Category Archives: Expert Opinions

Forensic Accountant Questions 50 Cent’s Bankruptcy Filing

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

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

50 Cent’s Finances

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

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

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

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

A Forensic Accountant Looks at the Bankruptcy Filing

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

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

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

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

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

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

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

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

Skull Fracture Research at MSU

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

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

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

Implications for Skull Fracture Child Abuse Cases

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

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

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

Meeting Future Challenges

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

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

Experts Disagree About Effectiveness of Conversion Therapy

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

Perspectives on Conversion Therapy

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

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

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

The SPLC Lawsuit

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

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

The Court’s Rulings on Expert Testimony

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

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

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

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

The Issues at Trial

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

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

Schizophrenia Expert Witness Testifies for James Holmes Defense

Defense attorneys for Colorado theater shooter James Holmes called a psychiatry expert witness to the stand this week to testify that the defendant suffered from schizophrenia at the time he committed the crime.  Before the expert could testify at open trial, attorneys for both sides debated her qualifications to offer her opinion during trial.

James Holmes Defense Calls Psychiatry Expert Witness

Throughout his murder trial, Holmes’s attorneys have argued that he was legally insane because he was in the midst of a psychotic episode at the time of the 2012 attack on a crowded Colorado theater.  In an effort to convince jurors that their theory of Holmes’s insanity is correct, they called Dr. Raquel Gur as a schizophrenia expert witness earlier this week.  Dr. Gur is a professor of Psychiatry Neurology and Radiology at the University of Pennsylvania, and she has been hired as a consultant for Holmes’s defense.

Dr. Gur is not a licensed and practicing forensic psychiatrist, however, she is a lead researcher in schizophrenia and psychiatry who has conducted hundreds of psychiatric interviews during the course of her career.  Dr. Gur is also no stranger to serving as an expert witness, and she has been asked for her opinion about a number of high profile offenders including the Unabomber Ted Kaczynski and Jared Loughner, who shot U.S. Representative Gabrielle Giffords and killed six bystanders in a case that did not.  Dr. Gur has testified as an expert during a number of criminal trials, and has offered pre-trial diagnosis in several other cases.

Despite her history as an expert witness in criminal cases, Dr. Gur faced stiff opposition from prosecutors who questioned her ability to add relevant testimony about whether or not Holmes was legally insane at the time of the shooting incident.

Colorado Prosecutors Challenge James Holmes Expert Witness

Before being allowed to take the stand as a psychiatry expert witness, Dr. Gur was asked pointed questions about her qualifications by District Attorney George Brauchler, who took the expert to task for not having forensic psychiatry experience or being a licensed clinical psychiatrist.  Dr. Gur consistently maintained that she had the research background and expert witness experience necessary to answer questions about Holmes’s mental state at the time of the shooting because she has interviewed hundreds of clients and conducted years of research on the effects and diagnosis of schizophrenia.

Attorney Brauchler also opposed the introduction of Dr. Gur’s power point slides into evidence, complaining that the defense had failed to provide prosecutors with the slides with sufficient advanced notice.  During a long hearing earlier this week, the parties closely reviewed each of Dr. Gur’s proposed slides and her CV to argue about what she will be allowed to say during trial.  Despite objections of the prosecution, Judge Carlos Samour allowed Dr. Gur to testify and present most of her slides to aid the jurors understanding of Holmes’s mental state at the time of the shooting.

Holmes Psychiatry Expert Witness Takes the Stand

After a contentious vetting process, Dr. Gur took the stand to explain to jurors that James Holmes suffered, and continues to suffer, from schizophrenic delusions that committing the atrocity would raise his “human capital” and make him become a more valuable person.  Dr. Gur conducted more than 28 hours of interviews with Holmes in a two-year period following his July, 2012 shooting, and testified that the defendant showed lack of emotional response and an inability to make rational decisions, which could indicate he suffers from schizophrenia.  After hearing Holmes speak about the shooting incident in the months that followed, Dr. Gur testified that in her expert opinion he was unable to distinguish right from wrong at the time of the shooting and was qualified for the insanity defense under Colorado law.

