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.

Search Expert in Durst Case Alleged to Have Conflict of Interest

Millionaire Robert Durst, having been acquitted in 2003 of murdering his Galveston neighbor and arrested this year for murdering crime writer Susan Berman, now faces federal charges of illegally possessing a pistol in a New Orleans hotel room. Durst has felony convictions from 2004 for skipping bail and tampering with evidence. It is a violation of federal law for anyone with a felony record to possess a firearm or ammunition.

Durst is challenging the search of the hotel room where the pistol was found. To that end, he wants to call Don DeGabrielle as an expert witness. DeGabrielle is a former U.S. Attorney for the Western District of Texas and a former FBI agent. His qualifications notwithstanding, federal prosecutors want to bar his testimony, claiming he has a conflict of interest.

The Robert Durst Story

Durst became a “celebrity defendant” when he was placed on trial for murder after shooting Morris Black and chopping up his body. The jury decided that the shooting occurred while Durst was struggling to defend himself and found him not guilty.

Durst acknowledged that after the shooting, he drank a fifth of Jack Daniels, chopped up Black’s body, and dumped the pieces into Galveston Bay — acts that, given his intoxicated state, he says he does not remember committing. When he was charged with Black’s murder, he posted bail and fled to Texas. After his acquittal, Durst entered a guilty plea to charges of concealing evidence and bail jumping.

According to Durst’s attorney, the 2003 trial was made more complicated by the fact that “Durst is rich, wore a wig, pretended to be a mute woman, and was suspected of killing his wife in 1982.” Durst’s murder trial and his suspected involvement in two other homicides was the subject of the HBO documentary The Jinx, not to mention countless stories in the tabloids.

Although Durst was never charged with the disappearance of his wife, Los Angeles prosecutors earlier this year charged Durst with murdering Susan Berman, a close friend who was found dead in her home in 2000. The charge is largely based on information revealed in the HBO documentary, including a statement that Durst made while he was being recorded without his knowledge. Durst’s muttered remark, apparently made to himself while using the bathroom — “What the hell did I do? Killed them all, of course” — is part of the new evidence that motivated Los Angeles prosecutors to charge Durst with Berman’s murder.

The Gun Prosecution

After the new murder charges were filed, the police in Los Angeles asked the FBI for assistance in locating Durst. FBI agents found Durst in a New Orleans hotel, where he was staying under an assumed name. Durst was arrested in the lobby as he was walking toward the elevator.

A subsequent search of Durst’s hotel room uncovered the .38 pistol, resulting in a “felon in possession of firearms” charge. The search took place after Durst was unable to produce identification in the hotel lobby. FBI agents claim they “escorted” Durst to his hotel room and conducted an “inventory search” of the room’s contents. In addition to finding the gun, the agents seized $44,000 in cash, a tracking number for a package with more cash, a mask, and an ID in the name of an alias.

Durst’s attorneys have asked the court to suppress the results of the hotel room search, including the gun. Because no arrest warrant had been issued prior to Durst’s arrest, they contend that the FBI agents lacked authority to search Durst’s room. They also contend that the agents lacked probable cause for Durst’s arrest.

The Expert’s Testimony

Don DeGabrielle, now in private practice, has been hired by the defense as “an expert witness on search warrants and practices.” The District Court judge who is hearing the case agreed that DeGabrielle could testify at the suppression hearing.

Prosecutors are now asking the court to reconsider its ruling. They argue that DeGabrielle has a conflict of interest. When Durst purchased the gun that was used in Black’s shooting, he checked “no” on a federal form that asked whether he used marijuana. Because Durst testified during the murder trial that he was a habitual user of marijuana, Texas police detectives wanted Durst charged with a federal crime for making a false statement on the form.

Federal prosecutors in the New Orleans prosecution point to a news story in which DeGabrielle, who was then the U.S. Attorney in the Texas district where Durst bought the gun, told reporters for a Galveston newspaper that he would not be filing charges. Federal prosecutors contend that his decision not to prosecute, and to inform reporters of that decision, “create an appearance of bias that should disqualify DeGabrielle from now profiting as an expert.”

The attempt to disqualify DeGabrielle seems a stretch. The initial decision not to prosecute Durst was made by DeGabrielle’s predecessor. When DeGabrielle took office two years later, he chose not to disturb that decision, in part because the decision had already been communicated to Durst’s attorneys. Talking to reporters is something that U.S. Attorneys routinely do. It is difficult to identify evidence of bias in DeGabrielle’s brief contact with Durst’s case.

In any event, experts are commonly accused of bias in favor of the party for whom they testify, simply because they are being paid for their testimony. Whether they are actually biased is a question for the trier of fact (in this case, the trial judge) to consider after listening to the expert testify. Allegations of bias are rarely a reason to disqualify an expert from testifying, particularly when those allegations are as weak as they appear to be in Durst’s case.

