Category Archives: Expert Opinions

Ballistics Expert Witness Testifies in LA Grim Sleeper Trial

A LAPD police ballistics expert witness defended his research methodology in the trial of Lonnie Franklin Jr., the suspected Grim Sleeper serial killer. The high profile murder trial continues into its fourth week with prosecutors calling expert witnesses to build their case against Franklin, who has been accused of carrying out 10 murders in the LA area.

Grim Sleeper Murder Trial Continues in LA

Lonnie Franklin Jr. was arrested in July of 2010 in Los Angeles for the alleged murder of 10 women and assault on one woman who survived the attack after DNA evidence linked him to a series of murders in the 1980’s and the early 2000’s. Franklin, 63, has pleaded not guilty to the crimes, and prosecutors have built their case on eyewitness testimony from the surviving victim, DNA evidence from the crime scene, a photo of a victim that Franklin had, and expert witness analysis of bullet wounds which were allegedly caused by a weapon similar to the one in Franklin’s possession.

The gun allegedly used to commit one of the crimes has become a key piece of evidence against Franklin and was found inside a dresser drawer in his home following his arrest. During a three day search of Franklin’s home police investigators found 9 guns, but the one in question has become central to the trial because it was allegedly used to kill 25-year-old Janecia Peters, who police believe to be the last of the Grim Sleeper victims. With the weapon linked to Peters in hand, prosecutors called a forensic weapon expert witness to conduct further investigation into the caliber of gun used in a collection of other murders connected to the Grim Sleeper serial killer.

LAPD Ballistics Expert Witness Testifies in Grim Sleeper Trial

Deputy District Attorney Beth Silverman called Daniel Rubin, a LAPD criminalist expert witness, to link the same caliber gun as the one found in Lonnie Franklin Jr.’s home to a series of Grim Sleeper killings. Rubin testified in court that Franklin’s gun killed Peters, and that the same caliber of weapon was used in seven other Grim Sleeper crimes. According to Rubin’s expert ballistics analysis, the gun used in the other crimes left a unique signature on the bullets, and, like Franklin’s gun, was a .25-caliber semi-automatic hand gun. Attorney Silverman used Rubin’s testimony to argue that Franklin followed a pattern of using the same type of weapon to kill his victims.

Attorney Seymour Amster, who represents Franklin, challenged Rubin on the techniques he used to form his expert opinion. According to Amster’s line of questioning, Rubin used methods which did not qualify him to provide ballistics expert testimony during the trial. Rubin responded by defending his methodology and informing Amster, and the court, that his methods were widely accepted in the forensic science community. According to Rubin, his research followed the standard methods of testing ballistic evidence, and his criminalist expert testimony was backed by validated scientific processes which qualify him as an expert.

Grim Sleeper Trial Continues in LA

After the ballistics expert testimony by Daniel Rubin, the prosecution rested its case, leading to an intense confrontation between attorney Amster and Judge Kathleen Kennedy before the defense presented its case. During a shouting match in the middle of the courtroom, Amster told the judge that he was concerned the case was going to cause him to have a stroke because of the prosecution’s tactics and judge’s rulings.

A brief recess followed, and Amster was able to calm down and give an opening statement which attacked the validity of the DNA evidence used by police investigators to arrest Franklin. As the trial continues this week, Amster will begin calling witnesses to break down the prosecution’s, and will likely include a forensic expert witness to explain his criticism of the DNA evidence.

Failure to Disclose Expert Opinions Leads to Dire Results

Expert witness opinions, perhaps even more than other evidence in a case, must usually be disclosed to the opposing party in advance of trial. In federal cases, disclosure is required by the procedural rules that govern civil and criminal trials. Most states have implemented similar disclosure requirements.

When lawyers fail to disclose expert opinions in advance of trial, bad things happen. Recent criminal and civil cases underscore the importance of making the required disclosure.

David Morgan Trial

In the State of Washington, David Morgan is charged with attempted first-degree murder, assault, and arson. Prosecutors are trying to prove that Morgan set fire to his home after dousing his wife with gasoline. Morgan’s lawyer told the jury that Morgan was trying to rescue his wife from the fire and that Morgan does not know how the fire started.

The Snohomish County fire marshal testified that he could not determine the fire’s point of origin. He said he could not rule out arson as the fire’s cause but that he found no physical evidence that would allow him to conclude that the fire was or was not deliberately set. Investigators did not find a gasoline can at the scene of the fire.

A second expert, however, came to a different conclusion. Mikael Makela, the Washington chapter president of the International Association of Arson Investigators, told the jury that he believes the fire resulted from arson.

Morgan’s attorney objected that the testimony came as a surprise. A pretrial order required the prosecution to disclose expert opinions to the defense before the expert testified. Morgan’s attorney believed that Makela shared the fire marshal’s opinion that the fire’s cause could not be determined. He therefore did not arrange for an expert of his own to review Makela’s opinion.

