Category Archives: Expert Opinions

a judge's chair

Can an Expert Witness Serve Two Masters: Thorny Expert Issue Reaches the US Supreme Court

It’s rare that cases involving expert witness testimony make it all the way to the United States Supreme Court, and rarer still that such cases raise fascinating issues of interest to the public as well as lawyers and experts.

James McWilliams was tried in Alabama in 1986 for the 1984 rape and murder of a convenience store clerk. His court appointed lawyer asked the trial court to appoint a mental health expert* to assist them because McWilliams appeared to have psychiatric problems that could impact issues of guilt and sentencing.

Court Appoints Single Expert for Prosecution and Defense

Despite the biblical warning that no one can serve two masters, the judge trying the case appointed a single psychiatrist to serve as the expert for the court, the prosecution, and the defense.

A jury found McWilliams guilty of the crimes after a trial. At the sentencing phase of the original trial, the prosecution argued that the judge should impose the death penalty, presenting three aggravating circumstances it argued warranted the death penalty. The defense tried to establish as a mitigating circumstance that McWilliams suffered from a psychiatric condition that the judge should take into account when imposing the sentence.

A report from the court appointed psychiatrist, presented to the defense just two days before the sentencing hearing, stated McWilliams suffered from organic brain disorder and had genuine neuropsychological problems. However, based on a report from prison mental health workers, the trial judge concluded McWilliams had been faking, was not suffering from a psychiatric condition sufficient to warrant a lesser sentence, and sentenced McWilliams to death.

Two Is More Expensive Than One

After a series of countless appeals and motions in numerous state and federal courts, the case was argued on April 24, 2017 in the United States Supreme Court. The central issue: Is a criminal defendant in a capital case entitled to have a mental health expert separate from one appointed by the court for the prosecution?

One factor lurking in the background is, of course, the issue of cost. At the oral argument, recently appointed Justice Neil M. Gorsuch said he was worried that a ruling in Mr. McWilliams’ favor would open the door to all kinds of court-appointed experts, saying “Where’s the stopping point?” “Is it just psychiatry? Would we also have to apply the same rule in other kinds of medicine, perhaps? Forensic science?”

Justice Gorsuch also noted “Experts widely disagree on everything,…. That’s why you hire them. And why they cost so very much.”

Hiring a separate psychiatrist likely would have been relatively expensive. Based on the most current data from ExpertPages 2016 Expert Witness Fees & Practices Survey, the average nationwide hourly rate charged by physicians (including psychiatrists) is $458 per hour, while non-physician mental health experts (such as psychologists) charge an average of $308 per hour. The average assignment for both categories currently costs a bit in excess of $6,400. As the state would have been paying the bill because McWilliams was indigent, clearly that is a factor that impacts the willingness of judges to appoint independent experts. Yet with the decades of post-conviction legal work and appeals that resulted because he did not allow the defendant to hire a separate expert, the trial court’s failure to provide one for McWilliams undoubtedly cost the state of Alabama many times more in legal bills than what an expert witness would have charged.

Expediency of Limiting Cost Should Not Outweigh Constitutional Requirements

Having served as an expert on both civil and criminal matters, I know from personal experience how vital it can be for each side to have its own independent expert provide input to enable the lawyers to develop a case as well as testify. Experts sometimes become a de facto member of the litigation team, and assist the lawyers in terms of strategy and tactics, even if they don’t testify. That’s not going to occur when there is a single expert appointed by the court.

While a court may be interested in what a presumably totally impartial expert would have to say, and such an expert might assist the judge to better understand the issues and sift through the parties’ experts’ reports and testimony, basic human nature suggests a joint expert is unlikely to help both sides present their own optimal case. Further, it’s wholly inconsistent with the adversarial system of justice.

Certainly a shared expert would be far less expensive than multiple experts. As a taxpayer, I appreciate how judges might be loathe to spend precious state resources on psychiatrists and other experts for criminal defendants who lack the financial resources to hire lawyers and experts on their own.

As a lawyer I would find it hard to imagine how the same person who was also working for the other side could adequately assist me in the “evaluation, preparation and presentation” of my case.

As a former prosecutor, I fully subscribe to the concept that no responsible prosecutor should ever bring charges or prosecute a person unless the prosecutor is personally convinced as to the defendant’s guilt and also is of the belief that the evidence is sufficient for a reasonable jury to convict.  Prosecutors are there not solely to obtain a conviction, but to see justice done.

