Category Archives: Expert Opinions

Expert Witnesses Testify in New York Vehicular Murder Trial

A variety of expert witnesses were called by prosecutors last week in the trial of a Florida man accused of intentionally striking a New York State Trooper with his car.  Experts in vehicle collisions and blood splatter took the stand as prosecutors look to show the jury that the incident was not negligent, but a willful criminal act targeting a police officer engaged in a traffic stop.

Florida Man on Trial for Fatally Striking New York State Trooper

Almont Upton, 62, of Melrose, Florida struck, and killed, NYS Trooper Christopher Skinner with his car in May of 2014.  Officer Skinner was conducting a traffic stop on a New York highway when Upton hit him, leading to his arrest and first-degree murder charge.  Prosecutors dropped several other charges, including assault and reckless driving, in order to focus 100{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the case on earning a murder conviction, and not confuse jurors with other available charge options.

Upton’s defense team has proposed that the defendant could not have intentionally murdered Trooper Skinner due to a mental disease or defect which impaired his decision making at the time.  Although the defense has not expanded on its defense yet, prosecutors attempted to counter the argument that Upton did not act intentionally by calling expert witnesses to explain how the nature of the collision with Trooper Skinner suggested malice and intent necessary for a murder conviction.

Expert Witnesses Testify in Almond Upton Murder Trial

Last week, prosecutors called New York State Police Collision Reconstruction Expert Travis Webster to take the stand and explain the evidence found at the scene of the collision. Webster, a state investigator who focuses on accident reconstruction, evaluated the evidence and provided testimony which supported the prosecution’s theory that Upton acted intentionally.  According to Webster, Upton was traveling at 93 miles per hour when he hit Trooper Skinner, and had his accelerator pedal “100 percent to the floor.”  Further, Webster’s accident reconstruction expert analysis revealed that the defendant never activated his brakes, which suggests Upton did not demonstrate any effort to avoid hitting Skinner with his pick-up truck.  Finally, Webster concluded that there was nothing wrong with Upton’s truck which would have prevented him from steering out of the way or applying the brakes.

New York State Police Sr. Investigator Steve Anderson was also called to the stand as a blood stain analysis expert witness.  Investigator Anderson walked the jury through the blood stains on the hood and windshield of Upton’s truck which was caused by a direct strike on Trooper Skinner.  Anderson also pointed out blood stains on the tailgate of the vehicle, supporting the prosecution’s contention that Upton struck Skinner at a high rate of speed with intent to hit and kill him.  Anderson concluded his expert testimony by explaining that he oversaw the autopsy of Trooper Skinner and collected his clothing from the scene in order to obtain evidence for trial.

Upton’s attorneys did not aggressively question the prosecution’s expert witnesses, choosing instead to dispute the motivation and mental state of the defendant rather than the circumstances of the fatal incident.

Prosecution Presents Case for Murder while Upton Defense Prepares Insanity Plea

After presenting its accident reconstruction and blood splatter expert witnesses, prosecutors argued that Almond Upton’s actions demonstrated “precision driving” and sufficiently reached the level of intent necessary to earn a first-degree murder conviction.  Prosecutors argued that the testimony from their accident reconstruction expert shows Upton aimed to kill Trooper Skinner with his car while the officer was distracted and vulnerable before he later sideswiped two other vehicles as he attempted to make his high speed escape.

Defense attorneys representing Almond Upton will take their turn as the trial continues this week, and will undoubtedly call a mental health expert witness who will testify to the defendant’s mental state at the time of the accident.  The legal standard for insanity typically requires a defendant prove he did not understand or appreciate the consequences of his actions while committing the crime, and the evidence from the state’s accident reconstruction and blood splatter experts which suggests Upton acted with malice makes the defense strategy a longshot, regardless of future expert testimony supporting mental defect.

Fire Investigation Expert Witness Report Leads to New Trial for Chicago Man

A Chicago man convicted of setting a fire which killed two people in 1993 will receive a long awaited retrial due to evidence from fire science expert witnesses.  Prosecutors in the case have relented to repeated requests from the defense and agreed to a retrial after reviewing an expert report detailing modern advances in fire science technology which call the initial conviction into question.

Chicago Man Challenges Arson Conviction

Adam Gray has been serving a life sentence without parole since his 1996 conviction for setting a fire in 1993 which killed two people in an apartment building.  Gray, who was 14 at the time of the fire, was angry with his girlfriend and allegedly set the fire in a building where she and her parents resided.  Although the girlfriend and her family were able to escape, an elderly brother and sister who lived above the family died as a result of the fire.  In addition to a confession, which Gray now claims was coerced, prosecutors relied on the testimony from fire science expert witnesses to earn a conviction and life sentence.

During Gray’s initial trial, fire investigators testified that they found charring and burn patterns consistent with a hot fire which was set intentionally and spread with an accelerant.  Police investigators found a milk jug behind the burned building which contained what appeared to be the accelerant used to fan the fire, and a gas station clerk connected Gray to a purchase of fuel shortly before the fire was set.  In the years since the conviction, attorneys working for Gray have identified advances in fire science investigation techniques which raise questions about the validity of the conclusions by police and the testimony by fire expert witnesses.