Dr. Gur’s testimony directly contradicts two prosecutorial expert witnesses who testified earlier in the trial that Holmes was not legally insane because he could distinguish right from wrong.  As the trial continues in the coming days, prosecutors will likely make a strong effort to discredit Gur on the stand and call her testimony into question during cross-examination.  After almost 45 days of trial, the defense is expected to conclude its case this week leaving only closing arguments before the matter goes to a jury for verdict.

FBI Agent Allowed to Testify as Expert Regarding Cellphone Location

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

The Evidence Against Norman Clark

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

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

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

The Expert Opinions

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

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

The McDaniel Decision

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

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

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

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

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

The Trial Court’s Ruling

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

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

Michigan Man Granted New Murder Trial After Attorney Failed to Use Expert Witnesses

The Michigan Supreme Court has granted a new trial to a man convicted of the death of a child under his care because his trial attorney failed to call expert witnesses in his defense.  During the initial trial in 2012, prosecutors used a handful of expert witnesses to suggest the defendant had abused the child, but the defense attorney did not respond with any experts who would propose an alternative theory of the injuries.

Michigan Man Receives New Murder Trial

Defendant Leo Ackley, 28, was convicted in 2012 for the 2011 death of 3-year-old Baylee Stenman, his girlfriend’s daughter who was left in his care.  Baylee died of subdural hematoma caused by head trauma that prosecutors believe was inflicted by Ackley while he was looking after the toddler.  Ackley, who has maintained his innocence throughout his imprisonment, argues that the girl fell off of her bed during a nap, and the death was a tragic accident instead of an act of child abuse.  During trial, prosecutors called five forensic and medical expert witnesses to the stand in order to explain the likely cause of the injuries that killed Baylee, but Ackley’s defense attorney did not provide a single expert to refute the testimony.

According to a unanimous ruling by the Michigan Supreme Court, the failure to call a single rebuttal expert witness to support the defendant’s theory of the crime qualified as ineffective assistance of counsel.  Given the failure of Ackley’s defense to consult an expert witness when medical expertise was critical to the outcome of the case, the Michigan Court granted a new murder trial to be conducted with a different attorney, giving Ackley the opportunity to fully explain his position in a court of law.  The decision was welcomed by Ackley’s family and his new attorney, Andrew Rodenhouse, who said that the Court was sending a message about the importance of incorporating expert witnesses into a complete defense.  Rodenhouse told reporters, “That’s really what the court is saying … telling trial attorneys, defense attorneys who do these things that you got to do a little more than just show up on the day of the trial. You got to actually do your homework and be prepared.”

Michigan Supreme Court Focuses on Use of Expert Witnesses in New Trial

In vacating Ackely’s conviction and remanding the case for a new trial, the Michigan Supreme Court emphasized the importance of expert witnesses during trials where the source of a victim’s injury were a point of contention.  Writing that expert testimony would have been “critical in this case to explain whether the cause of the child’s death was intentional or accidental,” the court found that the attorney’s failure to consult an expert, “fell below an objective standard of reasonableness, and there was a reasonable probability that this error affected the outcome of the trial.”

The Court went on to explain the importance of an expert in Ackley’s original trial, ““Counsel’s failure to engage expert testimony rebutting the state’s expert testimony and failure to become versed in the technical subject matter constituted a constitutional flaw in the representation, not reasonable strategy. Given the centrality of expert testimony to the prosecution’s proofs and the highly contested nature of the underlying medical issue, counsel’s single error of failing to consult an expert who could meaningfully assist him constituted ineffective assistance.”  Ultimately, because at the case involved an “unexplained and unwitnessed” death of a child, a complete defense necessitated expert witness involvement and the attorney’s failure to produce such evidence constituted a failure that warrants a second trial to correct.