Prosecutors bridle at delays, and many judges come from the ranks of former prosecutors. Yet to maintain our system of justice and assure basic fairness, we have to do far more than a character in Joseph Heller’s brilliant Catch 22, a satirical novel set during World War II, suggested: “I know what I’d like to do with him. I’d like to take him outside and shoot him. That’s what I’d like to do with him. That’s what General Dreedle would do with him.”

Fortunately for criminal defendants nationwide, the prosecutor’s wishes are not the last word. The United States Constitution – as interpreted by the United States Supreme Court – controls. Thus the Supreme Court’s decision in the McWilliams case is likely to have a major impact on both the criminal justice system and the availability and use of experts nationwide.

 

* The request for appointment of a mental health expert was pursuant to a 1985 decision of the United States Supreme Court that ruled that an indigent criminal defendant is entitled to meaningful expert assistance for the “evaluation, preparation and presentation of the defense.”

Doctor

Disagreement Among Experts Does Not Prove Fraud in Medical Billings

A federal judge in Kentucky recently took the unusual step of vacating a criminal conviction based on the court’s belief that the evidence was insufficient to prove guilt. The primary evidence in the case consisted of expert testimony. The court held that mere disagreement among experts cannot support a criminal conviction for health care fraud.

Facts of the Case

Dr. Richard Paulus was charged in federal court with submitting fraudulent billings to Medicare. Federal prosecutors alleged that, while Dr. Paulus was working at a medical center in Ashland, Kentucky, he performed unnecessary cardiac surgery so that he could collect fees from government benefit programs.

Dr. Paulus treated patients for coronary artery disease (CAD), a condition that occurs when plaque builds up along an artery wall, restricting blood flow to the heart. The condition can be diagnosed in a variety of ways. One diagnostic procedure is to insert a catheter into the patient’s blood vessel in order to inject material into the artery that will allow an angiogram to be performed.

The government contended that Dr. Paulus performed unnecessary catheterizations and stent placements. The defense argued that, at worst, Dr. Paulus was guilty of being more aggressive than other cardiologists.

The government’s proof relied largely on expert testimony. At the conclusion of the trial, the jury found Dr. Paulus guilty of heath care fraud and of several counts of making false statements to the government. He was acquitted of other false statement charges.

Dr. Paulus asked the trial judge to overturn the jury verdict and to dismiss the case. He based that request on his contention that the government’s case was based solely on the fact that medical experts disagreed with each other.

Expert Testimony

The charge of health care fraud required the government to prove that Dr. Paulus intended to defraud a health care benefit program with regard to the payment of benefits. The benefits in this case were Dr. Paulus’ fees.

In some health care fraud schemes, a doctor bills for services that were never performed. In this case, there was no dispute that Dr. Paulus performed the procedures for which he billed. The government, however, contended that the procedures were unnecessary because Dr. Paulus inserted cardiac stents in blood vessels that did not have at least 70{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} blockage.

The government’s primary proof of fraud came from four expert witnesses who reviewed the medical records of Dr. Paulus’ patients. The medical experts testified that Dr. Paulus’ “angiogram assessments were incorrect and that the stent procedures were unnecessary.”

The government also relied on six cardiologists and one neurologist who agreed that Dr. Paulus performed unnecessary procedures. The experts generally relied on the American College of Cardiology standard for stenting coronary blockages. In addition, the government presented evidence that Dr. Paulus performed significantly more procedures than is common.

False Statements

To convict Dr. Paulus of making false statements, the government was required to prove that he made statements of fact to the government that he knew to be false. The government argued that he did so by submitting medical records to benefits programs that misrepresented angiogram results.

The government argued that the degree of blockage shown by an angiogram is a fact and that its medical experts established that Dr. Paulus misrepresented the facts by claiming that patients experienced greater blockage than the angiograms revealed. The court disagreed.

For the purpose of proving health care fraud, a false statement must be an assertion of fact that is capable of being proved or disproved. The trial judge noted that the government’s experts testified that cardiologists commonly disagree with each other. It is not unusual for one doctor’s interpretation of an angiogram to differ from another doctor’s interpretation. Noting that “the statutes targeting health care fraud do not criminalize subjective medical opinions where there is room for disagreement between doctors,” the court concluded that Dr. Paulus’ interpretation of the degree of blockage shown in the angiograms was a subjective opinion, not a statement of objective fact.

It did not help the government’s case that its leading expert has written textbooks that discussed the difficulty of interpreting angiograms. The textbooks explained that the wide degree of diagnostic disagreement among doctors view the same angiogram is “well known.” That writing undercut the government’s argument that expert disagreement about angiograms is so minimal that the interpretation of an angiogram can be regarded as factual, rather than the statement of an opinion.