Modern Fire Science Expert Witnesses Challenge Arson Conviction

When Gray recanted his confession after his conviction and life sentence, his new legal team set to work challenging the physical evidence which prosecutors used to argue the fire had been set intentionally.  According to his defense team, advances in fire investigation techniques suggest that the fire was not an arson at all, and what the police believed to be an accelerant was not present at the scene.  Fire expert witnesses John Lentini and Gerald Hurst produced fire investigation expert witness reports which challenged the initial findings of the investigation and prosecution of Gray.

According to Hurst, fire investigators who examined the remains in 1993 were too quick to conclude that the charring and burn patterns were evidence of an arson.  In an expert witness report to prosecutors, Hurst claimed that the fire investigators at the time did not have cause to rule out a conclusion that the fire started and spread accidentally.  Lentini contributed his expert evaluation of the fire by saying that the substance found in the milk jug – which police concluded was the accelerant Gray used to spread the fire – was not actually present at the scene.  Lentini told prosecutors that the substance in the milk jug, and the substance found on the wood of the building, were not only different, but neither were effective accelerants which could have been used to spread the fire.

Gray’s defense team presented the new fire expert witness evidence to prosecutors over a year ago, however, they were met with resistance.  After initial refusals to retry the case based on the new fire science evidence, Chicago prosecutors have finally relented.

Chicago Man to Receive New Arson Trial

After a year of refusals, prosecutors in Chicago have determined that the evidence presented by modern fire expert witnesses is sufficient to grant Adam Gray a new trial for arson and murder.  While the joint motion by prosecutors and defense attorneys for a new trial still needs approval from a local judge, the agreement by the district attorney to retry the case likely means Gray will have another day in court in the coming months.

Although the change of heart likely has a lot to do with the upcoming arrival of a newly elected DA who unseated the incumbent in a recent election, the prosecution’s willingness to retry a case with new expert witness testimony is an encouraging sign for other Chicago area defendants seeking to have convictions overturned based on advances in modern science.

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Serial’s Adnan Syed Granted New Trial Due to Questions of Expert Witness Reliability

The subject of the first season of the popular legal podcast Serial has been granted a new trial in large part due to questions about the reliability of the prosecution’s cell phone expert witness used to convict him.  An appellate court vacated the murder conviction of Adnan Syed citing the failure of his attorney to challenge the prosecution’s cell tower expert witness over some flawed logic, giving Syed an opportunity to pursue a re-trial with a different lawyer.  Prosecutors have promised to appeal the ruling, but should it stand then they will need to prepare for a second murder trial.

Serial’s Adnan Syed Granted a New Trial

Late last month, Judge Martin P Welch of the Baltimore City Circuit Court granted a motion by Adnan Syed requesting a re-trial for the 1999 murder of his former girlfriend Hae Min Lee.  Syed, now 35, was 17-year-old when he was convicted in 2000 for Lee’s murder, and has spent the last 16 years serving a life sentence in Maryland.  In 2014, the podcast Serial introduced Syed’s case to the nation, and opened up the opportunity for attorneys to question the legitimacy of the evidence used to convict the defendant, particularly testimony from a cell phone tower expert witness called by prosecutors.

During post-conviction hearings in February of this year, Syed’s attorneys presented new evidence of an alibi witness and raised questions about the validity of the prosecution’s cell phone expert.  According to Syed’s current counsel, his lawyer during the initial trial was “grossly negligent” by failing to pursue all the possible evidence which could help her client, including a counter expert who could have raised doubts about the prosecution’s case.  Defense attorneys representing Syed called the ruling an important victory, but cautioned the process is far from over as the Baltimore District Attorney still has the opportunity to appeal Judge Welch’s ruling before having to re-try Syed for Lee’s murder.

Syed Motion for New Trial Focuses on Shaky Expert Testimony

One of the central figure’s in Syed’s 2000 murder trial was a cell phone tower expert witness who the prosecution used to place the defendant at the scene of Lee’s burial.  In 2000, the state called FBI Special Agent Abraham Waranowitz to testify about how cell phone tower triangulation could identify a person’s location.  Waranowitz discussed two incoming calls to Adnan’s cell phone which arguably made it likely that he was located in an area where Lee’s body was later found at a time shortly after her death.  Waranowitz’s expert witness testimony was one of the key pieces of evidence prosecutors used to connect Syed to Lee’s death, but the expert’s reliability became a matter of interest for Adnan’s post-conviction defense team.

According to Syed’s legal team, his initial lawyer received a communication from AT&T which provided instructions on how to read and interpret cell phone activity with a notable disclaimer regarding locating phones that read, “Outgoing calls only are reliable for location status. Any incoming calls will not be reliable information for location.”  Waranowitz’s expert testimony focused only on incoming calls, which, according to the AT&T information, are not reliable for location identification, however, Syed’s trial attorney declined to press the expert on that information.  Attorneys for Syed argued that this failure to properly cross-examine an expert witness represented a grossly negligent failure by Adnan’s trial lawyer.

