, and more likely between 12 and 18 hours, before his body was examined at 3:50 a.m. on July 9.

The medical examiner now concedes that Bailey’s likely time of death excludes the possibility that Lobato could have killed him. The defense presented no expert evidence to challenge the medical examiner’s broader estimates at trial. After Lobato was convicted, that failure became the basis for Lobato’s latest appeal.

Nevada Supreme Court Decision

While rejecting most of the claims that were raised on appeal, the Nevada Supreme Court noted that one had merit. Lobato’s postconviction lawyer argued that her trial lawyer should have retained a forensic pathologist or a forensic entomologist to narrow the time of the victim’s death. Doing so could have cemented Lobato’s alibi.

Lobato’s postconviction attorney presented the affidavits of three forensic entomologists who opined that the victim died after 8:00 p.m. on July 8. An affidavit from a forensic pathologist averred that the victim could not have been dead for more than a few hours when the victim’s body was discovered. Lobato’s uncontested alibi established that she was in Panaca, not Las Vegas, during that time frame.

The trial court did not grant Lobato a post-conviction hearing to establish whether her expert witnesses could have presented reliable evidence in support of her defense. The court discounted the affidavits because they had not been subjected to cross-examination, but as the Nevada Supreme Court noted, they were not subject to cross-examination because the trial court refused to allow a hearing during which the experts could testify and be cross-examined.

The Supreme Court held that the expert testimony, if admitted at trial, would have been sufficient to create a reasonable doubt about Lobato’s guilt. The court therefore remanded the case to the trial court to determine whether the trial attorney had a legitimate strategic reason for failing to investigate, and narrow down, the victim’s time of death. If the trial court agrees that trial counsel was ineffective, it will be required to grant Lobato a new trial.

North Carolina

N.C. Supreme Court Adopts Daubert, Excludes Use of Force Expert

Charles McGrady was convicted in North Carolina of murdering his cousin, James Shore Jr. McGrady admitted that he shot Shore but claimed that he acted in self-defense. The trial court denied his request to call a “use of force” expert in his defense.

On appeal, the state’s highest court decided that the federal Daubert standard of expert witness admissibility now applies in North Carolina. Applying that exacting standard, it affirmed the lower court’s exclusion of the expert testimony.

Facts of the Case

McGrady and Shore lived across from each other in a trailer park. They had a long history of combative behavior.

McGrady testified that the night before the shooting, Shore threatened to kill him. The next day, McGrady drove his golf cart to his mailbox. His son, seated next to him, was armed with an assault rifle. McGrady was carrying a 9-millimeter handgun.

As McGrady was driving back to his trailer, he saw Shore shouting and moving toward him. McGrady activated a tape recorder that captured much of the argument between the two men. McGrady accused Shore of threatening to kill him. Shore accused McGrady of shining a spotlight on him the previous night. Another witness testified that it was not a spotlight but the laser sight of an assault rifle that McGrady pointed at his cousin.

The men exchanged a variety of threats. According to McGrady’s son, Shore approached the golf cart and began to shake it. McGrady testified that Shore also threatened them with a knife.

McGrady asked his son to hand him the assault rifle “to defuse the situation,” an act that prompted Shore to reach for the rifle. Whether Shore actually grabbed the rifle was disputed by the witnesses.

McGrady testified that Shore pointed the rifle at his son’s head. McGrady then shot Shore with his handgun. McGrady fired seven shots, four of which struck Shore.

McGrady argued that he acted in self-defense and in defense of his son. To bolster that defense, he wanted to call Dave Cloutier as an expert in “the science of the use of force.” The trial court denied that request and McGrady was convicted of murder.

Admissibility of Expert Testimony in North Carolina

In 2011, the North Carolina General Assembly amended Rule 702(a) of North Carolina’s Rules of Evidence. The version that the legislature adopted tracked the language of the federal rule governing the admissibility of expert testimony. The federal rule is commonly known as the Daubert standard, based on a United States Supreme Court case that defined the trial court’s responsibility in applying the rule.