Health Care Fraud

The health care fraud charge depending on proof that Dr. Paulus made false statements. Since the government’s expert testimony established only that doctors disagree with each other, the government pointed to circumstantial evidence of fraudulent billings. However, that evidence — primarily statements that Dr. Paulus made to his patients — was too ambiguous to support a criminal conviction.

Nor was evidence that Dr. Paulus performed a larger-than-average number of procedures convincing proof of fraud. Dr. Paulus’ salary had little relationship to the number of procedures he performed, so he had little financial incentive to defraud the government.

Judges rarely second guess juries that convict defendants based on expert evidence. When proof comes down to expert witnesses disagreeing with medical judgments made a doctor who is being prosecuted for fraud, however, expert evidence alone may not be sufficient to support a conviction, no matter how convincing the jury finds it to be.

Scales, law books

Murder Case against Aaron Hernandez Wraps Up with Expert Testimony

The high-profile criminal trial of former New England Patriot Aaron Hernandez is wrapping up in Boston, and prosecutors ended their case with testimony from medical and forensic expert witnesses called to connect Hernandez to a 2012 fatal shooting. Facing the daunting task of prosecuting a 5-year-old murder without substantial physical evidence linking the defendant to the crime, prosecutors have built their case largely on witness testimony, and called medical and forensic experts to tie all the information together in an effort to secure a conviction.

Aaron Hernandez Faces Double Murder Charge for 2012 Shooting

Hernandez, who is currently serving a life sentence for the 2013 murder of semi-professional football player Odin Lloyd, faces an additional murder conviction for his alleged role in the 2012 drive-by shooting of Daniel de Abreu and Safiro Furtado who died after suffering multiple gunshot wounds outside of a Boston nightclub. Hernandez is also facing charges of witness intimidation for shooting his former friend and marijuana dealer who claims to have witnessed the murder in an effort to keep him quiet.

Although the prosecution called several witnesses who associated with Hernandez either the night of the murders or during the immediate aftermath to connect him to the shooting, many of them were exposed as having faulty or incomplete memories, risking the chances of earning a conviction. Boston prosecutors have supplemented their reliance on witness testimony with some circumstantial evidence, including text messages between Hernandez and his associates and even the defendant’s tattoos, but there is a lack of physical evidence which can secure a guilty verdict.

In an effort to complete the story of their case, prosecutors called expert witnesses to explain how the physical and forensic evidence suggests Hernandez killed the two victims.

Expert Witnesses Called for Forensic Testimony in Hernandez Murder Trial

Towards the end of its case, prosecutors seeking a double murder conviction against Aaron Hernandez called forensic expert Michael Haag to help recreate the crime scene for jurors. Haag spent his testimony going over crime scene photos with prosecutors to explain the bullet trajectory which supports claims that the shots were fired from a vehicle directly next to the victims’ BMW. Haag also supported the prosecution’s theory that five shots were fired by pointing to forensic evidence which matched and accounted for the number of bullets police recovered at the scene.

The state wrapped up its case by calling medical expert Dr. Katherine Lidstrom from the Massachusetts medical examiner’s office to discuss the fatal injuries suffered by each of the victims. During an emotional session which saw members of the victims’ families cry or leave the courtroom, Dr. Lidstrom explained that Furtado would have died instantly after being shot in the head, but evidence suggests that de Abreu likely suffered physical and emotional pain prior to his death. According to Dr. Lidstrom’s expert testimony, de Abreau’s chest cavity was filled with blood and he did not die immediately, but suffered for several minutes.

As prosecutors wrapped up their case with forensic and medical expert witnesses, they provided testimony which supports accounts from eyewitnesses who the state leaned on to build its case. Attorneys representing Hernandez responded to each witness with an effort to discredit their knowledge of the facts, and accused the prosecution of relying on emotions to sway jurors.

Hernandez Attorneys Criticize Expert Testimony for lack of Knowledge

Attorneys representing Aaron Hernandez challenged the prosecution’s forensic and medical experts for not having enough knowledge about the case and providing irrelevant testimony. Although the prosecution’s forensic expert theorized that five bullets were fired, defense attorneys cast doubt on his conclusion by having him admit a sixth could have been involved. This difference is important as Hernandez’s lawyers attempted to use it to discredit Haag and his testimony.