Appeals Judge Grants Adnan Syed a New Trial Citing Expert Testimony

Judge Welch agreed with Syed’s legal team, and found the failure to question the state’s cell phone tower expert about a notable flaw in his conclusion to be a key factor in granting the defendant a new trial.  Judge Welch pointed out the state’s expert was “directly contradicted by the disclaimer” and went on to note that “A reasonable attorney would have exposed the misleading nature of the state’s theory by cross-examining Abraham Waranowitz. The record reflects, however, that trial counsel failed to cross-examine Waranowitz about the disclaimer.”

Judge Welch’s ruling does not guarantee Syed a new trial, but with a sound legal reasoning and legitimate questions about the reliability of the expert witness who helped put the defendant in jail, Adnan’s legal team has expressed optimism that the ruling will survive appeals.  Should Adnan Syed be officially granted a new trial, his high-profile legal team will certainly present new cell phone expert witness testimony to contradict the state’s key piece of evidence which connected Syed to the scene of Lee’s burial.

Music Experts Testify in Stairway to Heaven Plagiarism Trial

Music expert witnesses have testified on behalf of plaintiffs in the Stairway to Heaven plagiarism lawsuit being heard in a US federal court.  The rock band countered with a music expert of their own, giving jurors the opportunity to weigh expert opinions should the case proceed.  The high profile copyright lawsuit against the surviving members of Led Zeppelin will continue this week with a ruling expected in the near future.

Led Zeppelin Sued for Stairway to Heaven

Earlier this month the long anticipated copyright lawsuit against the surviving members of Led Zeppelin over their hit song Stairway to Heaven began in a federal US District Court.  Plaintiff Michael Skidmore, the trustee managing the estate of songwriter Randy Wolfe (stage name, Randy California), filed the lawsuit alleging Zeppelin stole key pieces of music found in Stairway to Heaven from Wolfe’s song Taurus.  Taurus was written by Wolfe while he performed with a 60’s era rock band known as Spirit, and the plaintiff argues that members of Led Zeppelin had heard the song and liked it so much that they used its musical foundation to generate Stairway to Heaven.

The Stairway to Heaven lawsuit has been percolating for several years with Wolfe, who died in 1997, accusing Led Zeppelin members Robert Plant and Jimmy Page of stealing the song in the late 1960’s after a concert in which the two bands shared a billing.  Plant and Page have steadfastly denied remembering the song or knowing who Spirit was, and have argued that while they may have heard the song before there is no evidence that they intentionally stole from Wolfe.  According to the defendants, any musical similarities are coincidental.  While the plaintiffs have provided several pieces of circumstantial evidence – the songs were written only years apart, the two bands performed on the same billing, and Page once praised Spirit in an interview – the case lacks hard evidence that Page or Plant intentionally stole the musical foundation of Taurus when composing Stairway.

In order to demonstrate unlawful plagiarism on the part of Led Zeppelin, attorneys for Skidmore called two music expert witnesses to explain the similarities between Taurus and Stairway to Heaven which the plaintiff argues are too striking to be coincidence.

Music Expert Witnesses Testify in Stairway to Heaven Trial

Skidmore’s attorney Francis Malofiy concluded his case by calling two music expert witnesses to the stand to connect the musical dots between Taurus and Stairway to Heaven which the plaintiffs argue provides evidence of plagiarism.  Professional guitar player Kevin Hanson, who has played rock music for years and now teaches guitar lessons, took the stand and played key passages from both songs on his acoustic guitar in the courtroom.  Hanson told the jury that the songs are “virtually identical,” and when the two songs were played simultaneously he testified that they sounded like one piece of music.  Attorneys for Led Zeppelin had Hanson admit during cross examination that he could easily tell the two apart, but the music expert maintained that the similarities between the two pieces of music were significant.

Dr. Alexander Stewart, a musicologist, took the stand as the second music expert witness called by plaintiffs in the Stairway to Heaven lawsuit.  Dr. Stewart testified that the two songs have identical downward chord progression in some places, and the “note pairs” which represent iconic components of Stairway to Heaven are shared with note pairs in Taurus.  Telling jurors that both Taurus and Stairway included a unique and unusual progression from an E note to an A note which suggests Page and Plant were familiar with Spirit’s work before writing Stairway.

Attorneys for Led Zeppelin countered with an expert witness who explained to the jury that the two songs had significant differences, and any similarities between them were likely due to common musical “building blocks” many songs share.

