Category Archives: Expert Opinions

Estranged Heirs use Expert Witness in Billionaire Sports Owner Mental Competency Trial

A Louisiana judge will decide the future of both of New Orleans’ professional sports franchises and billions of dollars of inheritance money in the mental competency trial of 87-year-old billionaire owner, Tom Benson.  Although the court will hear testimony about Benson’s competency from a variety of sources, the testimony of a geriatric psychiatry expert witness dominated the courtroom last week, and will be crucial to the trial’s final outcome.

Estranged Benson Heirs File Mental Competency Lawsuit

Benson’s daughter, Renee Benson, and her children, Rita and Ryan LeBlanc, filed a lawsuit challenging the 87-year-old’s mental competency in January then they were removed from ownership and executive positions in Benson’s two professional sports franchises: the New Orleans Saints of the NFL and the Pelicans of the NBA.  According to the plaintiffs, the elder Benson has been manipulated by his current wife and a small circle of executives, and is not competent enough to make decisions without undue influence of the people he keeps closest to him.

Benson argues that he is of sound mind, and that he disowned the plaintiffs because they have consistently mistreated his third wife, Gayle, who he married in 2004.  Although the three plaintiffs will still inherit hundreds of millions of dollars from a series of trusts Benson has established over the years, he has made every attempt to remove the three from any ownership positions and shares of his two teams in order to prevent them from inheriting interest in his businesses.

In order to demonstrate that Benson is mentally incompetent and subject to undue influence by the people he keeps close to him, Renee, Rita, and Ryan must show that he does not understand what is happening with his property, and cannot grasp the consequences of his decisions. The plaintiffs would also need to provide clear evidence that Benson is being manipulated by someone else because he is unable to make decisions on his own account.

Geriatric Psychiatry Expert Witness Takes Stand in Benson Competency Trial

Last week, the Benson heirs wrapped up their case against the patriarch’s competency by calling a geriatric psychiatry expert witness to testify.  Dr. Ted Bloch III was one of three doctors who performed a court-ordered review of Tom Benson’s psychological competency, and was chosen as an expert witness by the plaintiffs.  Dr. Bloch took the stand after six other witnesses, including Renee Benson, took the stand to speak to the 87-year-old’s declining mental and physical health. The plaintiffs elected to use a psychiatry expert to conclude their case and leave the lasting impression that Mr. Benson is not mentally competent in his old age.

Judge Kern Reese has agreed to respect the privacy of all parties involved by keeping the courtroom closed to the public and placing a gag order on all testimony that is offered during the trial, so the specifics of Dr. Bloch’s testimony are unclear.  Speaking to reporters after the session, attorney for the plaintiffs Randy Smith noted that Bloch’s lengthy expert testimony was trying, but went according to plan by saying, “We knew this wouldn’t be an easy thing emotionally. It’s really not an easy case, but testimony and the evidence is going pretty much the way we expected.”  Dr. Bloch’s geriatric psychiatry expert testimony wrapped up the plaintiffs’ case, leaving questions about how the defense would respond.

Benson Defense Team Begins Case

Lawyers for Tom Benson opened their case with testimony by calling the team president of both the Saints and Pelicans, Dennis Lauscha.  Lauscha works closely with Benson, and likely discussed how involved he is in the day-to-day operations of the businesses – reinforcing Benson’s position throughout the trial that he is not only of sound mind, but is an active participant in the ongoing management of his two marquee businesses.  The secrecy surrounding the trial has left unclear the list of other witnesses, or if Benson himself will take the stand to demonstrate his mental competency.

Two psychiatry expert witnesses who also evaluated Benson have been seen accompanying the defense legal team to and from the trial hearings, suggesting that both could take the stand as experts in defense of Mr. Benson’s mental health.  Given the high stakes, it is likely that Benson’s attorneys will rely on expert witness testimony to bolster their case, but with the gag order preventing access to the trial observers will only be able to speculate about the details when Judge Reese hands down a decision later this summer.