The use of a medical expert to explain the manner in which the victims died drew particular ire of the defense as well, with a lead attorney for Hernandez claiming Dr. Lidstrom’s testimony was more focused on swaying jurors’ emotions rather than providing evidence against the defendant. Saying the case was “high on emotion and low on evidence,” attorney Jose Baez told reporters that he believed the prosecution failed to meet its burden with substantial evidence. As the case against Hernandez wraps up, defense attorneys will need to focus their efforts on using evidence or counter-expert testimony to successfully discredit the prosecution’s case against an unpopular and unlikable defendant.

Texas flag and gavel

Texas Court Concludes Expert is Qualified to Testify that Electrical Transformer Started a Fire

The Texas Court of Appeals was recently asked whether a witness who had no engineering degree could provide expert testimony about the cause of a fire started by an electrical transformer and about the public utility’s duty to maintain the transformer. The Court of Appeals reversed the trial court’s decision to exclude the testimony.

Facts of the Case

Property owners in Houston sued CenterPoint Energy Houston Electric, alleging that CenterPoint’s negligence was responsible for a fire that destroyed a house and a commercial building. The property owners claimed they suffered $2 million in property damage and lost profits as a result of the fire.

CenterPoint maintained a light pole with a transformer between the two structures. The Harris County Fire Marshal determined that a spark from the transformer probably ignited vegetation that started the buildings on fire. The Fire Marshal did not determine the cause of the suspected malfunction that produced the spark.

Texas courts have held that a public utility, like every other business, has a duty to use reasonable care to avoid harming the public. The standard of care that is required is commensurate with the danger posed. Sensibly enough, more dangerous situations require greater care. Texas courts have concluded that whether a utility breached its duty to exercise reasonable care must be established by expert testimony.

To prove that CenterPoint was responsible for the fire, the property owners offered the expert testimony of Michael McGraw. CenterPoint asked the trial court to exclude McGraw’s testimony on the ground that he was not qualified by education or experience to offer opinions about the workings of the transformer, the cause of a fire, or the standards that a utility company should follow to assure the safety of the public.

The trial court agreed with CenterPoint. It excluded McGraw’s opinions and then granted summary judgment in favor of CenterPoint because, without McGraw’s opinions, the property owners could not prove that CenterPoint’s negligence caused the fire. The property owners appealed.

Qualifications of Expert

Texas judges must determine whether an expert witness has actual expertise in the subject about which the expert proposes to testify. General experience in a specialized field does not qualify a witness as an expert. Rather, Texas courts require the expert to have specialized knowledge that is relevant to the subject of the testimony.

Specialized knowledge can come from education, from practical experience, or from a study of technical works. McGraw completed extensive coursework in electrical engineering, although his Bachelor degree is in business administration. During lengthy employment with General Electric and Powercon Corporation, he was responsible for the design, development, and testing of electrical distribution equipment. He also owned and operated his own company that specialized in manufacturing medium-voltage transformers.

McGraw has worked with transformers that are similar to the one owned by CenterPoint since 1978. He has worked exclusively with transformers since 1996. He testified that the same engineering principles apply to all similar transformers.

While McGraw does not have a degree or a license in electrical engineering, the appellate court decided that his extensive knowledge and experience qualifies him to testify as an expert. The court concluded that McGraw is capable of giving relevant testimony that would assist the jury in understanding how a transformer might malfunction.

Standard of Care Testimony

McGraw concluded that at least three safety components on the transformer failed and that those failures caused or contributed to the fire. His expert report opined that a utility exercising ordinary and reasonable care would maintain its equipment in good working order to avoid a failure of those components. He also opined that none of the components that failed were likely to fail if they were installed correctly, inspected, and repaired or replaced if they began to show wear. If the components had been maintained in good working order, McGraw said, it is unlikely that they would have failed.

CenterPoint argued that, notwithstanding those opinions, McGraw was not qualified to testify about the standard of care that applies to an electrical utility. The court rejected CenterPoint’s argument that only someone who has worked in the utility industry is qualified to address the standard of care that utility companies should follow.

The court was satisfied with McGraw’s statement that he relied on industry codes and published standards in forming his opinions. He was sufficiently familiar with the utility’s duty to maintain transformers in good working order to testify that CenterPoint breached that duty.

The Court of Appeals reversed the trial judge’s exclusion of McGraw’s expert testimony. Since summary judgment in CenterPoint’s favor rested on the absence of expert proof, the Court of Appeals reversed the summary judgment. The property owners are now free to present their case to a jury, using McGraw as an expert witness.