Led Zeppelin Presents Expert Witness in Stairway to Heaven Case

Attorneys for the former members of Led Zeppelin sued for allegedly plagiarizing portions of Stairway to Heaven from the Spirit song Taurus called Dr. Lawrence Ferrara, a musicologist from NYU, as a defense music expert witness to discuss the two pieces of music.  Dr. Ferrara, who played both songs on his piano in order to demonstrate differences, told jurors that the songs were largely dissimilar, even in areas that the plaintiff alleges were identical.  Dr. Ferrara went on to play other pieces of music which were arguably similar to both Taurus and Stairway in order to demonstrate to jurors that there are building blocks of music which overlap across many songs, suggesting that any similarities between Taurus and Stairway to Heaven are coincidental rather than unlawful.

Members of Led Zeppelin have asked the judge to dismiss the case by alleging the plaintiffs failed to meet an adequate burden of proof.  A ruling is expected later this week.

Ethics Expert Aids in Corruption Conviction of Former Alabama Speaker of the House

The former Alabama Speaker of the House was convicted on corruption charges in part due to ethics expert witness testimony from a past director of Alabama’s Ethics Commission. Prosecutors called the ethics expert in order to explain to jurors the rules that politicians in Alabama must follow when they have personal business interests which could benefit from state funding.

Alabama Speaker of the House Convicted Corruption Charges

Mike Hubbard, the Republican former Speaker of the House for Alabama’s legislature, was convicted last week on 12 of 23 ethics violations for using his political position to earn contracts for companies which he either owned or had financial interest in.  Hubbard was found guilty of using his position as a speaker and as a leader of the Alabama Republican Party to funnel money to two of his companies: Craftmaster Printers and the Auburn Network, a broadcast company in the state.  Prosecutors argued that Hubbard attempted to obtain up to $2.3 million in government contracts or financial favors by exerting his influence over Alabama politics.

After a 12-day trial, jurors convicted Hubbard on 12 counts of ethics violations, including “voting on legislation with a conflict of interest and using his office for personal gain through a consulting contract.”  Hubbard was taken into custody and faces up to 20 years in prison for each of his convicted counts with a sentencing trial set for July 8th.  Hubbard’s ethics trial could be the tip of the iceberg as current and former governors of Alabama may also be charged with abusing their office for personal gain.

A key component of the prosecution’s case against Rep. Hubbard was testimony from an ethics expert witness who not only explained the ethical rules Alabama politicians must follow, but pointedly identified instances where the former speaker had directly violated his lawful obligations.

Alabama Ethics Expert Witness Aids in Corruption Conviction

Former director of the Alabama Ethics Commission Jim Sumner took the stand during Mike Hubbard’s corruption trial as an ethics expert witness and explained to jurors that the former Speaker of the House did not consult the commission when he engaged in questionable business dealings between the state and companies that he held a financial interest in.  According to Sumner, the ethics commission was not consulted before Hubbard supported laws which provided thousands of dollars to companies which he was linked to, with ethics officers only finding out about potential conflicts of interest after it was too late to advise on the matter.

Sumner also testified as an ethics expert witness by explaining to jurors that public officials in Alabama cannot act in their official capacity on issues which could benefit themselves or businesses in which they hold an interest.  Sumner told the court that the Alabama Ethics Commission is available to public officials should they have questions, but no public official, including the Speaker of the House, is allowed to vote on or support legislation which would benefit his or her business interests.  According to the Alabama ethics expert, the law prohibiting conflict of business and political interests is purposefully broad in order to discourage even the hint of corruption in state politics.

Sumner concluded his testimony by telling jurors that he had a working relationship with Hubbard which suggested the defendant was keenly aware of the applicable ethics laws.

Prosecutors Connect Former Alabama House Speaker to Illegal Corruption

After calling the ethics expert witness, Alabama prosecutors offered substantial evidence that former Speaker Mike Hubbard tied his business and political interests together in violation of ethics law.  Former business associates and executives for companies which Hubbard held a personal stake in testified that the Speaker’s position made him an attractive consultant and that companies he worked with received hundreds of thousands of dollars in the form of state government contracts.

Hubbard has maintained that he was conducting lawful business with friends and associates, and that he did not consult with the ethics committee because he was not engaged in corrupt or illegal behavior.  Hubbard’s defense team pointed out that he frequently consulted with ethics expert Jim Sumner on other matters, and did not demonstrate a pattern of corruption which warranted conviction.  Jurors disagreed, and in one month one of the most powerful Republicans in Alabama will receive a potentially lengthy jail sentence for ethics violations.

Expert Witnesses Testify in Coast Guard Investigation of Maritime Tragedy

A formal investigation into the fatal sinking of a cargo vessel during a hurricane featured expert witness testimony from a former captain of the ship and an expert on navigating storms.  Experts testified during a public hearing with the goal of helping the review board determine potential liability and identifying opportunities for improved safety measures on large cargo ships.

Federal Investigation Hearings review the Sinking of Cargo Ship El Faro

Last week, the U.S. Coast Guard Marine Board of Investigation held the second of three rounds of investigatory hearings regarding the 2015 sinking of the ocean cargo ship El Faro.  On October 1, 2015, the El Faro sank near the Bahamas while en route to Puerto Rico when it navigated into the path of Hurricane Joaquin.  All 33 souls on board died in one of the worst maritime disasters of a US ship in more than 30 years, and the Coast Guard subsequently took up the investigation in order to identify potential gaps in safety and communication which may have caused the tragedy.