 

Proposed Expert Testimony Rejected in Child Pornography Case

The United States Court of Appeals for the First Circuit affirmed a defendant’s conviction of possessing child pornography after rejecting his argument that the District Court should have allowed his expert witness to testify. The decision, United States v. Gerald J. Silva, essentially holds that the jurors were just as capable as the expert of recognizing pornography when they saw it.

Facts of the Case

After shutting down a website that was distributing child pornography, Canadian authorities seized the website owner’s business records and provided them to the United States Postal Inspection Service. Gerald Silva’s name and address appeared in those records. After his home was searched, Silva was charged with and convicted of six counts of receiving child pornography and one count of possessing child pornography.

Silva was one of 348 customers of the website to be charged with a crime. They included “six law enforcement officials, nine religious leaders, 40 school teachers, three foster parents, 32 children volunteers and nine health professionals.”

Ironically, Silva worked as a Rhode Island state probation officer assigned to supervise sex offenders. Silva claimed that he ordered videos from the website for professional reasons.

Meaning of Child Pornography

Federal law defines child pornography as including any visual depiction of a minor engaging in sexually explicit conduct. A federal statute defines “sexually explicit conduct” to include the “lascivious exhibition of the genitals or pubic area of any person.”

The requirement of a “lascivious exhibition” is important. It protects parents from prosecution who take photographs of their children taking a bath or playing in the nude. The word “lascivious” generally has the same meaning as the word “lewd,” but neither term is self-defining.

Federal courts generally agree that a “lascivious exhibition” of genitals occurs when the genitals are the focal point of an image. A video of a child touching his or her genitals, a photograph that shows a close-up view of genitalia, or the image of a child in a sexually suggestive pose will generally be regarded as lascivious. On the other hand, a more distant photograph of a nude child whose legs are pressed together and who is swinging on a swing set probably will not be considered lascivious.

The Proposed Expert Testimony

Some images fall into a gray area between pornographic nudity and permissible nudity. In particular, whether a pose is innocent or sexually suggestive is often a matter of opinion. Silva’s attorney hoped to exploit that gray area by using an expert witness to bolster the contention that certain images were not pornographic.

Silva’s lawyer proposed to call John Leo, a retired Professor of English at the University of Rhode Island, as an expert in film and video. Professor Leo would have testified that the settings for the videos were not sexually suggestive. Leo would also have testified that the children’s poses and conduct were not sexually suggestive.

The Legal Test

Federal courts follow Rule 702 of the Federal Rules of Evidence in deciding whether expert testimony should be admitted in a federal trial. Rule 702 allows a court to admit expert testimony if the testimony:

  • would help the jury understand the evidence or decide a fact that is important to the verdict;
  • is based on sufficient facts or data;
  • is the product of reliable principles and methods; and
  • is based on a reliable application of those principles and methods to the facts of the case.

The first question was at issue here: whether Professor Leo’s opinion would have helped the jury understand whether the videos constituted child pornography.

The Decision

The court of appeals held that Professor Leo was in no better position than the jurors to form an opinion about the videos. He did not purport to have an opinion of the videos’ artistic merit or of the reason a buyer would want to watch the videos. He did not suggest that he knew why the producer of the videos created them.

According to the court of appeals, the jurors were just as capable as Professor Leo of watching the videos and deciding whether the conduct and poses that they depicted were sexually suggestive. For that reason, Professor Leo’s opinion was not deemed helpful to the jury and his testimony was disallowed.

Given the language of the court of appeals’ opinion, a different result might have been reached if Silva had called an art historian or a filmmaker who could testify that the videos had artistic merit and that they fit within an artistic tradition that was unrelated to pornography. Testimony that the focus of the work as a whole is artistic rather than sexually titillating might satisfy Rule 702. Of course, whether any expert exists who would have formed that opinion after viewing the videos that Mr. Silva possessed is another question.

Forensic Accountant Questions 50 Cent’s Bankruptcy Filing

Forensic accountants can play a critical role as expert witnesses in bankruptcy cases. Creditors or bankruptcy trustees who harbor suspicions of bankruptcy fraud turn to forensic accountants to determine whether a bankruptcy filing is legitimate. By scouring financial records, a forensic accountant hopes to determine whether a person or business filing for bankruptcy protection is concealing assets that could be used to satisfy the filer’s debts. Expert reports and testimony often provide essential evidence in hearings that challenge a debtor’s entitlement to bankruptcy relief.

A columnist for the Washington Post wonders whether forensic accountants will be called upon to lend their expertise in a bankruptcy proceeding that was recently initiated by Curtis Jackson. Better known to his fans as rapper 50 Cent, Jackson’s 2003 debut studio album, “Get Rich or Die Tryin’,” turned out to have a prophetic title. “Fiddy” Cent got rich and didn’t have to die tryin’. The album’s two number one hits (“In da Club” and “21 Questions”) assured 50 Cent’s financial success. Why then, the Post’s columnist wonders, is he filing for bankruptcy?