US Georgia State Law Legal System Concept

Joey Watkins Seeks New Trial Based on Juror’s Investigation of Expert Evidence

Undisclosed is a podcast that investigates wrongful convictions. Its second season focused on Joey Watkins, who was convicted of felony murder in Georgia and sentenced to life in prison. Watkins’ conviction has also been investigated by the Georgia Innocence Project, which is seeking a new trial on Watkins’ behalf.

The petition for a new trial is based in part on a juror’s admission that she conducted her own investigation based on the testimony she heard from two expert witnesses. She voted to convict Watkins after deciding it was possible for Watkins to have been at the crime scene, contrary to the testimony of a defense expert.

Facts of the Case

Isaac Dawkins was shot in the head as he was driving home from Floyd college in January 2000. Watkins contended that he was nowhere near the site of the murder and had nothing to do with Dawkins’ death. His lawyers blamed his conviction on the emotional trial and on the depiction of Watkins as a “troublesome bad boy.”

Prosecutors claimed that Watkins resented Dawkins because Dawkins briefly dated Watkins’ girlfriend during one of several “breaks” in their relationship. By the time of the murder, however, that relationship had ended and both Watkins and his former girlfriend were dating other people.

Dawkins’ best friend told the police that Watkins was Dawkins’ only enemy. Undisclosed assembled a “people map” of ten teens and their shifting alliances, many of whom testified as prosecution witnesses. The podcast suggests that some of the teens enjoyed the drama of being in the spotlight, but their hearsay accounts of conflicts between Watkins and Dawkins seem more the stuff of legend than reality.

For example, while several of the teens claim that Watkins shot at Dawkins on an earlier occasion, none of them actually saw Watkins and the police who were summoned to the scene found no evidence that the locked house from which the shot was allegedly fired had been occupied. The story nevertheless proved to be a popular rumor as it was told and retold in the months that followed.

In reality, Watkins was in a different state at the time of the alleged shooting. The police found no evidence that a shot was fired, but even if it was, Watkins could not have been the shooter.

The unfounded rumor not only persisted, it convinced the police that Watkins was the most likely suspect in Dawkins’ later shooting. Prosecutors claimed that Watkins conspired with Mark Free, who either drove the car from which the shot was fired or actually fired the shot. Free was charged in a separate case and a jury found him not guilty. Unfortunately, related verdicts that are logically inconsistent are not a basis for reopening a guilty verdict in Georgia.

Cellphone Evidence

Watkins spent the afternoon of the murder fishing in Alabama with his uncle. He called and texted his girlfriend several times during the day and, after he got home, made some additional calls to arrange another fishing trip. Watkins says he was driving to his girlfriend’s home that evening when he passed a crashed truck that he recognized as belonging to Dawkins. Two hours later, after visiting his girlfriend, he passed the truck again on his way home.

Dawkins’ truck crashed at 7:18 p.m., but it took the police an hour to notice that Dawkins had been shot in the head. Watkins maintains he left his home at 7:15 p.m. and could not have been in the vicinity of the crash at that time.

Watkins’ cellphone records show that he made a 4-minute call that began at 7:15 p.m. The prosecution relied on an expert witness from Verizon who testified that the call was transmitted through a tower in Kingston.

According to the prosecution, the call could place Watkins near the murder scene if the cell phone was “at an adequate elevation and on the border of the Kingston coverage area.” The defense countered with an expert from Georgia Tech who testified that call could not have been made at a location just minutes away from the shooting scene because there were “just too many hills in the way.”

Juror Misconduct

Jurors are supposed to base verdicts on the evidence they hear in court and nothing else. The judge in Watkins’ case admonished the jurors “not to go measuring distances or stopping by the scene or investigating on your own.” Unfortunately, one of the jurors did just that.

During a weekend break in deliberations, when the jury was 10-2 in favor of conviction, one of the jurors drove to the scene of the shooting from the closest point where she believed the cellphone could have connected to the tower. She timed the drive and concluded that Watkins could have made it to the murder scene after he initiated his call and before the shot was fired. She then changed her vote to “guilty.”

Watkins is basing his request for a new trial on that juror’s misconduct. Watkins’ lawyers also contend that evidence undermining the prosecution’s proof of guilt was withheld from the defense during Watkins’ trial. Among other withheld evidence, the prosecution failed to disclose that the police did their own drive test, the results of which were presumably unhelpful to the prosecution’s case.

Jimmy “Superfly” Snuka

Expert Witness Convinces Court that “Superfly” is Incompetent to Stand Trial

Jimmy “Superfly” Snuka, a retired professional wrestler, will not face a trial for causing the death of his mistress in 1983. Accepting expert testimony offered by the defense, the court agreed that the 73-year-old Snuka is not competent to stand trial. The court therefore dismissed the charges.