During the course of the hearings, the Coast Guard’s investigatory board heard testimony on shipping standards, inspection requirements, communication practices in the shipping industry, and navigation strategy when approaching hurricanes.  Tote Maritime, the company El Faro shipped for, and inspectors employed by the Coast Guard came under particular scrutiny for potential failures in ship maintenance and safety reviews, with expert witnesses on ocean shipping coming before the board to offer information which may help investigators reach conclusions about the disaster and determine future safety procedures.

Expert Witnesses Testify in El Faro Sinking Hearings

Former El Faro captain Jack Hearn testified before the investigative committee about the ship’s performance during cargo runs.  Captain Hearn, who sailed the ship when it was known as the Northern Lights and operated out of Alaska, testified as an expert in navigating and managing the El Faro.  Hearn told the committee that the ship was more difficult to control when it carried cargo containers, and that the hatches could not open after the ship was underway.  Had the hatches opened, the ship could better manage water intake during storms, and become more difficult to sink.  Hearn also told investigators that it was customary for delays of up to several hours before captains were given permission to change course, saying that Tote Maritime’s delay in responding to El Faro’s request to alter its heading before the crash was not uncommon.

James Franklin, a hurricane expert witness, testified before the committee about the challenges of predicting the movement of Hurricane Jaoquin.  According to Franklin, the hurricane was predicted to move away from the United States and out of the El Faro’s planned route to Puerto Rico before the storm unexpectedly stopped and moved directly into the ship’s path.  The hurricane expert told Coast Guard investigators that the southward motion of the storm which caused the unexpected change in direction is unusual, particularly considering how strong of a storm Jaoquin was.  Both Franklin and Hearn noted that navigating when hit by a hurricane is difficult as the ship would just be trying to stay afloat, suggesting that once the El Faro was hit by the storm there was very little crew members could have done.

Coast Guard Inquiries into El Faro Sinking will Continue

In addition to experts on piloting the large cargo ship and on hurricane storms, the Coast Guard investigators heard testimony about safety and inspection practices customary for the maritime shipping industry.  Captain Hearn’s testimony about some of the features of the El Faro which may have exposed vulnerabilities could lead to changes in inspection requirements and safety standards, and Franklin’s expert hurricane testimony may suggest the need for greater caution when navigating near or around potential hurricane pathways.

The Coast Guard announced it will conduct one more series of hearings later this year before announcing its findings of liability and responsibility for the El Faro’s sinking.  The investigative board hopes to have the ship’s data recorder which contains information about the El Faro’s final 12 hours, but the device will be difficult to recover from the wreckage.  Without hard evidence of the El Faro’s fateful voyage, the investigators will continue to rely on maritime shipping expert witnesses in order to assess responsibility for the tragedy.

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Florida Supreme Court set to Hear Arguments in Battle over Expert Witness Qualifications

A legal fight over expert witness qualifications in Florida is going to the state Supreme Court for a final decision.  Since 2013, businesses, legislators, and attorneys have engaged in a dispute over what the appropriate legal standard for expert witness qualification should be, and the Florida Supreme Court has finally agreed to rule on the issue and hear arguments in early September.

Florida Legislature Pushes for Daubert Expert Witness Standard

In 2013 the Florida legislature passed a bill which elevated the standard used to evaluate expert witness qualifications from the Frye test to the Daubert test.  Unlike the Frye test, which allows an expert to testify if his experience and content of his testimony are accepted by his professional field, the Daubert test for expert witnesses requires judges to thoroughly evaluate the testimony to make sure it is relevant to the trial and valid.  Under the Daubert standard, trial judges must determine if the testimony is based on adequate facts or data, has been generated from reliable research principles and methods, and is the result of a proper application of the research principles and methods used. While judges still look to accepted practices of the expert’s professional field for guidance, the Daubert standard requires more careful evaluation of testimony before it is admissible.

The stricter Daubert test is used by the Federal judiciary and a majority of the states, but Florida has held onto the lessor Frye test, largely with the support of plaintiff attorneys and judges who prefer an expert witness standard which favors admissibility.  In 2013, however, members of the business community and a coalition of defense attorneys were able to convince the Florida legislature that the Frye test exposes trials to “junk science” and unqualified expert witnesses because it is not restrictive enough, and as a result the lawmakers legislatively imposed the Daubert standard on all judicial proceedings in the state.

The move has not come without controversy, and over the last 3 years since it passed judges and plaintiffs’ attorneys have consistently rejected its implementation, culminating earlier this year in a recommendation from the Florida Bar Board of Governors that the state Supreme Court dismiss the law and retain the Frye standard for admissibility of expert witness testimony.