Makela testified that he advised the prosecutor of his opinion on several occasions before he testified. Because the prosecutor did not convey that information to the defense, the judge discharged the jury and declared a mistrial. The case could go to trial again after Morgan’s attorney obtains his own expert. The court will first need to decide whether to dismiss the charges based on the prosecution’s failure to obey the pretrial order.

Malibu Media Lawsuit

A copyright infringement lawsuit by Malibu Media against a defendant identified only as John Doe was recently dismissed by a federal magistrate in Chicago, in part because Malibu based its case on undisclosed expert opinions. Malibu, which produces and distributes erotic movies, claimed that John Doe illegally downloaded the movies from the internet without paying for the privilege of viewing copyrighted material.

Malibu relied on evidence provided by forensics investigators in Germany, who traced the improperly downloaded films to Doe’s IP address. Malibu admitted that the investigators could not find the movies on Doe’s computer, although it speculated that Doe might have found a way to erase them without leaving any traces. Doe denied downloading the movies and noted that his router had been accessed by an unknown device during the time that Malibu claimed he was downloading the material.

The court entered judgment against Malibu after ruling that the admissible evidence was insufficient to justify a trial. It disregarded expert evidence upon which Malibu relied upon because Malibu failed to make a timely disclosure of that evidence as required by a pretrial order. The court rejected Malibu’s contention that it was not required to disclose the evidence because its investigators were lay witnesses, not experts. The investigators relied upon knowledge of internet and computer technology that was beyond the knowledge possessed by most people and were therefore testifying as experts. The fact that Malibu’s lawyers touted their expertise during a court hearing also undercut the claim that the witnesses were not experts.

The Importance of Expert Opinion Disclosure

The lesson to be learned from the Morgan mistrial and the Malibu Media dismissal is that failing to disclose expert testimony can have dire consequences. It is easy to find examples of cases in which experts were not allowed to testify because parties did not adhere to the precise requirements of disclosure rules. Lawyers who work with expert witnesses should always be aware of disclosure rules and take care to comply with their requirements.

Expert Witnesses Testify During Erin Andrews Stalker Video Trial

Former ESPN employee and current Fox Sports reporter Erin Andrews called expert witnesses to the stand this week in her $75 million stalker video trial. The lawsuit filed against her convicted stalker and the Nashville hotel where she was staying alleges the violation of her privacy caused her severe emotional distress and damaged her professional image as a sports reporter.

Erin Andrews Files $75 Million Lawsuit over Stalker Filmed Video

In 2009 Michael Barrett followed then ESPN personality Erin Andrews to her Nashville Mariott hotel, requested a room right next to hers, and filmed the sports media personality through her hotel door peephole. The footage showed a naked Andrews standing in front of a mirror and walking around her room. After filming the video, Barret distributed his footage online, exposing Andrews’s private moment to the entire internet public. In 2010, Barrett was found guilty of stalking and served 2 years in prison.

Erin Andrews, who has since moved from ESPN to Fox Sports, has alleged the stalking incident caused her severe emotional trauma and has influenced her professional reputation as well. She has suffered from depression and sleeplessness, and claims to hear taunts from male fans when she works the sidelines of professional sporting events. Late last year, Andrews finalized a $75 million lawsuit against Barrett and the Nashville Mariott hotel alleging the incident could have been prevented had hotel officials taken the opportunity to either prevent Barrett from accessing her hotel room or notifying her of his presence.

IT Expert Witness Testifies in Erin Andrews Stalker Trial

In order to demonstrate the effect Barrett’s peephole video had on her, Erin Andrews called two expert witnesses to the stand during her lawsuit against the Nashville Mariott and her stalker. First, Andrews called Dr. Bernard Jansen, and IT expert witness, to explain to jurors how pervasive and widespread distribution of the elicit video was during the period immediately after its release on the internet. According to Dr. Jansen, the peephole footage has been viewed by more than 16 million people since its release to the internet in 2009.

Further, Dr. Jansen told the court that during the month of July, 2009 the phrase “Erin Andrews” was the most commonly searched term, and someone watched the footage every 1.5 minutes. Jansen concluded by telling jurors that his estimates were likely conservative because they only accounted for unique searchers, and the actual figures were higher because it is likely that many of those 16 million unique searches were viewed by multiple people.

Therapist Expert Witness Testifies on Behalf of Erin Andrews

Erin Andrews also called to the stand a therapist expert witness who worked directly with the sports personality in the wake of the video’s release. Loren Comstock, who is a licensed social worker and Executive Leadership Coach who has consulted with the Sigma Group for 17 years, took the stand as an expert therapist and career consultant to explain the effect the video had on Andrews’s mental composition. According to Comstock, Andrews was humiliated and distressed, and in a state of severe anxiety due to the widespread distribution of the peephole video.