50 Cent’s Finances

Forbes recently estimated 50 Cent’s net worth as $155 million, placing him in the top 5 on Forbes’ 2015 list of wealthiest hip-hop artists. His investment in Vitamin Water, which he sold to Coca-Cola for somewhere between $60 million and $100 million in 2007, played a significant role in his wealth accumulation.

In addition to album sales, 50 Cent has starred in a number of film and television projects. His business ventures include a headphone company, a record label, and a vodka brand. He has also entered into lucrative endorsement deals with Reebok and a line of luxury men’s underwear.

So why does a successful artist and business investor require the protection of the bankruptcy court? A jury recently awarded $5 million to 50 Cent’s ex-girlfriend after finding that he violated her privacy interests by posting a revealing tape online. The bankruptcy petition was filed on the day the jury was to hear evidence concerning the plaintiff’s claim for punitive damages. The filing brought those proceedings to a halt, at least temporarily.

Lawyers for 50 Cent did not say whether the lawsuit was responsible for the Chapter 11 filing. Their public statement indicated only that 50 Cent wishes to pursue “an orderly reorganization of his financial affairs.” The brief, 5-page bankruptcy filing provides relatively little information about 50 Cent’s financial status, although it claims that he has assets and debts that are both in the range of $10 million to $50 million.

A Forensic Accountant Looks at the Bankruptcy Filing

The Post columnist solicited the opinion of a certified forensic accountant who has testified as an expert witness in a number of court cases. Since 50 Cent’s preliminary filing consisted only of five pages, however, the value of his Chapter 11 petition as an investigative tool was limited.

Filing an abbreviated petition triggers the bankruptcy court’s “automatic stay” that brings a halt to lawsuits and collection efforts. The skeletal filing is not in itself suspicious, although the timing suggests that 50 Cent may have had his fill of his ex-girlfriend’s lawsuit.

Harder to explain is the petition’s assertion that 50 Cent has assets of between $10 million and $50 million, an estimate that is difficult to reconcile with Forbes’ report that 50 Cent’s net worth is closer to $155 million. The value of his mansion declined as the real estate market fell (he listed it for sale at $18.5 million in 2007, then dropped the asking price to $10.9 million two years later), but the columnist wonders what happened to all that Vitamin Water money.

There may be nothing untoward about 50 Cent’s bankruptcy filing. On the other hand, it raises questions that might only be answered by forensic accountants serving as expert witnesses after the full Chapter 11 petition is filed.

New Skull Fracture Research May Cause Experts to Revise Child Abuse Opinions

Legal teams that seek to free wrongly convicted defendants from prison frequently turn to expert witnesses to help them prove a client’s innocence. New evidence provided by DNA experts has resulted in 330 post-conviction exonerations in the United States. Many of those innocent defendants were facing the death penalty.

As ExpertPages has reported, expert testimony is also persuading courts to reopen cases in which convictions were based on evidence of “shaken baby syndrome.” Advances in medical science have persuaded experts that many so-called “shaken baby” injuries that were once thought to have been inflicted as an act of abuse could have resulted from natural causes.

New research may cause forensic investigators to rethink their conclusions — and may lead to a new wave of exonerations —in child abuse cases involving skull fractures. In the past, experts testified that multiple fractures were indicative of child abuse. New research is now casting doubt upon that testimony. In the near future, experts may be called upon to help free wrongly convicted prisoners who are serving child abuse (or murder) sentences in cases where children experienced multiple skull fractures.

Skull Fracture Research at MSU

Until now, when doctors and medical examiners observed multiple fractures on a child’s skull, they regarded it as a “red flag” for child abuse — at least in the absence of an accident that produced multiple impacts with the child’s head. Researchers at Michigan State University are now questioning that conclusion. Their research may change the way forensic scientists interpret skull fractures when they are deciding whether a child was or was not the victim of child abuse.

After spending years smashing infant pig skulls and examining the results, the MSU research team has concluded that a single impact can cause multiple, unconnected fractures. That finding contradicts the conventional view that unconnected fractures can only be produced by separate impacts.

The research brought together Todd Fenton, the director of the MSU Forensic Anthropology Laboratory, and Roger Haut, the director of MSU’s Orthopaedic Biomechanics Laboratories. Fenton thought that merging the expertise of a forensic anthropologist and a biomechanical engineer could fill a gap in existing science. Their ultimate goal is to create a map of skull fractures that could be used to prove or disprove child abuse accusations.