Florida Bar Association Calls for Frye Expert Witness Standard

Opponents of the Daubert standard argue that it unfairly restricts the expert witnesses that plaintiffs are allowed to call by placing unnecessary restrictions on admissibility.  Plaintiffs’ attorneys argue that increased standards on expert witness admissibility only serves to drive up the cost of litigation which will make filing and pursuing lawsuits prohibitively expensive for some clients.  Frye test proponents argue that a simpler test for expert witness qualification provides greater access to the legal system by not eliminating potential claims based on the financial resources of litigants.

Beyond ideological opposition to the Daubert standard, opponents of the 2013 Florida law argue the legislature does not have the authority to establish judicial rules of evidence.  In a report released in March of this year, the Florida Bar Board of Governors formally recommended that the judiciary reject the 2013 law because it overstepped the separation of powers between the judicial and legislative branches of Florida government.  According to opponents of the 2013 law, the legislature does not have the authority to tell the judiciary what the required standard for expert witness admissibility is, and the Supreme Court should therefore dismiss the law and continue with the traditional Frye test which Florida courts have used for years.

Florida Expert Witness Challenged Headed to State Supreme Court

Earlier this month, the Florida Supreme Court agreed to settle the debate about the state’s expert witness admissibility standard by issuing a final legal ruling.  Supporters of the 2013 legislation argue that the people of Florida, through their elected representatives, have expressed the desire to increase the standard for expert witness testimony in order to keep “junk science” and frivolous experts away from litigation.  Opponents of the law maintain that the legislative body does not have the authority to determine expert witness admissibility standards.

The case has gained significant attention across the state with several businesses and lawyers filing comments with the Florida Supreme Court in an effort to tilt the scales.  The central question in the dispute – whether the legislature has authority to define rules of evidence – is an interesting legal battle between state judicial and legislative branches which will impact the way in which expert witnesses can be used in Florida.

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Terrorism Expert Testifies in Trial of Minnesota Men Accused of Joining ISIS

A terrorism expert witness took the stand this week in the trial of three Minnesota men accused of joining ISIS and plotting to commit violent acts abroad.  The high profile trial highlights recent efforts by state and federal government officials to fight growing concerns over radicalization of young men who are exposed to recruitment videos by terror groups such as ISIS.

Minnesota Men Charged with Plotting to Join ISIS

In 2014 the U.S. Attorney’s Office in Minnesota began investigating activities of a group of Muslim Somali men residing in Minneapolis – St. Paul due to suspicion of conspiracy to join terrorist groups.  With the cooperation of a friend of the defendants who secretly recorded conversations, the FBI was able to identify nine possible suspects connected to a plot to fly to the Middle East and join with the terrorist network, ISIS.  The group of men allegedly met at parks and Somali shopping centers to discuss leaving the country, and were arrested after some of them drove to San Diego in an effort to obtain fake passports and leave the country.

As a result of a joint counter-terrorism effort between the FBI and local police, a total of nine suspects were detained and charged with plotting to join with and aid ISIS’s terror activities in the Middle East.  The arrests shocked the Somali community in the Twin Cities, with critics accusing the government of unfair scrutiny of Somali Americans living in Minnesota which led to unjust accusations of conspiracy to commit terrorism. Despite concerns about the nature of the investigation, six of the men have pled guilty to lesser charges.

The remaining three defendants have maintained their innocence, setting the stage for a trial which will help shape the US Government’s ongoing strategy to investigate and prosecute alleged terrorist conspirators who are exposed to radical ISIS recruitment videos.

National Terrorism Experts Testifies in Minnesota Trial

The three suspects who chose not to plead guilty – Guled Omar, 21; Abdirahman Daud, 22; and Moahmed Farah, 22 – claim that watching ISIS recruitment videos and discussing the organization with their friends does not mean they became radicalized.  In order to support their case against the defendants, prosecutors called Charles Lister, a senior fellow at the Middle East Institute in Washington, D.C., to explain the Syrian conflict and the ISIS terrorist group to jurors in an effort to help them put the defendant’s actions in context.  Lister is a terrorism expert with years of experience studying terrorism recruitment efforts such as the ones ISIS has engaged in, and was tapped by the prosecution in order to show jurors that actions like the defendants’ are indicative of terrorist radicalization.

Lister spent the early part of his terrorism expert testimony explaining the Syrian conflict and Arab Spring to jurors, and how these violent disputes gave opportunity for groups like ISIS to bolster recruitment and expand their terrorist network.  After a short break, Lister continued his testimony by focusing on the extreme levels of violence and brutality which ISIS uses to advance its ideological mission of world domination.  During his testimony, Lister explained the core tenets of ISIS, discussed the organization’s aggressive recruitment strategy, and identified symbols of the organization.  Importantly, Lister also pointed out that because ISIS has been designated a terrorist organization, it is illegal to have any relationship or contact of any kind with the network.

Lister’s three hour testimony with prosecutors concluded with the terrorism expert explaining the types of actions people who join ISIS engage in, and the allure the organization has on young Islamic men in the United States.  After he was finished with the prosecutors, defense attorneys spent the afternoon questioning him on cross examination.