Comstock told jurors that Andrews “could not get through the day peacefully,” and that she was publically humiliated as a result of the video’s release. Comstock further explained that she diagnosed Andrews with adjustment disorder and noticed some symptoms of PTSD which she said can be “very debilitating” for a person – particularly one with a highly public career and lifestyle. Andrews herself took the stand to drive home the emotional impact of the video’s release, and during her tearful testimony she explained how she suffered from the symptoms which her therapist expert witness had introduced to jurors earlier in the trial.

Erin Andrews’s $75 million lawsuit trial continues this week as the Nashville Mariott argues the stalker Michael Barrett is solely to blame for the intrusive video and its widespread distribution.

Takata Airbag Inflators: A Case Study of Design Process & Risk Management Expertise for Products Liability Litigation

Takata airbag inflators have been identified as the cause of at least eleven deaths and countless injuries in recent years. While all products come with risks, it appears that Takata knew about the potential for injury and death as early as 2004 and made decisions to bury this information without proactively reacting to it.

Takata has now dug a hole so deep that it is being fined and sued, it is losing customers (big customers like Honda, Mitsubishi and Toyota), and its stock is at its lowest point in years. As part of its recent response to the situation, Takata commissioned a panel led by Samuel Skinner, the former transportation secretary under President George H.W. Bush to focus on reviewing the design, testing, and quality of materials. The panel was not asked to pass judgment on the design of the airbag inflators, but on the process of reacting to accidents, risk assessment and mitigation; and on how Takata makes decisions that not only minimize cost, but minimize risk to customers and the public.

Most products liability cases revolve around domain experts providing testimony on the product itself: Was it defectively designed? Did it include adequate safety devices and warnings? Did users follow the warnings? And did the designers foresee all its uses and misuses? What Takata has done with this panel (and Toyota before it, when addressing sticking accelerator pedals) is to go a level deeper. It addressed the processes used within the organization to design quality into products, make decisions when addressing risks, and react to potential product flaws. This shift from the product itself to the product design and risk mitigation processes may portend a fundamental shift in managing products liability. It emphasizes looking at the practices within an organization or even an entire industry’s culture.

The focus is increasingly on answering the questions: During product design or re-design did the manufacturer:

Follow design best practices during the initial development or need for product change? Takata appears to have a weak quality control system and a poor process for reacting to potential product defects.
Analyze and mitigate risks in a professional manner? Takata concluded as early as 2004 that the risk was low enough and less important than the product cost. Clearly the decision was not to mitigate the risks and it has come back to haunt them.
React to incidents/accidents during test and use in a responsible manner? At least Takata tested the airbags in 2004 when they first heard about the problem (see more on this in the paragraph below). Unfortunately it chose a poor response to what was found and buried the results of the testing. Many companies ignore or file accident and incident reports without adequate testing and response.
Make decisions that not only minimize cost, but minimize risk to customers, operators and the public? It appears that cost was the driving factor in Takata’s decision making, not risk reduction.

I am currently an expert witness in an on-going series of cases where a specific product is involved in accidents and deaths at a rate higher than Takata’s airbag inflators. In these cases (spread across multiple manufacturers of similar products), the manufacturers don’t even collect good data on product use and accidents, they haven’t done adequate testing, and they have made decisions to not seriously address the problem. They have even leveraged a standards committee to not address the issue. All of this is catching up with the manufacturers as the theme of the cases against them are maturing from being product, user training, and warning label focused; to being centered on the process the manufacturers follow when addressing risk.

So, what does this mean to liability litigation? Say a person is injured or killed when using a product. Further, say this happens repeatedly. The plaintiffs must show that the company knew about these incidents and did not react professionally, consistent with best practice to them. The defense must show that the manufacturer had not only had a process in place to design a safe product initially, considering all foreseeable uses and misuses for it; but that it had processes for considering in-use accidents and incidents. These processes include how it captures accident information, how it tests to understand what happened, and how it makes decisions about what to do in light of what it learned.

In Takata’s case, it appears from what has been published in the popular press, they:

Had poor quality control during production.
Made poor product change decisions that caused the potential failures. (They moved to a cheaper, more unstable propellant in 2001.)
Did not use best practice risk assessment methods when faced with growing evidence about a problem.
Made poor risk mitigation decisions after testing in 2004.

These “process” oriented topics require expertise, not about how to design airbags or propellants, but about the best practices to manage product risk, development and change. Design process and risk management expertise is new to the expert witness industry. It not only requires knowledge of best practices, but the ability to communicate them to judges and juries.

Dr. David Ullman is the author of “The Mechanical Design Process” a text whose 5th edition was just released by McGraw Hill. It is a compendium of product design best practices. In support of this edition he has written over fifteen case studies examining best design practices across many diverse product domains. Details on his background are at www.davidullman.com.