Expert Witness Testifies in James Holmes Mass Shooting Trial

After several weeks of hearing from witnesses and police who explained how James Holmes carried out the 2012 attack on a movie theater in Aurora, Colorado, jurors in the case were finally presented with testimony about his mental state when a prosecution expert witness took the stand to affirm that Holmes was legally sane at the time of the shooting.  Holmes is on trial for the murder of 12 people, and his mental state at the time of the attack will factor heavily into the jury’s verdict.

James Holmes on Trial for Opening Fire in Colorado Theater

In July of 2012, James Holmes entered a movie theater in Aurora, Colorado during a showing of the hit Batman movie, Dark Knight Rises, and opened fire on the unsuspecting crowd of roughly 400 people.  Holmes’ shooting resulted in the death of 12 people and injury of 70 others, and he was subsequently arrested and charged for his crimes.  After years of investigation, the Holmes mass-shooting trial began last month with the defendant facing a number of charges, including capital murder.  Holmes has pleaded not guilty by reason of insanity while prosecutors contend that he was not insane and deserves to face the death penalty for his crime.

Prosecutors opened their case by presenting eyewitness testimony and gruesome crime scene photos to demonstrate not only the severity of Holmes’ attack, but also the precision with which he planned the shooting and his subsequent escape.  Prosecutors allege that the defendant was fully aware of what he was doing, knew that he was engaging in serious criminal conduct, and therefore he does not satisfy the legal requirements of an insanity defense.  After presenting evidence of the scene, prosecutors collaborated their position by calling a mental health expert witness who spoke with Holmes at length in the immediate aftermath of the defendant’s incarceration to testify that he was legally sane at the time of the shooting.

Prosecution Expert Witness Testifies to James Holmes’ Sanity

Because Holmes has pleaded not guilty by reason of insanity, the jury’s opinion on his mental state at the time of the shooting will be critical to the outcome.  To validate their argument that James Holmes was legally sane at the time of the shooting, prosecutors called Dr. William Reid as a psychiatry expert witness.  Dr. Reid spent over 22 hours with Holmes over the course of 9 interviews shortly after his arrest, and took the stand last week to tell jurors that the defendant did suffer from a mental illness, but was legally sane under the definition of sanity used by criminal law.

The legal standard for insanity does not turn on mental illness, but instead evaluates whether or not the defendant had the capacity to know right from wrong, and was aware of the legal consequences of his actions. Pointing to portions of his session with Holmes, Dr. Reid told jurors that he exhibited remorse for his actions, and made statements of regret when asked about the shooting.  Although the sessions came after the shooting, Holmes demonstrated knowledge that his actions were wrong, which calls to question his claims of insanity.

While on the stand, Dr. Reid told jurors of Holmes, “My opinion is that he did not — is that, whatever he suffered from — it did not prevent him from forming the intent and knowing what he was doing and the consequences of what he was doing.”  Dr. Reid’s expert testimony went on to inform jurors that the defendant satisfied the requirements of legal sanity because Holmes was able to understand the gravity of the shooting. Reid’s expert testimony served two critical roles: first, it informed jurors that the legal definition for insanity was not satisfied, and second, it broke the connection between mental illness and legal insanity that could have otherwise caused confusion for jurors.

Holmes’ Attorneys Question Prosecution Expert Witness

Although the prosecution’s use of Dr. Reid as an expert witness may prove to be effective, the content of the testimony also raises questions that could come up should Holmes be convicted and later file an appeal.  Defense attorney Daniel King protested Reid’s testimony largely because the prosecution asked their expert witness to make a conclusion about Holmes’ mental state specifically within the confines of the legal definition of insanity.  While this line of questioning was allowed by the judge, it toes the line of permissible use of expert witnesses because Dr. Reid arguably made a factual conclusion within the standards of the law which is a job typically left up to jurors.