Attorneys for Accused Minnesota Terrorists Question Prosecution Expert

Attorneys for the defendants took turns questioning the prosecution’s terrorism expert after the state was finished speaking with him.  The thrust of the defense seemed to be twofold: first to highlight how the complex situation is in Syria blurs the lines between good and bad; and second to question whether actions like the defendants’ really suggest conspiracy to join terrorist activities.  Defense attorneys had Lister explain that not every group in Syria which opposes the existing government is a terrorist network, suggesting that the defendants were not necessarily plotting to join a terrorist group just because they were planning to go to Syria.

Defense attorneys also questioned Lister about whether or not exposure to ISIS recruitment videos and materials meant radicalization.  Lister admitted that not everyone who watches ISIS propaganda is a terrorist before court adjourned for the day. The trial of the Minnesota men linked to a plot to leave America and join ISIS in Syria is expected to continue for several weeks as prosecutors attempt to prove that the defendants were part of a growing radicalization movement which warrants state and federal investigation.

DNA Experts Exonerate Wrongfully Convicted Indiana Man After 25-Years in Prison

A report by a DNA expert witness was key in clearing an innocent man wrongfully convicted of a 1989 rape allegation.  Late last month the former inmate greeted his family as a free man after spending nearly 25 years in prison for a crime he did not convict when DNA expert witness evidence finally exonerated him.

Indiana Man Freed From Prison with DNA Expert Evidence

In 1991 Darryl Pinkins, now 63 years old, was convicted of a brutal sexual assault on a woman for allegedly being part of a trio of men who bumped their car into the victim’s, pulled her inside their vehicle, and raped her for several hours.  During the trial and investigation Pinkins was identified by the victim as her assailant, and he was convicted despite his repeated claims that he was in bed with his wife on the night of the attack.  During the nearly 25 years Pinkins spent behind bars he maintained his innocence before being finally vindicated by DNA.

In late April, Pinkins was freed from prison and informed that prosecutors would not pursue his case further, meaning his quarter century ordeal is over.  Pinkins was greeted by his 24-year-old son, family, friends, and members of the Innocence Project – the legal aid organization which dedicates its efforts to using DNA to overturn wrongful convictions.  Pinkins has lost his teeth, suffers from diabetes, and developed thyroid disease during his lengthy prison stay, but expressed confidence that this day was meant to be because he knew that he was an innocent man.

The DNA evidence used to earn Pinkins’ release is new technology which is being used by prosecutors and police across the country to identify defendants as guilty parties, and this case is the first to take advantage of the software as a tool for exonerating wrongfully imprisoned individuals.

Darryl Pinkins Exonerated with True Allele DNA Expert Software

For the past 15 years members of the Indiana and Idaho Innocence Projects have worked together to obtain sufficient DNA evidence to free Darryl Pinkins, and a new DNA expert witness software finally provided the opportunity.  True Allele, which faces stiff legal challenges over its source code, is an increasingly popular tool which has refined forensic DNA science by improving the ability to parse out a single person’s DNA from potentially incomplete or mixed samples.  True Allele has gained traction in several eastern states by police and prosecutors who believe the software is uniquely qualified in providing accurate DNA matches which connect suspects to crimes in a way no other DNA analysis tool can.

Up until the Darryl Pinkins case, True Allele has not been used to exonerate wrongfully convicted defendants, but the lawyers and law students of the Indiana and Idaho Innocence Projects saw an opportunity to apply new DNA expert technology to their mission.  Two Innocence Projects DNA expert witnesses used the True Allele software to test the samples gathered from the 1991 crime scene, and prepared a report which informed prosecutors that Pinkins could not have been involved in the brutal sexual assault.  The experts were prepared to testify in a hearing on the matter, but after reading their DNA report, prosecutors decided to vacate Pinkins’ conviction and release him from prison immediately.

The True Allele technology was not available in 1991 when Pinkins was first convicted, but the spread of the tool has given prosecutors cause to utilize DNA expert witnesses to ensure the right defendants are prosecuted for crimes in order to avoid future wrongful convictions.

DNA Expert Preaches the Value of True Allele Software

Greg Hampikian, one of the two DNA expert witnesses hired by the Innocence Project to free Darryl Pinkins, praised the True Allele system for providing the opportunity to improve accuracy of criminal convictions.  Hampikian told reporters that he felt the tool should be used to review all DNA cases in which there were complex samples or inconclusive results by saying, “This technology holds the key not just to answering complex DNA problems, but the literal key to freedom for men like Daryl Pinkins.”  DNA experts like Hampikian believe the use of True Allele has the potential to affect convictions throughout the United States by providing defendants convicted without reliable DNA evidence the opportunity to challenge the legitimacy of their trials.

As True Allele becomes more common of a tool for police and prosecutors, it is not surprising that groups like the Innocence Project will take the opportunity to use the software as a tool to exonerate wrongfully convicted defendants.  While its wide-spread application will take time, the development of True Allele as a tool for exoneration is a foreseeable next step in DNA expert technology.