Allegations of Murder

A native of Fiji, Snuka lived with his family in the Marshall Islands before moving to Hawaii. He became a bodybuilder, earning the titles of Mr. Hawaii, Mr. Waikiki, and Mr. North Shore before turning his attention to professional wrestling. Snuka had a successful career in the World Wrestling Federation until 1992, and continued to make guest appearances at special events until his 2015 arrest.

On May 11, 1983, Snuka was taping a WWF event at the Allentown Fairground in Lehigh Valley, Pennsylvania. Snuka went to his hotel room in Whitehall, where Nancy Argentino was staying. Argentino and Snuka occasionally spent the night together when Snuka was not home with his wife.

Snuka told the police that he entered the room and found Argentino gasping for air. He called the front desk and hotel employees called an ambulance. Paramedics took Argentino to the Lehigh Valley Hospital, where attempts to save her life were unsuccessful.

An autopsy, which the district attorney’s office refused to release for the next three decades, concluded that Argentino suffered from head injuries. A forensic pathologist also found two dozen cuts and bruises on the body. The pathologist concluded that the death was suspicious and recommended that it be investigated as a potential homicide.

The police identified Snuka as a “person of interest” but he was never charged with Argentino’s murder. The case remained open and under investigation for the next 32 years.

Charges Filed

In 2013, reporters for The Morning Call investigated Argentino’s death. Their report of the details of the case apparently motivated the Lehigh Valley District Attorney to take “a fresh look” at the evidence.

The strongest evidence against Snuka, apart from his connection to Argentino, consists of admissions he allegedly made to various people that he shoved Argentino, causing her to hit her head. Snuka later said that his statements were misunderstood and that Argentino slipped and hit her head after stopping to go to the bathroom at the side of the highway. What Snuka told the police cannot be verified because a tape recording of Snuka’s police interview has “gone missing” from the police evidence locker.

The district attorney acknowledged that no new evidence had surfaced and that the case against Snuka “hadn’t improved with age.” The medical examiner also told the press that “clear-cut forensics weren’t there” and admitted that the forensic evidence did not establish “a clear-cut case” of murder.

The district attorney nevertheless asked a grand jury to indict Snuka. The medical examiner told the grand jury that Argentino’s brain injury probably occurred 12 to 24 hours before her death. He testified that the injury was consistent with her moving head striking a stationary object, but not consistent with a fall. Of course, the science of brain injuries has advanced considerably since the medical examiner formed that opinion.

Grand juries nearly always follow a prosecutor’s lead. Predictably, the grand jury charged Snuka with third-degree murder and involuntary manslaughter. The grand jury alleged that Snuka repeatedly assaulted Argentino “and then allowed her to lie in bed … without receiving the necessary medical attention.”

The defense contends that other evidence casts substantial doubt on the prosecution’s case. A gag order, however, prevents either party from discussing the evidence outside of court.

Competency Challenged

The Constitution forbids bringing criminal defendants to trial unless they are mentally capable of understanding the charges and assisting in their defense. Challenges to a defendant’s competency to stand trial are usually supported by psychologists, psychiatrists, neuroscientists, and other experts who evaluate a defendant’s ability to understand legal proceedings.

Snuka’s attorney contended that Snuka suffers from dementia and is not competent to stand trial. He theorized that substance abuse and head injuries sustained during his wrestling career accounted for the dementia. The presiding judge held four hearings to consider evidence in support of that allegation.

Testifying for the prosecution, forensic psychiatrist John O’Brien told the judge that Snuka changes his behavior according to the situation. He testified that Snuka “doesn’t behave in a manner that suggests oblivion.”

That testimony was contradicted by forensic psychologist Frank Dattilio. Testifying for the defense, Dattilio said that Snuka is a “shell of a man” who does not even know why he is in court. Dattilio testified that Snuka’s brain is shrinking.

Court’s Ruling

The judge questioned Snuka before ruling. She rejected the prosecution’s contention that Snuka was faking dementia, commenting that she didn’t think Snuka was smart enough to give a convincing performance. She observed that Snuka could not effectively testify in his own defense because an attorney “could get him to say or agree with anything on the witness stand.”

She also noted that delaying the prosecution for 30 years contributed to the difficulty of giving Snuka a fair trial in light of the mental impairment that he has suffered. That might have been a subtle way of suggesting that reviving a criminal investigation after three decades because of a newspaper story does not serve the ends of justice.