Implications for Skull Fracture Child Abuse Cases

The research may lead to exonerations of individuals who have been convicted of child abuse on the strength of mistaken testimony that a single, accidental blow to the head could not produce multiple fractures. “Knowing what we know now,” Fenton told the Lansing State Journal, “our fear is that there may be people that have been wrongly accused of child abuse based upon those protocols.”

The MSU team’s findings may be particularly significant in cases where a defendant testified that a child was dropped accidentally or fell out of bed. In the past, juries may have rejected the defendant’s testimony simply because prosecution experts testified that a single fall would not produce multiple fractures.

Fortunately, honest scientists are willing to change their minds when advances in scientific research demonstrate that conclusions they drew in the past may be mistaken. Just as experts have recanted their testimony in shaken baby cases, experts who testified that multiple skull fractures could not result from a single impact may be asked to rethink their opinions by post-conviction attorneys working to free wrongly convicted defendants in child abuse cases.

Meeting Future Challenges

Fenton notes that determining the cause of a pediatric death is often challenging. “And often times,” Fenton says, “when those cases go to trial, expert witnesses line up on both sides and it can become really contentious.”

Before the MSU scientists began their work, there was little sound science upon which to base an interpretation of cranial fractures. The MSU team is working with computer scientists to build a skull fracture database that they have termed the Fracture Printing Interface. They hope that their database will give forensic experts a foundation for deciding whether a skull fracture pattern was or not the result of child abuse.

Experts Disagree About Effectiveness of Conversion Therapy

Whether gender attraction can be changed is the subject of expert testimony in a New Jersey trial. Conversion therapy — a controversial practice that promises to help gay men and lesbians overcome unwanted same-sex attraction — is at the core of a lawsuit filed by the Southern Poverty Law Center (SPLC) against an organization called Jews Offering New Alternatives for Healing (JONAH). The lawsuit contends that conversion therapy amounts to consumer fraud.

Perspectives on Conversion Therapy

Conversion therapy, sometimes known as reparative therapy, is intended to change an individual’s sexual identity or orientation. About 70 organizations in 20 states offer conversion therapy.

Arthur Goldberg, co-executive director of JONAH, contends that “homosexuality is a learned behavior which can be unlearned, and that healing is a lifelong process.” Taking the position that same-sex attraction is not a disease to be cured, the American Psychiatric Association (APA) and other organizations representing mental health professionals say that conversion therapy is ineffective and can be harmful to patients.

Three states and the District of Columbia prohibit conversion therapy programs from furnishing services to minors. With the support of the White House, federal legislation has been proposed that would ban licensed therapists in for-profit institutions from offering conversion therapy. The ban would not affect nonprofit counseling offered by religious groups.

The SPLC Lawsuit

The SPLC brought its lawsuit on behalf of six plaintiffs. The lawsuit, based on New Jersey’s Consumer Fraud Act, alleges that JONAH violated the Act’s prohibition of deceptive and fraudulent business practices by misrepresenting that same-sex attraction is a mental disorder and by falsely claiming that conversion therapy effectively changes sexual orientation. The plaintiffs seek restitution of the fees they paid to JONAH and compensation for the costs they incurred for therapy to recover from the emotional distress that JONAH allegedly inflicted upon them.

The Freedom of Conscience Defense Fund (FCDF) is defending JONAH. The FCDF takes the position that adults have the right to give greater weight to their religious faith than they give to their “putative sexual identity.” The FCDF contends that individuals who want to rid themselves of sexual desires that conflict with their faith are entitled to seek help from licensed professionals who share their beliefs.

The Court’s Rulings on Expert Testimony

Each side has attempted to bar the testimony of expert witnesses offered by the other side. Those efforts met with only partial success. The court denied the JONAH’s motion to prohibit three SPLC witnesses from giving any expert testimony.

The SPLC asked the court to prohibit JONAH’s expert witnesses from testifying that homosexuality is a “clinical condition” or disorder rather than a normal variant of human sexuality, a position that has been rejected by the APA and every major national and international professional organization in the field of psychiatry. JONAH countered that its experts based their opinions upon professional experience and valid methodologies and that the APA (and similar organizations) are advancing a political, rather than a scientific, opinion.

The court excluded proposed testimony concerning Orthodox Judaism’s view of homosexuality and the alleged harm that homosexuality does to society on the ground that those opinions had no relevance to the claims of fraud that the plaintiffs assert. The court also prohibited the experts from expressing the opinion that the plaintiffs’ claims to have been deceived are untruthful since the credibility of witnesses is for the jury, not the experts, to decide.

New Jersey follows the Frye standard, which admits expert testimony only if it is based on generally accepted science. The court declined to accept JONAH’s argument that the APA and other professional organizations all abdicated their responsibility to base their conclusions on scientific research rather than political correctness. The court concluded that the “overwhelming weight of scientific authority concludes that homosexuality is not a disorder or abnormal.” It therefore barred the experts from testifying that homosexuality is a mental disorder and not a normal variant of human sexuality. Since the proposed expert testimony about the benefits of conversion therapy was premised on the belief that homosexuality is a disorder or abnormal, the court also disallowed that testimony.