Blood-Splatter Expert Testimony Challenged in Murder Trial

An Australian blood-splatter expert telephoned the defense attorney in the Pennsylvania murder trial of Jessica Alinsky because he was shocked by the opinions expressed by a state police trooper who was testifying as a forensics expert. Dr. Mark Reynolds knew about the Alinsky case because the trooper based a presentation on the crime scene evidence while attending a blood-splatter training course that Reynolds taught. According to Reynolds, the trooper would have failed the course if he had been graded on that presentation alone.

Unfortunately for Alinsky, the defense only learned of Dr. Reynolds’ opinion after the trial was underway. The defense moved for a mistrial to give Dr. Reynolds, who was in Australia, time to familiarize himself with the case and to testify as an expert witness. After the judge denied that motion, Alinsky was convicted of third degree murder.

Expert Evidence in Jessica Alinsky’s Murder Trial

Matthew Ryan Gailie, a prison guard, was shot in the head soon after he returned home from work. Prosecutors claimed that his girlfriend, Jessica Alinsky, shot him at close range and then manipulated the murder scene to make it appear that he had committed suicide. Alinksy gave multiple explanations of the shooting to the police, attributing it both to an accident and to suicide. In one version, she said she was upstairs when she heard the shot. At other times, she said she was next to Gailie when the gun went off during a struggle. Alinksy did not testify during the trial.

Gailie’s body was found on the living room floor with a gun in his hand. The gun was in Gailie’s left hand, but Gailie was right-handed. The strongest expert evidence against Alinksy came from forensic pathologist Gary Ross, who testified that people who use a gun to commit suicide usually drop the gun.

The trial began with the expert testimony of Trooper John Corrigon. He concluded that a blood soaked bank statement found next to Corrigon’s body had been planted by Alinsky to suggest a motive for the suicide. He did not believe that a bloody handprint on the back of the statement could have been Gailie’s, because Gailie would have been immediately incapacitated by the shot. He also expressed the opinion that the gun was in the wrong position for Gailie to have fired it.

Based on the substantial amount of blood found on the couch, Corrigon testified that the body had been there for some time. He suggested that blood on Gailie’s leg appeared to be “defying gravity,” creating the appearance that Gailie had first fallen on the couch before being rolled to the floor, causing blood to spray onto the floor under the kitchen table.

Corrigon attributed smears of blood on Gailie’s body to Alinsky’s attempt to clean up the evidence. Using a special dye, police also found evidence of bloody female footprints leading to the bathroom, as well as blood in the bathtub that had been cleaned before the police arrived.

Another forensic expert testified that neither Gailie’s nor Alinsky’s hand tested positive for gunshot residue. Both individuals had traces of gunshot residue components on their bodies, but the expert acknowledged that she could not determine who fired the gun based on that evidence.

Reynolds’ Comments

Corrigon used his analysis of blood-spatter evidence in Alinsky’s case when he made a presentation in the course that Reynolds taught. In an email to the defense attorney, Reynolds said that “in almost every instance there was no underpinning scientific support for what he was saying and/or there was a reasonable alternative(s) supportive of self-infliction.”

Reynolds also recalled that Corrigon “made a number of significant concessions and essentially agreed that there was just as much likelihood of it being self-inflicted as it was a homicide.” Those concessions were not reflected in Corrigon’s courtroom testimony.

After the defense became aware that Reynolds had criticized Corrigon’s analysis, the defense recalled Corrigon as a witness. Corrigon admitted that he wrote no report about the professional criticism, but contended that he was not required to do so. The defense contends that Corrigon concealed exculpatory evidence and that the prosecution had a duty to disclose it.

Reynolds also suggested that Corrigon’s conclusions were influenced by other evidence in the case, including Alinsky’s statements. In a telephonic hearing conducted during a break in the trial, Reynolds told the court that a science expert should base conclusions strictly on science. Taking other evidence into account is the jury’s job, not the expert’s.

Grounds For Appeal

The jury took only two hours to find Alinsky guilty of third degree murder and of tampering with evidence. The jury might have come to the same conclusion even without Corrigon’s testimony, given the conflicting statements that Alinksy made to the police and the other evidence that pointed to her guilt.

It is likely, however, that Alinksy will raise at least two grounds on appeal that might result in a new trial. The first is the judge’s decision not to grant a mistrial, which effectively prevented Alinsky from presenting Reynolds’ expert testimony. That testimony might have given the jury a basis for discounting the conclusions drawn by Corrigon.

Alinsky is also likely to argue that Corrigon had a duty to reveal Reynolds’ professional criticism of his analysis and that the prosecution had a duty to disclose that criticism to the defense. Whether either ground for appeal will result in a new trial for Alinksy will probably not be known for more than a year.