Ackley is currently serving a life sentence for his conviction, and will likely remain in prison during the course of his new trial.  Prosecutors have expressed confidence that they are able to earn a second conviction on the strength of the evidence, but without question Ackley’s defense team will present at least one forensic medical expert witness to contend that Baylee’s tragic death was the result of an accident and not child abuse.

Bite-Mark Expert Witness Recants Testimony, Opens Door for Death Row Appeal

A bite-mark expert witness central to a 1994 conviction of a Mississippi man has since recanted his belief in the strength of his testimony, setting the stage for a possible reversal of conviction by the state Supreme Court this month.  Although an expert recanting his testimony does not guarantee a new trial, the modern rejection of bite-mark analysis may carry significant weight in the death row appeal because of the value jurors placed on the evidence at the time of conviction.

Mississippi Man Convicted with Bite-Mark Expert Testimony

In 1992 police found the dead body of 84-year-old Georgie Kemp of Columbus, Georgia in her home.  Kemp had been beaten, stabbed, and sexually assaulted by her assailant before succumbing to her wounds.  After six days of investigation, police arrested Eddie Lee Howard, Jr., a sex-offender fresh out of prison, and accused him of committing the crime.  Howard, who has been described as having mental deficiencies, did not directly confess to the crime, but told officers, “I had a temper, and that is why this happened.”  During his first trial Howard was allowed to represent himself and was convicted without much effort from the prosecutors largely on the circumstantial evidence that he was not savvy enough to dispute.

In 1994, Howard was granted a new trial by the Mississippi Supreme Court and was not permitted to represent himself, forcing the prosecution to present stronger evidence that he committed the crime.  Although there was no DNA left at the scene of Kemp’s murder, prosecutors called forensic odonatologist Michael West as a bite-mark expert witness to link Howard to the crime.  During his testimony, West, who examined Kemp’s exhumed body, told jurors that the bite pattern uniquely matched Howard’s.  Further, West told the jury that one of the bite marks indicated Kemp was “fighting for her life” at the time of the attack.

Prosecutors lauded West’s visionary work in the field of bite-mark analysis, going so far as to compare him to Galileo, and relied heavily on his expert testimony to earn a death sentence for Howard in 1994.  In the intervening years, attorneys for Eddie Lee Howard have maintained his innocence, largely by pointing to a lack of DNA evidence and the occurrence of five similar crimes during the years Howard was in prison.  As Howard’s attorneys prepare for what is likely his final chance at appeal this week, they have an additional piece of evidence for the state Supreme Court to consider: Michael West has recanted his belief in the value of bite-mark testimony.

Bite-Mark Analysis Discredited by Modern Science

Throughout the 1990’s Michael West proudly extolled the accuracy of his bite-mark analysis, going so far as to proclaim his error rate was “something less than my Savior, Jesus Christ.”  With no one to challenge his analysis, West was used to help identify defendants using bite-mark analysis in a number of trials throughout the 90’s and early 2000’s.  The field of bite-mark identification was weakened in 2009 when the National Academy of Sciences submitted a report that rejected bite-mark identification as a reliable means of identifying a particular person from a pool of subjects.

The results of the 2009 study were reinforced four years later when the American Board of Forensic Odontology found wide variances among bite-mark experts tasked with using bite patterns to identify specific people.  By 2013, the Associated Press reported that more than 20 defendants convicted of rape or murder using bite-mark evidence had been exonerated since the year 2000, suggesting that the field is no longer accepted as reliable evidence in criminal trials.

Bite-Mark Expert Witness Recants Key Testimony

Faced with the mounting evidence against bite-mark analysis, Michael West has since recanted his position as an expert in the field.  During a deposition for the Eddie Lee Howard appeal in 2012, West told the court, “I no longer believe in bite-mark analysis.  I don’t think it should be used in court. I think you should use DNA. Throw bite marks out.” Based on this new position taken by the expert witness whose testimony linked Howard to the scene of Georgie Kemp’s murder, attorneys representing the death row inmate have argued that he is owed a new trial that fairly presents all reliable evidence against him.