The Issues at Trial

While the scientific community agrees that homosexuality is normal, it has not produced a shared understanding of why some people are gay and others are straight. The extent to which people voluntarily or unconsciously change their sexual orientation is also controversial, given that some people experience a “fluidity” in their sexual identity over their lifetime. According to a journalist for The Atlantic who wrote about the SPLC suit, those gaps in expert knowledge have contributed to the growth of conversion therapy and may be the key to the trial’s outcome.

The court gave the SPLC a partial victory before the trial started by granting summary judgment in its favor on its claim that JONAH’s advertising violated the Consumer Fraud Act by misrepresenting that homosexuality is a disease or disorder and by advertising its “success rate” when it made no effort to track client outcomes. With the help of their experts, the plaintiffs will still need to prove that those misrepresentations caused them harm in order to prevail. The case is expected to go to the jury before the end of June.

FBI Agent Allowed to Testify as Expert Regarding Cellphone Location

Can an FBI agent who has no engineering background provide expert testimony about a cellphone location? That was the central question posed to a Tennessee judge who is presiding in a Knox County murder case.

The Evidence Against Norman Clark

Norman Clark is charged with the first degree murder of his former girlfriend, Brittany Eldridge. He is also charged with causing the death of Eldridge’s fetus.

The evidence against Clark is circumstantial. Eldridge was stabbed to death with scissors. Police say that an impression in the blood on Eldridge’s shoulder matches the shape of an earring that Clark was wearing on the day after Eldridge was killed. Clark’s fingerprints were also found in Eldridge’s bedroom. Since Clark was Eldridge’s former boyfriend, however, the presence of his fingerprints adds little to the case. The police tested more than 20 DNA samples that were apparently recovered from the crime scene but none belonged to Clark.

The strongest evidence against Clark is the claim that his cellphone was pinged in the area of Eldridge’s apartment at the approximate time of her death. The tower that recorded the “ping” is near Eldridge’s apartment. The critical question is whether the same tower could have recorded the “ping” if Clark’s cellphone was in his own residence.

The Expert Opinions

The prosecution plans to call FBI Special Agent Kevin Horan as “an expert in cell phone tracking and analysis.” Horan is a part of the FBI’s Cellular Analysis and Survey Team. His duties include helping state and local police departments by mapping coverage areas. His analysis relies on the assumption that cellphones usually connect to the closest tower because the closest tower usually has the strongest signal. Horan’s opinions are largely based upon information provided by cellphone companies and industry engineers, but he does not have an engineering background.

Clark’s defense attorney challenged the admissibility of Horan’s expert opinion. At a pretrial hearing (known in Tennessee as a McDaniel hearing), the defense argued that Horan’s opinion is based on inaccurate data and an unreliable methodology. The defense, which contends that Clark’s cellphone could have been in his own home when it pinged the tower, relied on a former cell phone network engineer to challenge Horan’s expertise. The defense expert testified that “Horan’s understanding of the collected cell data was ‘painful’ and over-simplified.”

The McDaniel Decision

In its McDaniel decision, the Supreme Court of Tennessee concluded that a trial judge should not admit expert testimony unless:

  • the evidence will substantially assist the jury;
  • the underlying facts and data relied upon by the expert do not indicate “a lack of trustworthiness”;
  • the expert’s reasoning and methodology are valid and reliable; and
  • the expert’s reasoning and methodology were properly applied to the facts at issue.

The supreme court emphasized that the trial court’s job is to focus upon the reliability of the methodology rather than the reliability of the conclusions the expert has drawn. The latter determination is for the jury to make.

Prior to McDaniel, Tennessee followed the Frye standard, which rejects expert testimony unless it is “generally accepted” by the scientific community. The McDaniel decision adopted a modified version of the standard that the United States Supreme Court adopted in the Daubert decision.

While the McDaniel decision suggests that Daubert is a more relaxed standard than Frye in the sense that it should allow the admission of reliable expert testimony even if it relies on a methodology that has not been generally accepted, most commentators believe that Daubert is a more restrictive standard than Frye. The McDaniel decision made clear that judges in Tennessee, unlike federal judges, should generally trust juries to choose among competing scientific theories and to decide whether an expert’s conclusions are credible. The trial judge’s limited role is to assure that the expert’s opinions are based on a valid methodology rather than speculation.

The Trial Court’s Ruling

Given the emphasis that the McDaniel decision places on the jury’s role in deciding contested facts, it is unsurprising that the trial judge ruled that Horan’s testimony is admissible. It will be up to the jury to decide whether Horan’s conclusions are reliable after listening to his testimony and the testimony of any defense experts who challenge his methodology.