In 2004, the North Carolina Supreme Court had concluded that “North Carolina is not, nor has it ever been, a Daubert jurisdiction.” The Court was concerned that “the ‘exacting standards of reliability’ demanded by the federal approach” required judges to invade the province of the jury by evaluating “the substantive merits of the scientific or technical theories undergirding an expert’s opinion.”

In McGrady’s appeal, the Court overruled that precedent and held that the “the meaning of North Carolina’s Rule 702(a) now mirrors that of the amended federal rule.” According to the Court, “the General Assembly has made it clear that North Carolina is now a Daubert state.”

The Court concluded that federal precedent construing the Daubert standard should guide North Carolina cases. Of course, as ExpertPages has often noted, federal courts have adopted varying interpretations of the federal rule. Some interpretations are more liberal and others are more restrictive in defining the judge’s role as the “gatekeeper” of expert evidence.

North Carolina had a fairly liberal standard for the admission of expert evidence before the legislature adopted the Daubert standard. The Court concluded that its prior cases will continue to guide judges, but only to the extent that they are not inconsistent with Daubert. For the most part, cases that decided whether expert testimony would be helpful to the jury and whether the expert was qualified to testify will still be good law in North Carolina. The key difference between the old and new standards is that a judge’s assessment of whether expert testimony is reliable will be more rigorous than it was in the past.

McGrady’s Expert

McGrady expected his use of force expert to provide three opinions:

  • the “pre-attack cues” and “use of force variables” present in the interaction between McGrady and Shore made McGrady’s perception of an imminent, deadly assault reasonable and justified the use of deadly force;
  • McGrady’s actions and testimony are consistent with those of someone experiencing the sympathetic nervous system’s “fight or flight” response; and
  • the shots that hit Shore in the back can be explained by reaction times.

The North Carolina Supreme Court concluded that the trial judge did not abuse his discretion in disallowing that testimony. The appellate court agreed that McGrady’s perception of a likely assault was within the jury’s common knowledge and that an explanation of cues (such as threats and the display of a weapon) and variables (such as the age and size of the participants in the dispute) would not add anything to what jurors already understood.

The Court also agreed that Cloutier was not qualified to offer expert testimony about the stress responses of the sympathetic nervous system. Cloutier was not a doctor. He claimed to have “basic knowledge” of brain functioning based on taking college psychology courses, reading articles, and teaching police officers how to deal with stress responses. The Court concluded that while Cloutier “may have been eminently qualified to testify about standard police practices regarding the use of force, he was far less qualified to testify about the sympathetic nervous system.” Whether Cloutier was adequately qualified was a judgment call, and the trial court’s judgment was not so obviously wrong that the court could be said to have abused its discretion.

Finally, the appellate court agreed that Cloutier’s proposed testimony regarding reaction times was unreliable. Cloutier would have testified that a person can turn his body in less time than it takes to perceive a threat and fire a weapon, so Shore might have been facing McGrady when McGrady decided to shoot, but might have turned his back to McGrady before the shots were fired. The trial court thought the proposed testimony was unreliable because Cloutier based his opinion on reaction time studies, but admitted that factors such as clothing, injuries, and initial body position can affect reaction time. Those factors would seem to go to the weight a jury should give to Cloutier’s testimony rather than its reliability. In fact, use of force experts routinely testify about reaction times in cases where the police shoot a suspect in the back. The same standard presumably should apply to civilian defendants, but the Court concluded that the trial court did not abuse its discretion in deciding that Cloutier’s testimony was unreliable.

Implications for Expert Witnesses

In the end, the McGrady case is more important for its definitive ruling that North Carolina now follows the Daubert standard than for its application of that standard to Cloutier’s expert testimony. Other trial judges applying the same standard may have concluded that some parts of Cloutier’s testimony were admissible. In fact, use of force experts are common when police officers are on trial, so the McGrady decision should not be read as prohibiting use of force expert testimony in every case.