Texas Commission Votes to Exclude Bite Mark Experts from Criminal Trials

Acting on reports from forensic expert witnesses, the Texas Forensic Science Commission has formally recommended the state’s criminal justice system suspend use of bite mark evidence due to its unreliability. Questions about the integrity of bite mark evidence have gained increased traction over the last 6 years, leading to the recommendation by Texas officials to formally suspend the use of dental experts during criminal trials.

Dental Experts Question Bite Mark Evidence

Over the course of the past decade research by Mary and Peter Bush at the State University of New York at Buffalo suggests that no two bite marks from the same set of teeth are the same. The Bush research used a mechanical clamp with teeth attached in an effort to duplicate bite marks, but two bites did not result in identical patterns – even in perfect simulation conditions. If bite marks leave patterns like the Bush research suggests, using bites to connect a defendant to a crime is flawed because unlike DNA evidence or fingerprints – which are unique and connected to an individual – bite marks do not leave consistent impressions and are accordingly a flawed method of identification.

Forensic odontologists have used bite mark testimony in criminal trials since the 1970’s – Ted Bundy was famously convicted in part to bite mark expert witnesses – but the Bush team is just one of many research groups who have questioned the validity of bite mark evidence in recent years. Research on the flaws associated with bite mark identification and the inconsistencies across bite mark expert testimony was compiled by the American Board of Forensic Odontology.

Bite Mark Expert Testimony Targeted by Innocence Project

According to the report by the Board of Forensic Odontology several dentists and other purported bite mark evidence experts could not even identify if a series of marks were made by teeth, much less connect to marks made by the same person. While some experts were able to identify bite marks, the 38 dentists polled could only unanimously agree on 4 out of 100 attempts at making bite mark identification. The discrepancies noticed by the Board of Forensic Odontology and the research by Peter and Mary Bush have been used by the Innocence Project – a national organization which seeks to exonerate wrongly convicted defendants – to argue convictions based on bite mark evidence should be overturned.

The Bush team has testified on behalf of the Innocence Project for the past several years, and the increased scrutiny against bite mark expert testimony has opened the door for several appeals. According to the Associate Press, 24 men who were convicted of serious crimes such as murder or rape using bite mark expert testimony have been exonerated and freed based on the use or more sophisticated DNA evidence. With a growing number of dentists, legal professionals, and forensic scientists turning against bite mark evidence and calling it unreliable, it is not surprising that the Texas Forensic Science Commission would recommend this evidence be suspended from use in criminal trials.

Texas Suspends Use of Bite Mark Expert Testimony

In the face of harsh criticism about the scientific integrity of bite mark evidence and the reliability of bite mark expert witnesses, some proponents of the practice maintain that it is a viable tool for identification. Defenders of bite mark expert testimony argue that the evidence has reliably bene used to earn convictions for several decades, and maintain that a fully trained bite mark expert can use the indention left by teeth to identify a potential suspect in a crime.

Despite the defense of bite mark expert testimony, the wealth of scientific evidence against the practice encouraged the Texas Forensic Science Commission to formally recommend the use of bite mark evidence be excluded in criminal trials. While the recommendation does not guarantee that the use of bite mark expert testimony will be suspended, the committee’s decision will likely influence judges throughout the state who are confronted by bite mark testimony.

As a growing body of research criticizes the use of bite mark expert testimony, the recommendation against its continued use in Texas may be the sign of a growing trend. The use of rigorous scientific study has raised the stakes for experts in a variety of fields, and the Texas decision indicates bite mark evidence is feeling the effects of increased scrutiny.

Fitness Tracking and Expert Testimony

Health conscious Americans are using a variety of new tools to help them measure their fitness. Activity monitors, including Fitbit, Jawbone UP, and Nike Fuelband, keep track of heartbeats, body temperature, the number of steps a user takes, and other data. Some smartwatches record similar data. Measurements of time and distance (assisted by GPS components) allow fitness monitors to compute the speed at which the person wearing the device has been walking or running.

Fitness technology users often have the option to upload the information collected by their devices to an online database. That allows them to keep track of their activity over time. It also permits a comparison of the user’s information to a broad group of people who share similar characteristics (such as age and gender).

The advent of fitness technology has given rise to a new breed of experts. Statisticians are using fitness monitoring data to compare individuals to larger populations. In some cases, they are using data gained from technology users when they testify as expert witnesses.

Experts in Activity Analysis

The first court case involving the expert analysis of data collected from a Fitbit device took place in Canada. A personal injury plaintiff who was injured when she was working as a fitness trainer used expert testimony to establish that her activity levels were lower than average for a person of her age and profession.

Of course, a plaintiff who is malingering might deliberately engage in lessened activity while wearing the Fitbit device. The expert’s data analysis might therefore shed limited light on whether an individual user’s data has been manipulated. The Canadian court presumably left that issue for the jury to resolve.