Even under the federal Daubert standard, the result may have been the same. A federal judge who considered a similar issue involving Horan’s testimony in a federal criminal trial concluded that Horan’s methods were sufficiently reliable to meet the Daubert standard, notwithstanding legitimate questions that the defense raised about limitations in his analysis. Those limitations, the judge opined, went to the weight the jury would give his testimony, not to its admissibility.

Bloggers Debate Expert Witness Fees in Hulk Hogan Litigation

Bloggers are at war over the fees that Hulk Hogan’s legal team has paid to an expert witness who is assisting his invasion of privacy lawsuit against Gawker. One blogger seems shocked that an expert in the ethics of journalism would charge $250 per hour. Another blogger, who has a stronger sense of what experts are worth, notes that Hogan is probably getting a bargain.

Hulk Hogan’s Lawsuit

Terry Bollea, who gained fame as a professional wrestler/entertainer using the name Hulk Hogan, sued the gossip website Gawker for $100 million after Gawker posted a video of Hogan having sex with Heather Clem. Hogan, who says he did not know he was being filmed, claims that posting the video violated his right to privacy.

Gawker contends that Hogan was having sex with his friend’s wife (apparently with the friend’s knowledge and consent) and that the video is newsworthy because it undercuts Hogan’s public denials that he was having an affair. Gawker’s lawyer argues that the public has a right to know “what is going on in the whole world” and that Gawker has a First Amendment right to report the newsworthy actions of public figures.

The video was apparently made on a surveillance system that Heather Clem’s husband had installed in their bedroom. How Gawker obtained the video has not been revealed, although rumors suggest that it was leaked by a disgruntled former employee of Hogan’s friend. Hogan’s lawyers argue that Hogan’s privacy interest in his intimate activity within a bedroom outweighs Gawker’s interest in reporting gossip, particularly when the report included a video depicting nudity that was taken without Hogan’s knowledge or consent.

Hogan’s invasion of privacy lawsuit was filed in Pinellas County Circuit Court in the State of Florida. The case is scheduled to go to trial next month.

An Expert in the Ethics of Journalism

Peter Sterne, writing for the online publication Capital, reports that Hogan’s legal team is paying $250 per hour for the services of University of Florida Professor Mike Foley as an expert in journalistic ethics. That fee will increase to $350 per hour for trial testimony.

Foley testified in a deposition that the existence of the tape and the fact of the affair are newsworthy, but that the video itself is not. Foley also testified that posting a video of a private sexual encounter is “not journalism” and “not ethical.”

Whether Foley will be permitted to testify has not yet been decided. Gawker’s lawyers have asked the court to exclude Foley’s testimony on the ground that it constitutes a subjective opinion that is not supported by “reliable principles and methods,” as Florida law requires. Gawker’s lawyers note that Foley did not conduct a survey of journalists to divine their opinion of ethical standards and did not ask other gossip journalists (such as National Enquirer reporters) whether they agree with the standard of journalistic ethics that he accuses Gawker of violating.

Sterne’s commentary highlights the fact that Foley spent many hours preparing an expert report after reviewing of Gawker’s coverage of Hulk Hogan. Given the hours that Foley had logged by the time of his deposition, Sterne estimated that Foley had already earned about $15,000 for his expert services.

Welcome to the World of Litigation

Another blogger, Joe Patrice, writes that it is “cute” when “normal people” like Sterne — that is, people who are not regularly involved with litigation — profess to be shocked by the expense of expert witnesses. Patrice points out that $15,000 is a small price to pay in a case that might produce a $100 million award of damages. Patrice also notes that $250 per hour is consistent with the average fee charged by nonmedical experts nationwide.

While Gawker’s lawyers criticized Foley because he has never testified in a trial, Patrice makes a sound argument that Foley’s lack of experience testifying in other cases insulates him from charges that he is a “professional witness” who will testify for anyone willing to pay a fee. From Patrice’s perspective, Hogan might be “getting a bargain” by paying $250 per hour to engage the services of a respected professor of journalism who has no prior testimony that can be used against him at trial.

Court Balks at Funding Expert for Defendant in Manslaughter Trial

An expert on drunkenness may be called as a witness in a Buffalo, New York manslaughter trial. The proposed expert would be basing his testimony on the science of neurology rather than personal experience. The question is whether the court will agree to fund the expert.

The manslaughter charge

Paul Flynn is charged in Niagra County Court with causing the death of Clyde Mullen. According to one witness, Flynn and Mullen were arguing over a can of beer when Flynn grabbed Mullen by the neck and threw him down a short flight of porch stairs. A different witness said that Flynn shoved Mullen and that Mullen then fell down the steps.