Despite the recanting expert witness, overturning a capital murder conviction is a tall order and it remains to be seen whether or not the Mississippi Supreme Court is willing to go that far.  The case was heard in front of the state court this week, and a decision is expected in the coming months.

Use of Force Experts to Dual in Federal Civil Rights Trial of Alabama Police Officer

An Alabama police officer accused of using excessive force to subdue an unarmed elderly man will call a police training expert witness to defend himself in a federal civil rights trial.  According to court documents submitted this week, the police officer’s defense team will counter prosecution experts with a certified police trainer who will offer expert testimony supporting the officer’s actions given the circumstances.

Alabama Officer Charged with Excessive Use of Force

In February of this year, 57-year-old Sureshbhai Patel was taking a walk around the neighborhood where his son lived when he was approached by officers responding to a call about a potentially suspicious person.  Patel, who is an Indian national visiting his son’s family, does not speak or understand English and had a miscommunication with the officers who approached him.  Although accounts differ about the interaction, footage from the police cruiser dashboard camera shows Madison Police Officer Eric Parker slamming Mr. Patel to the ground and violently subduing him before placing him in custody.

According to the Patel family, Mr. Patel tried to explain to the officers that he did not speak English, and provide them with his son’s address so they would be able to identify him.  When Officer Parker attempted to frisk Mr. Patel, he was unsure of what was happening and attempted to walk away.  Officer Parker then forcibly placed Mr. Patel on the ground, and the resulting injuries left the 57-year-old partially paralyzed and confined to a hospital bed.

Officer Parker was dismissed from the Madison PD, and Alabama Governor Robert Bentley issued an apology to the Patels and the government of India for injuries suffered as a result of the police encounter.  Following the incident, the United States Department of Justice filed federal civil rights charges against Parker for his aggressive takedown of Mr. Patel, and prosecutors announced plans to call a police expert witness to explain that Parker’s actions were excessive and unwarranted.

Prosecution of Former Alabama Police Officer will Feature Use of Force Expert Witness

Documents filed by prosecutors have identified Parker’s former boss, Madison PD Police Chief Larry Muncey, as an expert witness in police training and use of force in the upcoming federal civil rights trial. According to the prosecution, Muncey will review the video recordings of the incident involving Parker and Mr. Patel and explain that the officer exhibited use of excessive and unnecessary force in subduing the elderly man.  Prosecutors also informed the court that, Muncey “will also opine, based on his training and expertise, that (Parker’s) actions were inconsistent with department policy and that (his) use of force in this instance did not adhere to prevailing police standards and training.”

Muncey’s expert testimony on police training and use of force will help jurors understand the standards of the Madison PD in order to determine whether or not Parker deviated from his duty and violated Mr. Patel’s civil rights.  Parker has pleaded not guilty to the civil rights charges, and announced his intention to call a contradictory expert witness who is a certified trainer in police use of force tactics to help explain the officer’s actions.

Former Cop Charged with Excessive Force to Call Defense Expert Witness

In response to the allegations that he was not justified in using force against the 57-year-old Mr. Patel, former officer Eric Parker has submitted his own use of force expert witness.  Court documents submitted during pre-trial preparation indicate that Parker’s defense team will call Johnny Lee Smith of Triad Martial Arts Inc. to testify that Parker did not show intent to injure and was engaged in a standard police tactic given the circumstances of his interaction with Mr. Patel.  Triad Martial Arts institute is a Certified Specialized Instructor by the Alabama Peace Officers’ Standards and Training Commission, and Smith himself has conducted training courses on police use of force.

According to documents submitted by Parker’s defense team, “Mr. Smith’s testimony is expected to opine that Officer Parker’s stop of Mr. Patel was justified; that reasonable suspicion existed for Officer Parker to conduct a ‘Terry Frisk’ of Mr. Patel; that Officer Parker was justified in using force against Mr. Patel; the amount of force used by Officer Parker was justified under the totality of the circumstances and complied with current law and department policy; and that it does not appear that Officer Parker intentionally tried to hurt Mr. Patel.”