Whether an activity data analysis would be permitted in an American court would likely depend on whether the party seeking its admission can satisfy the standard for expert evidence that applies in that court. In states that adhere to the Daubert standard, the party would need to establish that the expert’s testimony is based on the application of a reliable methodology to reliable data. The reliability of data that can be manipulated by the person wearing a monitor might be difficult to prove.

While plaintiffs might have trouble using an activity analysis to prove their injury claims, activity data might be a boon to insurance companies that seek to expose fraudulent claims. A plaintiff who claims a serious injury might have difficulty explaining an analysis of Fitbit data showing that the plaintiff is more active than an average person of a similar age. Activity data might also show that a plaintiff who claims to be disabled goes jogging every day. Of course, a savvy individual who wants to make a false insurance claim might know better than to wear a smartwatch or to upload Fitbit information to a database.

Data-Driven “Truth”

As courts increasingly become aware of the perils of eyewitness identification, they may see technology as a means to increase the reliability of evidence that juries consider. Yet raw data is nearly always subject to human interpretation provided by expert witnesses.

As one commentator notes, courts should understand that a “data-driven regime of truth” can be just as unreliable as eyewitness testimony. Some monitoring devices record arm movements as walking when the wearer is sitting in a chair while writing or eating. Others fail to record cycling as an activity. The algorithms that data analysis experts use to interpret the raw data may be flawed, while the data uploaded by people who use fitness trackers may not be representative of the population as a while.

Courts that apply a Daubert rule will presumably examine the reliability of data assessments made by expert analysts. Juries may also hear testimony from competing experts pointing out the problematic nature of data-driven evidence. In the end, however, expert opinions based on fitness tracking technology is likely to become increasingly common in the courtroom.

Expert Witness Testifies During Post-Conviction Hearing of Serial’s Adnan Syed

The post-conviction hearing for Adnan Syed, whose case was made famous by the 2014 legal podcast Serial, featured intense testimony from an expert witness who argued the murder conviction should be invalidated due to insufficient defense counsel. The hearing, which is expected to conclude later this week, will determine the fate of Syed who is currently serving a life sentence.

Serial Podcast Leads to Post-Conviction Hearing

In 2000 Adnan Syed was convicted for the 1999 murder of Hae Min Lee, his ex-girlfriend and high school classmate. From the moment of his arrest Syed has maintained his innocence, and has spent the time since his conviction seeking a new trial by claiming his defense attorney provided constitutionally inadequate representation. Syed has been in prison for more than 16 years, but finally earned a post-conviction hearing to review his case in part due to the overwhelming popularity of a NPR podcast which reviewed the facts of the case and Adnan’s prosecution.

In 2014 journalist Sarah Koenig produced and hosted a podcast on NPR called Serial which discussed the investigation into Lee’s murder and Adnan’s involvement. Throughout the course of Serial’s first season Koenig pointed to a number of procedural question marks in Adnan’s prosecution and defense, the most glaring of which was his attorney’s failure to properly question a number of potential alibi witnesses who placed Adnan in a different location from Lee at the time of her murder.

Three weeks after the conclusion of Serial’s expose on Adnan’s murder trial, the Maryland Court of Special Appeals allowed him to appeal his conviction on the grounds his attorney, Christina Gutierrez, who died in 2004, was ineffective in her efforts to defend him.

Adnan Syed Defense Team Calls Legal Expert Witness

A criminal defense expert witness called by Adnan’s attorneys took the stand to tell the court that Gutierrez’s failure to pursue alibi witnesses was a crucial mistake which satisfies the legal standard for constitutionally insufficient counsel. According to David Irwin, an attorney who consults as an expert witness for criminal defense, Gutierrez was made aware of potential alibi witnesses by Adnan shortly after his arrest, but she didn’t seriously inquire about their alibi testimony or call any to the stand during Syed’s criminal trial.

Irwin called Gutierrez’s failure a “game changer” which “made an incredible difference in the outcome of the case” and told the Court of Special Appeals that Adnan’s insufficient counsel satisfied the Strickland Test, named after the Supreme Court case Strickland v Washington. The Strickland Test, which is used to determine whether defense counsel was constitutionally deficient, requires a defendant to first show his counsel fell below an objective standard of reasonable quality and second that had the defense attorney performed adequately the outcome of the trial would have been different.

During his expert testimony Irwin said that Gutierrez’s counsel fell below the standard for care expected of defense attorneys and the result of Adnan’s trial would likely have been different because alibi witnesses are, according to Irwin, the second-best evidence a defendant can present at trial. Irwin concluded that there were no tactical reasons for Gutierrez to not call alibi witnesses, which suggests her decision to not follow up on those witnesses constituted a failure.

Alibi Witness Testifies at Adnan’s Appeals Trial

To bolster testimony by its expert witness, Adnan Syed’s defense team called a key alibi witness to the stand during his post-conviction hearing. Asia McClain, a classmate of Adnan’s, testified during the hearing that she remembered seeing the defendant at the library at the time he was allegedly killing Lee in a Best Buy parking lot. McClain also told the court that Gutierrez knew about her statement but did not call her to the stand, lending credibility to Irwin’s claim that Adnan was not adequately represented during his initial trial.