Mullen remained in intensive care for several days before he died. Flynn has denied choking Mullen and said that he never intended to hurt him.

The police originally arrested Flynn for assault. Flynn was charged with second degree murder after Mullen died, but the grand jury refused to indict Flynn for that offense. The grand jury instead indicted him on a charge of first-degree manslaughter.

Flynn’s trial is scheduled to begin in September.

The intoxication issue

When police questioned Flynn, he did not appear to be under the influence of alcohol. A test of Mullen’s blood revealed a blood alcohol concentration of 0.31, a level that would be close to lethal for someone who had not developed a strong tolerance of alcohol.

Flynn’s lawyer, Brian Hutchison, wants to hire a neurologist to testify about how high levels of alcohol “affect a person physically and psychologically.” Hutchison told the court that the impact of Mullen’s intoxication upon his behavior was a material issue in the case. His proposed expert, Dr. Francis Gengo, is a professor at the University at Buffalo.

Funding the expert

In some jurisdictions, whether an expert would be allowed to testify about the impact of alcohol on an alleged victim might be questionable. Some judges might conclude that the association between intoxication and behavior is common knowledge and that an expert would not be able to provide the jury with helpful information.

At least according to news coverage to date, the issue of the proposed expert testimony in Flynn’s case is not whether the testimony would be admissible but whether the court is willing to pay for it. Hutchison is court-appointed, presumably because Flynn is indigent. If he plans to hire an expert, he must obtain the court’s approval to pay for the expert.

Defendants who have the resources to hire their own experts have a significant advantage over defendants who must rely upon a public defender’s office or appointed counsel. A wealthy defendant can hire the best expert that he or she can afford. An indigent defendant must cope with limited state budgets and judges or administrators who are reluctant to spend taxpayer’s money to assure that indigent defendants benefit from the same expert testimony that more affluent defendants would have.

Most courts have agreed that the right of indigent defendants to hire necessary experts is assured by the Due Process Clause (which guarantees the right to a fair trial), the Equal Protection Clause (which guarantees that poverty should not deprive a defendant of a fair trial), or the Compulsory Process Clause (which guarantees the right to call witnesses who can provide exculpatory testimony). Yet the contours and limits of that right are often unclear.

When is a proposed expert too expensive?

Just as the right to be represented by a lawyer does not guarantee the right to be represented by the best or most expensive lawyer, the right to call expert witnesses does not assure that indigent defendants will receive funding for the best or most expensive experts. Although Flynn faces a potential 25 year prison sentence, the judge balked at paying for the services of Dr. Gengo.

The judge told Hutchison that New York law limits payment of expert witness fees to $1,000 unless there are “extraordinary circumstances.” While news reports do not say how much money Hutchison was seeking, they do quote the judge as complaining that Gengo “seems very expensive.” The judge is also quoted as asking “Why do you need the most expensive guy out there?” The judge reportedly told Hutchison to “see if he can hire someone who’s good enough for under $1,000” and, if not, to get started with Gengo for $1,000 and ask for more money later.

A thousand dollars seems like a paltry sum when a quarter century of a defendant’s life is at stake. Unfortunately, when state legislators set funding limits for experts, they rarely adjust them for inflation as the years go by. Whether Hutchison will be able to find a less expensive expert who is “good enough” for $1,000 or whether he will persuade the court that “extraordinary circumstances” justify spending more money remains to be seen.

Teaching Expert Witnesses to Testify

One of the greatest challenges that expert witnesses face is explaining technical concepts in simple language that lay jurors can understand. Experts who are used to discussing their work with professional colleagues assume a basic level of familiarity with the language of science that lay jurors lack. Frustrated lawyers who ask experts to “explain that in simpler language” are matched by frustrated experts who do not believe that simple language can convey complex ideas.

Understanding that experts have important information that the public needs to understand, the National Science Foundation recently awarded a $540,000 grant to the Expert Witness Training Academy, a project of William Mitchell College of Law in St. Paul, Minnesota. The funding to date has been used to train climate and atmospheric scientists. About two dozen scientists participate in the training each year.

Allowing experts to become comfortable with the difference between lecturing in a collegial atmosphere and testifying in an adversarial proceeding is one of the program’s goals. Even when speaking to the general public, however, the confrontational nature of climate change and its impact on public policy underlines the importance of teaching climate scientists how to communicate effectively. The Academy stresses that it does not teach scientists to be an advocate for any particular position, but focuses on helping scientists justify their findings and conclusions by making science comprehensible to their lay audiences.

How experts develop communication skills

In addition to helping experts communicate with the public, the Academy provides workshops and other training to help experts learn to communicate effectively in adversarial settings, including trials and legislative hearings. The training allows scientists to participate in simulated trials, depositions, arbitration proceedings, legislative hearings, and media interviews. Scientists learn to use technologies such as power-point presentations to break their reasoning into digestible portions that lay people can more easily absorb.