Attorneys for Mr. Patel have denounced the use of Smith as an expert, saying they expect his testimony to be dismissed by the federal judge before trial.  Parker has appealed his dismissal from the Madison PD, and will defend his actions during his federal civil rights trial that is scheduled to begin in September of this year.

Jesse Matthew Sexual Assault Trial Ends with Alford Plea After DNA Expert Testimony

The high profile sexual assault trial of alleged serial predator Jesse Matthew Jr came to a surprising end this week when the defendant withdrew his defense and was subsequently convicted by a Virginia judge.  In the face of expert witness testimony linking his DNA to the scene of the attack, Matthew elected to give up on his case, leading to a conviction that could result in consecutive life sentences.

Jesse Matthew Jr. Linked Forensically to Sexual Assaults and Murders

On a late evening in September of 2005, a 26-year-old woman studying in America from overseas was walking home in the dark when she was attacked from behind by an unknown stranger and dragged into a dark grassy area.  Once off the path, he began sexually assaulting her, threatening to kill her if she screamed before suddenly running away, possibly due to approaching headlights that temporarily illuminated the area where the attack took place.

For nearly a decade the case remained unsolved without any leads on the identity of the attacker, but the situation changed late last year when investigators in Fairfax, VA met with Matthew while looking into the 2014 disappearance and death of University of Virginia student, Hannah Graham.  According to police and prosecutors, Matthew Jr. left traces of DNA on Graham’s body that matched the 2005 victim.  Matthew has also been linked forensically to the body of a murdered Virginia Tech student, Morgan Harrington.

During his trial for the 2005 sexual assault, forensic experts connected the DNA discovered in subsequent investigations to the victim, causing Matthew to enter an Alford plea and drop his defense case.  An Alford plea means the defendant does not admit guilt, but concedes that the prosecutors have enough evidence to convict him and gives up on his defense strategy. As a result of the plea, Judge David Schell found sufficient evidence to convict Matthew of attempted capital murder, abduction with intent to defile, and sexual assault.

Forensic Expert Witnesses Link DNA from Assault to Jesse Matthew

The prosecution began its case with testimony from witnesses to the scene of the attack and the victim herself, however, were unable to get a positive visual ID on Matthew.  In order to connect the defendant to the crime, prosecutors relied on testimony from an expert witness who was able to identify DNA under the victim’s fingernails as a likely match to Matthew’s DNA collected during investigation into his alleged subsequent assaults.  According to Dr. Elizabeth Ballard, a forensic scientist who is an expert in DNA analysis, the chance of the DNA collected from the victim not belonging to Matthew is less than one in 7.2 billion.

In an effort to argue against the DNA evidence discussed by the prosecution’s expert witness, the defense pointed out that the presence of Matthew’s DNA under the victim’s fingernail was not sufficient to tie him to the crime.  Pointing out that the DNA could have been transferred to the victim inadvertently by contact with a common surface, defense attorneys attempted to argue for reasonable doubt in the fact of strong expert testimony that forensically linked Matthew to the attack.  Before defense attorneys could mount a more stringent defense, however, Matthew voluntarily withdrew his case and entered the Alford plea.  Under the terms of the plea, Matthew could face up to 3 consecutive life sentences without possibility of parole.

Jesse Matthew Faces Capital Murder Charges in College Student Murder

The resolution of the 2005 sexual assault case against Matthew does not conclude his legal case.  Prosecutors have already charged him with capital murder for the assault and killing of Hannah Graham in 2014.  Although prosecutors in the Graham case cannot use Matthew’s conviction against him during trial, if he is found guilty for the murder of Graham the State can use the sexual assault case to demonstrate likelihood of future dangerousness – an element necessary to earning the death penalty in Virginia.