After the judge ruled that Snuka was not competent to stand trial, she rejected the prosecution’s request to order Snuka into involuntary treatment. Forced treatment can be an option when a mental impairment can be cured by medication, but dementia typically does not respond to treatment.

The judge instead told the parties to come back to court in six months. The judge received an update of Snuka’s condition in December. Learning that his health had deteriorated and that he is now receiving hospice care, the judge concluded that Snuka will not regain competency to stand trial. She therefore dismissed the charges.

Paparazzo Photography [CC BY-SA 3.0 or GFDL], via Wikimedia Commons

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.

Memories

Expert Witness Questions the Nature of Memories

An expert witness has challenged the nature of memory in the trial of Brent Hawkes, a longtime leader of Toronto’s gay community who is facing one charge of indecent assault and one charge of gross indecency for allegedly having oral sex with a 16-year-old more than 40 years ago.

The Incident

Hawkes has been accused of performing sex acts on a teenage boy when he was a teacher in Nova Scotia’s Annapolis Valley. The alleged incident took place over 40 years ago, when Hawkes was still in his mid-20s.

Hawkes has denied the allegations. Hawkes was charged with indecent assault and gross indecency. He pleaded not guilty to both offenses.

The case against Hawkes is based almost entirely on the eyewitness testimonies of three witnesses. One man testified that when he was about 16 years old, Hawkes led him down a hallway during a drunken get-together at his trailer and forced oral sex on him in a bedroom. Two other witnesses corroborated his testimony.

The Expert’s Testimony

Hawkes’ attorney, Clayton Ruby, called Timothy Moore to testify for the defense.

Timothy Moore is a cognitive psychologist and the chair of the psychology department at York University’s Glendon College. Moore has testified as an expert in approximately 50 trials in both the United States and Canada.

Moore testified in Hawkes’ defense on November 21, 2016. Moore testified that it is not uncommon for people who have gaps in their memories to unconsciously insert memories into those gaps and adopt them as real. Moore stated that, “Memories can undergo a substantial amount of modification over time and the longer the time, the more opportunity for these kinds of misinformation effects to occur… The more often a memory is revisited, or recollected or rehearsed, the more confident the rememberer will be with its authenticity.”

Moore cautioned that, “I think we need to be concerned about the reliability of a 40-year-old memory anyway, simply because of the passage of time and the opportunity of misinformation effects.”

Moore also explained the phenomenon of “imagination inflation” where an imagined event over time becomes indistinguishable from an actual memory. Moore stated that imagination inflation is not uncommon and can be self-generated. Moore also stated that it was a “red flag” that the alleged victim’s testimony of his memories of the event continued to evolve.

Speaking about the alleged victim’s improving memories, Moore explained that, “If they’re still improving now…it appears to me that imagination inflation may be at work… ([T]he complainant) is ruminating on events that’s happened 40 years ago. That’s rich fodder for imagination inflation.”

Cross-Examination

Crown lawyer Bob Morrison cross-examined Moore. Morrison pointed to Moore’s testimony that people tend to remember events that are unique, significant, or personal. Morrison also pointed to testimony that indicated that incoherent or incomplete memories are not necessarily false.

Morrison asked, “Would an example of that kind of memory be a group of high school students going to a party and one of them observing a teacher performing oral sex on another participant of the party?” Moore responded, “Yes.”

Drugs

Expert Testimony Allowed in Vehicular Homicide Trial

Testimony from an expert witness with a contrary view of Ohio’s drugged driving laws was admitted in an aggravated vehicular homicide trial against Curtis Hull.

The Incident

On November 8, 2015, Chelsie Alaimo was crossing the street in Mount Vernon when she was struck and killed by a 2005 Chevy Trailblazer driven by Hull. Hull was reportedly impaired at the time of the incident, with high levels of marijuana, cocaine and heroin in his system.

Alaimo, who was 17, was also a senior at Mount Vernon High School. Following Alaimo’s death, students a Mount Vernon High School were notified of the death and told that counselors were present for anyone who needed assistance. Alaimo was an eight-year member of the band and four-year member of the Mount Vernon High School Marching Band. She was very active in many clubs and organizations at the High School.

The Trial

The driver, Curtis Hull, was charged with one count of vehicular homicide, which is a second-degree felony; one count of operating a vehicle under a controlled substance, which is a first-degree misdemeanor; and three counts of operating a vehicle under the influence of a listed metabolite of a controlled substance, which is a first-degree misdemeanor. Hull was held in Knox County Jail on a $250,000 cash bond. At the time of his charging, Hull also had an unrelated felony possession of cocaine charge pending against him.