One fictitious scenario involved a cloud-seeding operation designed to end a drought that resulted in a flood, causing extensive property damage and killing several people. Half the scientists were assigned to work with lawyers representing flood victims while the other half worked with defense lawyers representing a state agency that authorized the cloud-seeding and the company that conducted it. At the end of a mock trial, the scientists sat in on jury deliberations to learn how their testimony was viewed by the lay individuals who listened to it.

Learning opportunities for expert witnesses

This summer will be the third program that the Academy has undertaken to train climate and atmospheric scientists. The Academy hopes to expand its program in the future to train scientists to communicate about fracking, public health, and other controversial fields that would benefit from reasoned explanation in comprehensible language. The NSF grant will allow the program to continue and to expand during the next three years.

Private training for expert witnesses is available from a variety of organizations, such as The American Institute for Expert Witness Training. Learning to communicate complicated ideas to an unschooled audience is a worthwhile pursuit for experts, whether through formal training or by working closely with attorneys who help them testify effectively.

Forensic Psychologist Plays Critical Role in Slender Man Hearing

Every state has a juvenile justice system that handles crimes committed by children. In recent decades, however, most states have decided that some juveniles deserve to be prosecuted in adult criminal courts and to face the punishments for which adults are eligible. How the decision is made to prosecute children in juvenile or adult court varies from state to state.

Most states have a “waiver” system that allows a juvenile court judge to send children of a certain age to adult court if they are accused of committing specified offenses. The judge will consider a variety of factors, including the child’s maturity and likelihood of committing future crimes, in deciding whether to waive the child into adult court. That determination is made after taking evidence at a waiver hearing.

Some states also have a “reverse waiver” system. Children of a certain age who are accused of committing specified crimes can be charged in adult court. They then have the opportunity to present evidence to show that it would be more appropriate to handle their cases in the juvenile justice system, where the emphasis is typically on rehabilitation rather than punishment.

At either a waiver hearing or a reverse waiver hearing, expert evidence often plays a crucial role. The maturity level and other characteristics of the accused child are typically evaluated by psychologists or social workers who testify on behalf of the child or the State. The importance of that testimony is illustrated by the Slender Man case in Wisconsin.

The Slender Man case

According to the police, two 12-year-old girls in Waukesha (an affluent suburb of Milwaukee) plotted for months to kill another 12-year-old girl after a sleepover. The victim was stabbed 19 times. News stories report that the two girls meant “to pay homage to a fictional character who they believed was real after reading about him on a website devoted to horror stories.”

The girls allegedly told the police that they were trying to impress Slender Man, an “urban legend” they discovered on the Creepypasta website. Their plan was to kill their friend and then hike to Slender Man’s mansion, which they believed to be in northern Wisconsin. One of the girls expressed fear that Slender Man would kill her and her family if she did not carry out the plot. The girls told the police that Slender Man watches them and that he has the ability to read minds and to teleport.

The stabbing victim, a middle school classmate of the two girls, survived the assault. Prosecutors charged the two girls in adult court with the crime of attempted first degree murder. If they are sentenced as adults, each girl could face a maximum of 65 years in prison. If the children are sentenced in juvenile court, Wisconsin law would not allow them to be held in a confined setting beyond the age of 18.

Expert testimony in the reverse waiver hearing

Children as young as 10 can be charged as adults in Wisconsin. It then becomes their burden to convince a judge that their case should be transferred to juvenile court. A reverse waiver hearing for one of the two girls in the Slender Man case began this week.

The girl’s defense attorney relied heavily on the testimony of a forensic psychologist. After evaluating the girl, the defense expert testified that she was suffering from a delusional disorder at the time of the stabbing but does not presently suffer from the kind of personality disorder that creates a strong risk of future anti-social behavior. The psychologist described the girl as struggling with her parents’ divorce and with problems gaining peer acceptance after moving to middle school.

In addition to testifying about adolescent brain development, the expert opined that the girl’s desire for friendship made her particularly susceptible to her friend’s influence. The testimony was offered to establish that the girl’s dependent personality of more characteristic of a child than an adult, making her an appropriate candidate for juvenile court.

The expert also testified that the girl is likely to succeed if given a chance to participate in therapeutic programs that are offered to offenders who are housed in Wisconsin’s secure detention facility for juvenile girls. His evaluation determined that the girl is remorseful and motivated to change her life. That testimony was offered to establish that the girl is a good candidate for rehabilitation, which is the goal of Wisconsin’s juvenile justice system.

Ruling deferred

Prosecutors presented no expert evidence of their own. The judge assigned to the case announced that he would defer ruling until after the reverse waiver hearing of the other girl, which is scheduled to occur next month. Expert testimony is likely to play a critical role in that hearing, as well.