Texas flag and gavel

When Expert Opinion Amounts to Speculation

Attorneys do not often serve as expert witnesses, in part because only the judge who presides in a trial is the expert in the law that controls the case. In some cases, however, attorneys do serve as expert witnesses. They do so most often in legal malpractice cases, when they testify about the quality of representation a reasonable lawyer should provide and express opinions as to whether a particular lawyer met that standard.

An attorney was allowed to testify in a Texas malpractice case involving a technology company and its patent lawyers. The Texas Court of Appeals recently ruled, however, that the expert’s testimony was based on speculation rather than facts. Since the testimony failed to establish that the plaintiff was harmed by the alleged malpractice, the plaintiff could not prevail.

Lawsuit Background

Axcess International markets radio frequency identification (RFID) products and services. Axcess improved its technology by creating a “dual-frequency RFID system.” It hired Baker Botts, a Texas law firm, to act as its intellectual property counsel. Baker Botts began filing patent applications for Axcess in 1999. A year later, Axcess’ chief competitor, Savi Technologies, hired Baker Botts to seek patents of its own dual-frequency RFID system.

In 2002, when Savi announced the release of its new product, the Axcess employee who developed its dual-frequency RFID system thought that the Savi product might be using the same technology that Axcess had patented or that pending applications were seeking to patent. Axcess asked its Baker Botts attorney for advice. Axcess alleges that Baker Botts failed to provide the requested assistance.

Axcess then hired a new firm, Haynes and Boone, which wrote to Savi and suggested that Savi might need to license the patents that had been issued to Axcess in order to avoid infringing upon that patent. Savi forwarded the letter to its attorney at Baker Botts, who realized that Baker Botts had represented Axcess in its patent applications. Since a conflict of interest existed, Baker Botts told Savi it would need to have a different firm represent it in the case. Represented by new counsel, Savi advised Axcess that it was not infringing the Axcess patents and therefore would not license them.

A third competitor in the RFID industry, AeroScout, later challenged the validity of Savi’s patents. It based its challenge in part on the claim that Baker Botts should have disclosed Axcess’ patent applications to the patent office when it applied for patents on behalf of Savi.

Apparently in response to AeroScout’s contentions, Axcess hired yet another firm to sue Savi for patent infringement. Savi responded by asking the Patent Office to invalidate Axcess’ patent on the ground that the patented technology had already been patented by others. The Patent Office agreed and Axcess lost its patent. Axcess then sued Baker Botts, alleging that Baker Botts committed legal malpractice and that it breached its fiduciary duty to Axcess during its dual representation of Savi and Axcess.

Expert Evidence on Causation

To win its case, Axcess needed to prove not just that Baker Botts committed malpractice or breached a duty of loyalty, but that its alleged misconduct caused harm. The Texas Court of Appeals held that Axcess introduced no competent evidence to prove that it was harmed by Baker Botts.

Axcess relied on the expert testimony of a patent attorney to establish causation. The attorney testified that if Baker Botts had disclosed to Axcess that it was pursuing patents on behalf of its competitor Salvi, Axcess would have hired counsel that did not have a conflict of interest. The attorney then testified that, with new counsel, Axcess would have initiated an interference proceeding with the Patent Office. Under the law in effect at that time, the party that first invented something (rather than the party that first filed for a patent) was entitled to patent it. An interference proceeding resolves conflicts about entitlements to patents.

The attorney testified that a successful interference proceeding would have caused Salvi’s patent rights to shift to Axcess, placing Salvi’s lucrative government contracts that relied on the patents at risk. That would have placed Axcess in a stronger position to negotiate a resolution with Salvi, which would have benefitted Axcess.

According to the appellate court, the attorney’s expert opinion as to causation rested on (1) his belief that Axcess would have prevailed in its interference proceeding, and (2) his belief that Salvi would have negotiated a resolution to the dispute that would have benefitted Axcess. The court concluded that the attorney’s beliefs amounted to speculation rather than factual evidence.

The court decided that the attorney had no basis for deciding how the patent office would have responded to the interference proceeding. He pointed to no facts, such as similar disputes that the Patent Office had decided, to support his opinion that the Patent Office would have ruled in Axcess’ favor. The fact that the Patent Office ruled in Salvi’s favor with regard to another patent suggested that the attorney’s opinion was not grounded in the specific facts that separate a reasonable conclusion from conjecture.

In addition, the court decided that the attorney’s opinion as to what Salvi would have done if, in fact, Axcess had prevailed in the interference proceeding was entirely speculative. His testimony about what Salvi might have done was, in the court’s view, a conclusory opinion that was not based on fact.

Since Axcess needed expert evidence to prove that it was harmed by the actions of Baker Botts, and since the evidence it produced was based on speculation rather than facts, Axcess was not entitled to prevail. The case is a reminder that no matter how knowledgeable or qualified an expert might be, an expert’s opinion must still be grounded in demonstrable facts before a court will rely upon it.