Hull was originally represented by Public Defender Brandon Crunkilton. Hull decided to hire his own attorney, after Crunkilton reportedly told him that he was “screwed.” Crunkilton withdrew as counsel on February 17, 2016. Since Hull did not obtain an attorney as of late April, 2016, he was assigned another attorney. Hull is being represented by Knox County Public Defender Bruce Malek. Malek became Hull’s attorney of record on April 28, 2016.

The Expert

The Defense team filed a motion seeking to allow the testimony of Ohio State University college of pharmacy professor emeritus Alfred Staubus as an expert witness. Staubus has a Pharm.D. and a Ph.D. In addition to being an emeritus faculty member of The Ohio State University College of Pharmacy, Staubus is also is president of A & A Consultants, Inc. Staubus provides consulting and expert testimony in the area of forensic toxicology of alcohol and other drugs. He is a member of many professional and scientific organizations, including the Toxicology Section of the American Academy of Forensic Sciences and the Society for the Scientific Detection of Crime of which he is a past president.

Staubus reportedly has a “contrary view of Ohio’s drugged driving laws.” Knox County Prosecuting Attorney Chip McConville filed a motion seeking to bar Staubus from testifying.

Curtis Hull is currently scheduled to be tried by Jury in Knox County Common Pleas Court beginning December 13. Hull faces up to eight years in prison on the aggravated vehicular homicide charge.

The motion was heard and the presiding judge determined that Staubus would be allowed to testify.

Montana Death-row Inmates Question Expert Witness Testimony

Death-row inmates Ronald Allen Smith and William Gollehon are “questioning whether state Department of Justice officials told an expert witness to change his testimony to bolster their failed argument that a substitute drug met the legal requirements for use in executions,” according to AP News.

The Trial

Montana previously used sodium pentothal in its lethal injections, but that drug is no longer available in the U.S. for executions. Montana officials named pentobarbital as a substitute. Montana law requires an “ultra-fast-acting” drug for executions but that is not a precise or scientifically defined term. At Smith and Gollehon’s trial, State attorneys argued unsuccessfully that pentobarbital, which has never been used in a Montana execution, meets the “ultra-fast-acting” requirement.

The State’s expert, Auburn University pharmacy school dean Roswell Lee Evans, wrote an expert declaration in March 2015 that did not address the “ultra-fast acting” requirement. In April 2015, he supplemented that declaration by adding pentobarbital could be considered “ultra-fast acting” but that it is classified differently.

District Judge Jeffrey Sherlock effectively stopped all executions in the State of Montana by ruling that one of the two drugs that the state used in its lethal injections did not meet the requirement that it be an “ultra-fast-acting barbiturate.” Montana does not have alternative barbiturates available for use in lethal injections.

Request to Reopen Case

According to ACLU of Montana Legal Director Jim Taylor, one of the attorneys representing Ronald Allen Smith and William Gollehon, “Had the expert not changed his testimony, we would not have gotten to trial…We want to know what happened. We just want a hearing and we’ve been trying to get a hearing for a year.”

Taylor claims that Evans testified in a separate case in Tennessee in which he was asked about his testimony in the Montana case. According to a transcript of that case, Evans was asked whether the Montana attorney general needed him to say pentobarbital was ultra-fast acting and he wrote that it could be. Evans responded, “Could be…That’s not how it’s classified.”

Based on Evans’ testimony, Taylor argues that it appears state attorneys persuaded Evans to change his original declaration. “A fair reading of Evans’ testimony … is that someone from the Montana Attorney General’s Office told Evans that what he had said in his first expert report was insufficient, and that he needed to change his opinion to fit what the defense required.”

The Response

In court documents filed in response to the inmates’ request to preserve evidence and re-open the case, Assistant Attorney General Ben Reed stated the accusation is groundless and that their expert, Evans, gave consistent testimony. Reed argued that Evans’ testimony was consistent because barbiturates are typically classified by their duration (“ultra-short acting”) and not rapidity (“ultra-fast acting”). Reed claims that when Evans’ statements are read together, they are consistent and explain that while it is not classified as “ultra-fast acting” it could be described that way because the drug’s onset is incredibly fast.

Judge’s Action

District Judge Deann Cooney agreed that “Dr. Evans’ testimony in [the Tennessee case] raises serious questions about whether he changed his testimony to reflect what the defendants wanted him to say as opposed to what he believed to be true.” The judge granted a request to require the state to preserve all relevant documents so that the change in Dr. Evans’ testimony could be fully investigated.