Adnan’s post-conviction hearing, which also featured expert testimony from prosecutors which argued cell phone information linking Adnan to the murder scene was valid, is expected to wrap up this week after several days of dramatic testimony.

Pennsylvania Judge Denies Access to Source Code Behind DNA Expert Witness Software

Last year we covered a Pennsylvania legal dispute over DNA testing software used by forensic expert witnesses in criminal trials. Earlier this week the case took another turn when a Pennsylvania judge blocked defense lawyers from accessing the source code for the software, rejecting arguments that the Sixth Amendment mandated the DNA expert witnesses turn over the details of their methodology.

Defense Attorneys Challenge DNA Expert Witness Software

In Pennsylvania and across the country forensic DNA expert witnesses have increasingly relied on a software program which, according to its creators, is able to improve the accuracy of DNA testing significantly. The program, called TrueAllele, can provide police investigators and prosecutors with a positive match using DNA found at a crime scene by comparing it to large databases of stored genetic material. Experts analyze genetic material using the TrueAllele program in order to single out individuals who are linked to the crime, and it has been used in sexual assault, homicide, and property destruction criminal trials.

Pennsylvania and several other states have widely adopted expert witness use of TrueAllele with several police departments and trial courts fully integrating the program. The program has gained favor because of its ability to parse out individual DNA from multiple sources, which is a feature most crime labs are unable to accommodate. TrueAllele’s DNA analysis is more thorough than competing tools, giving investigators better opportunity to single out suspects. Despite the software’s growing acceptance in the legal system, defense attorneys in Pennsylvania have resisted its continued use because they are unable to gain access to TrueAllele’s source code.

Defense Attorneys Petition to Access TrueAllele’s Source Code

Defense attorneys for Michael Robinson, a man charged with shooting and killing two men in Allegheny, PA, argued that the hidden source code behind TrueAllele denied their client the opportunity to adequately confront all of the evidence against him. Robinson’s attorneys, like others before them, argued that the mysterious software program may provide DNA results which police and prosecutors find useful, but its reliability and accuracy cannot be adequately tested without other experts fully analyzing the code which the program uses to parse out genetic material.

TrueAllele has not been in circulation for very long, and defense attorneys claim that without verification by independent experts there are too many unanswered questions about its accuracy to trust. DNA evidence, which is heavily used in criminal trials, was the center of a scandal last May when the FBI admitted to providing inaccurate expert witness testimony at hundreds of trials due to faulty tools of analysis, and defense attorneys have shown a hesitancy to accept forensic analysis technology at face value.

TureAllele’s creator, computer scientist Mark Perlin, has consistently resisted sharing his source code by arguing it would be economically disadvantageous for his company to do so. Currently Mr. Perlin’s company Cybergenetics is the only one using the software, and he does not want to disclose trade secrets as part of a criminal trial.

Pennsylvania Judge Protects DNA Software Source Code

In response to requests by attorneys for Michael Robinson who requested the TrueAllele source code be revealed as part of their cross-examination of prosecutor DNA expert witnesses, Judge Jill E. Rangos said the defense did not sufficiently demonstrate the need for the source code. According to Judge Rangos, requiring Cybergenetics to disclose the source code has “the potential to cause great harm” because of it is a highly valuable trade secret which no other company is able to duplicate at this time. Further, Judge Rangos said that revealing the source code is not “the lynchpin to undermining the Commonwealth’s case” against Robinson, and therefore the defense does not have sufficient reason to put Mr. Perlin’s business at risk by exposing his code.

Robinson’s defense team publically disagreed with the ruling, maintaining that defendants have a 6^th Amendment right to adequately confront witnesses, and in this case that means challenging the foundation of the technology used by expert witnesses who provide DNA testimony. Perlin maintains that experts do not even use the source code, but simply rely on the technology to produce a result after they input data and attorneys can safely test the extent of the expert’s knowledge and methodology without access to the underlying code of the software.

Judge Rangos’s ruling echoes the result from a handful of other criminal courts across Pennsylvania and other states, so for now DNA expert witnesses can safely use TrueAllele without Cybergenetics revealing the protected source code.

Expert Opinion Excluded from Evidence in Lipitor Case

A number of individuals have filed federal lawsuits alleging that their use of the cholesterol-lowering drug Lipitor caused them to develop Type 2 diabetes. The lawsuits have been consolidated in a federal district court in South Carolina.

When large numbers of cases are consolidated in one court under federal rules governing multidistrict litigation, a single case is chosen for trial. That case, known as the “bellwether,” is chosen because it is representative of the other cases awaiting trial. The outcome of the bellwether case may encourage settlement of the remaining cases. It also helps the other litigants assess the risks and costs of taking their cases to trial.