Details of the Graham case have not been revealed because a trial date has not been set, but DNA expert testimony will definitely play an important role in that prosecution as well because Matthew has been linked forensically to the Hannah’s remains.  Matthew has not yet been charged for the fatal assault on Morgan Harrington, which is the third attack that he his DNA has been linked to by forensic expert investigators.  Matthews will be sentenced under the terms of his Alford plea later this month.

Optometrist Called as Visual Perception Expert Witness in Fatal Accident Lawsuit

A federal judge in Pennsylvania has approved the use of an optometrist called as an expert witness in a negligence case that arose from a fatal motor vehicle accident, but has expressly limited the extent to which she is able to speak about the case.  Citing the Federal Rules of Evidence, the judge warned attorneys not to allow the optometrist to speak beyond her field of expertise or make factual conclusions about the scene of the accident.

Optometrist to Testify as Expert Witness in Car Accident Lawsuit

In the early morning hours of September 4th, 2012, Zachary Edwards was driving a vehicle owned by his employer, R.J. Skelding of Allentown, PA, when he struck and killed Li Zhen, a Chinese national visiting America.  Zhen was a pedestrian walking along Pennsylvania State Route 8009 when Edwards’s vehicle made contact with her.  Her estate, represented by Philadelphia attorney Bruce Dolfman, filed a lawsuit against R.J. Skelding and Edwards seeking an undisclosed amount, alleging Edwards’s negligence behind the wheel caused Zhen’s death.

The defendants submitted Dr. Ellie Frances, an optometrist, as an expert witness in visual and human factors that influenced Edwards’s ability to see Zhen at the time the accident occurred.  According to Dr. Francis’s proposed testimony, a number of visual and environmental factors present at the time of the accident combined to negatively influence Edwards’s visibility, which may have prevented him from seeing Zhen in the pre-dawn light when the collision took place.

Plaintiffs Dispute use of Optometrist as Expert Witness

Mr. Dolfman protested the use of Frances as an expert witness, arguing that reconstructing the scene of an accident was beyond her area of expertise.  According to Dolfman, the testimony from the defendant’s optometrist would unfairly prejudice the jury by confusing them about the nature of Frances’s expertise. The plaintiff expressed concern that jurors could easily assume Frances had expert knowledge of reconstructing situations like the one Edwards found himself in, which would inflate the value of her expert opinion.

Judge Allows Optometrist Expert Witness Testimony

U.S. Magistrate Judge Timothy R. Rice in the U.S. District Court for the Eastern District of Pennsylvania agreed to allow Dr. Frances to offer her visual and perception testimony, but cautioned defendants from asking her to opine on the sequence of events that led to the accident.  Rice found that the defendants’ expert witness had satisfied the standards of the Federal Rules of Evidence, which require an expert demonstrate she has scientific or specialized knowledge and has built her testimony on sufficient data that has been analyzed and collected using sound methodology.

Rice wrote, “Dr. Francis has outlined an acceptable methodology for her conclusions. She reviewed the lighting conditions, weather conditions, medical records, police reports, expert reports, and Edwards’ deposition testimony. She then applied those factors to the physiological process of perception and gave her opinion as to how quickly objects could be perceived under the reported conditions.”  Taken together with her background in visual perception, Rice determined that Dr. Frances could assist the jurors by explaining how the defendant and the victim perceived each other at the time of the accident.  Judge Rice pointed out that jurors may not be able to intuitively understand what each party was able to see when the collision occurred, and Dr. Frances’s expertise could shed light on the situation.

Optometrist Expert Testimony Limited at Trial

While Judge Rice welcomed Dr. Frances’s expert testimony on visual perception and reaction time given the environmental factors, weather conditions, lighting, and other contributors to the collision, he strictly forbade her from testifying about anything that could confuse jurors.  Specifically, Judge Rice told defendants that Dr. Frances could not testify about Edwards’ eye disorder or reconstruct the accident in front of the jury.  Dr. Frances is not a medical expert or an accident reconstruction expert, and, as such, will not be able to provide an opinion on either aspect of the collision.