Products liability cases against drug manufacturers necessarily hinge on expert testimony. The judge presiding in the multidistrict Lipitor litigation recently concluded that one of the expert witnesses designated by the plaintiffs in the bellwether case would not be allowed to testify that Lipitor causes Type 2 diabetes.

The Hempstead Case

Juanita Hempstead’s case was chosen as the bellwether. Hempstead was given a prescription for Lipitor in March 1998. She started taking it in June 1999 but did not take it consistently until July 2000. Her lipid levels (including her level of total cholesterol) were higher than normal before she began regular use of Lipitor. Her blood glucose level was normal when it was tested in 1999.

In 2002, Hempstead’s lipid levels were normal. Her glucose level, however, was abnormal. It was in a range that is classified as pre-diabetic. In 2003, Hempstead stopped taking Lipitor for three weeks because she was experiencing abdominal pain. At the end of the three weeks, her lipid and glucose levels were higher than they were in 2002. She resumed use of Lipitor and, three months later, her lipid levels returned to normal.

In February 2004, Hempstead was hospitalized for colitis. Her glucose reading at that time was in the diabetic range. Three months later, her glucose level was substantially higher and she was diagnosed with new-onset diabetes. Hempstead’s weight apparently increased steadily between 1998 and 2004.

Causation

Hempstead was required to prove both general and specific causation. To prove general causation, she needed evidence to establish that Lipitor is capable of causing diabetes. To prove specific causation, she needed evidence that Lipitor actually caused her diabetes.

The district court took note of cases that require no proof of specific causation if studies of general causation establish that taking a drug at least doubles the risk of sustaining the injury for which the plaintiff is suing. Those cases hold that if most people who take a drug experience the harm that the plaintiff experienced, no additional proof of causation is necessary, at least if the plaintiff’s characteristics and use of the drug were similar to those of the subjects who participated in the study that established the risk.

Studies cited by Hempstead’s experts established that taking Lipitor increases the risk of developing diabetes by a factor of 1.6. Since that is less than a doubling of risk, Hempstead was required to prove that Lipitor actually caused her diabetes. She relied on Dr. Elizabeth Murphy to prove specific causation.

Daubert Analysis

The court based its decision on Rule 702 of the Federal Rules of Evidence, as interpreted by the Daubert decision. That rule requires the trial judge to assure that an expert’s testimony will be both relevant and reliable. The reliability of scientific opinions is measured by whether the expert reasonably applied reliable principles and methods to sufficient facts or data.

The court noted that in its role as gatekeeper, it must not substitute its own view of expert opinions for the view that a jury could reasonably take. At the same time, the court has an obligation to protect the integrity of the jury’s decision by assuring that expert evidence, which has the potential “to be both powerful and quite misleading,” is based on a reliable methodology.

Dr. Murphy is a Professor of Clinical Medicine and the Chief of the Division of Endocrinology at San Francisco General Hospital. She has an M.D. from Harvard and a Ph.D. in biochemistry from Oxford. Her credentials to testify as an expert were clear, so the question was whether her opinion that Hempstead’s diabetes was caused by Lipitor was rooted in a reliable methodology.

The court characterized Dr. Murphy’s opinion as being based on (1) the fact that Lipitor increases the risk of diabetes (general causation) and (2) the fact Hempstead developed diabetes after taking Lipitor. Dr. Murphy’s deposition testimony disclosed no fact other than the temporal relationship between using Lipitor and the onset of diabetes that supported her opinion of a causal relationship between the two.

The court faulted Dr. Murphy for failing to rule out other risk factors that might have caused the onset of Hempstead’s diabetes, including her weight gain and a corresponding increase in her body mass index (BMI). Hempstead’s family history, age, and struggle with hypertension were also factors that could have caused her diabetes. The court concluded that Dr. Murphy’s opinion was unreliable because she did not determine whether Hempstead would have developed diabetes without taking Lipitor and did not compare the magnitude of the risk of diabetes onset associated with taking Lipitor to the magnitude of the risk that existed if Hempstead had not taken Lipitor.

Court Excludes Expert Opinion

It may be that the public interest would best be served by holding drug companies accountable for increasing a patient’s risk of contracting a disease, even when it cannot be established that the patient fell within the significant percentage of drug recipients whose disease was caused by the drug rather than the percentage who would have contracted the disease anyway. That, however, is not the law that governed the District Court’s decision.

Because Dr. Murphy’s testimony did not move beyond general causation to establish a specific link between Hempstead’s use of Lipitor and her development of diabetes, the district court barred Dr. Murphy’s testimony on the ground that her opinion about specific causation had no scientific basis. Whether Hempstead’s case will be able to move forward, and how the ruling will affect other Lipitor cases, are issues that will likely be decided in the coming weeks.

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