Forensic Psychologist Plays Critical Role in Slender Man Hearing

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

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

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

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

The Slender Man case

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

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

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

Expert testimony in the reverse waiver hearing

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

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

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

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

Ruling deferred

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

Smithsonian Forensic Expert Witness Testifies in Trial of Parents Accused of Causing Infant’s Death

A forensic anthropologist working for the Smithsonian Institution National Museum of Natural History took the stand as a bone expert witness in the murder trial of a Virginia couple accused of killing their seven-month old son and burying his remains in their backyard.  Prosecutors hope to use the disturbing testimony about the condition of the infant’s remains to put the parents behind bars for life as punishment for their extreme child neglect.

Virginia Couple Charged with Death of Infant Son

In 2011, police investigators responding to an alleged burglary found a severely neglected 6-year-old girl in a trailer belonging to Brian and Shannon Gore of Gloucester County, Virginia.  The girl was found naked, emaciated, covered in her own feces, and trapped inside an upside-down crib that served as a makeshift cage.  The trapped child was the Gore’s daughter, and both parents are currently serving 30-year jail sentences after pleading guilty in 2013 to aggravated malicious wounding and child abuse. While building a case against the Gores for the abuse and neglect of their daughter, investigators also found the remains of an infant buried underneath the shed outside of the couple’s home.

A medical examiner in Richmond determined that the baby was a boy at least 7 months old who had been born to the Gores in 2007 and dead by March of 2008.  The medical examiner could not make a determination about cause of death, so prosecutors sent the remains to the Smithsonian team for a complete analysis.  After receiving the autopsy results, prosecutors charged the Gores for killing the child by neglecting him, and called the lead researcher from the Smithsonian as a forensic expert witness to explain how the infant died.

Forensic Expert Witness Points to Evidence of Child Neglect

Dr. Douglas Owsley of the Smithsonian Institution took the stand in the Gore’s murder trial to speak for the seven-month infant who never had a chance at life because of the extreme neglect of his parents.  Dr. Owsley examined the remains of the infant, and testified that it was his opinion that the baby suffered from extreme malnutrition because he was not getting enough to eat.  Although Owsley did not offer a cause of death, his expert testimony suggested that the brittleness of the child’s bones pointed to malnutrition and neglect.

Owsley told jurors that the baby’s bones were thin, fragile, and showing signs of osteoporosis because the body had been forced to rob the skeleton of the nutrients necessary to support the infant’s vital organs.  Owsley could not rule out an illness causing the death, but said that the extreme tooth decay and lack of a birth defect pointed towards malnutrition.  Further, expert forensic analysis by the Smithsonian team revealed that the boy’s skull was flat in the back, which indicated the child had spent extensive time lying on his back without being cared for.  Owsley also testified that the skull had a small fracture because the bone was eroding due to lack of nutrients from food.

Attorneys for the Gores argue that Owsley’s expert testimony is biased against the couple, and based on the treatment of the daughter who was found malnourished and in a cage in the couple’s home.  The defense argued that the couple cared for the child, held the body for days after his death, and even fashioned him a coffin to be buried in.  Arguing that Owsley relied on questionable evidence, the Gore’s lawyer attempted to discredit his expert opinion and convince jurors that there is insufficient evidence to connect the couple to neglect and child abuse.

How an Expert Explains the Psychology of Killers

Psychologists can play important roles in criminal cases for both the defense and prosecution. During trials, they may focus on issues of eyewitness identification, diminished capacity, or the susceptibility of child witnesses to outside influence. Before trial, they establish or refute a defendant’s competency to stand trial. At sentencing, they educate the judge about the defendant’s cognitive ability, mental impairments, family history, social environment, treatment needs, and potential for rehabilitation. Psychologists who provide mitigating evidence during the death penalty phases of murder trials often make the difference between life and death.

Explaining the Choice to Kill

In his recently published book, Listening to Killers, Dr. James Garbarino recounts the lessons he learned from his twenty years of testifying as an expert witness in murder cases. His book exemplifies the kind of testimony that psychologists provide in criminal cases.

Chapter one (available as a pdf online) explores whether and why murderers choose to kill. Mixing case studies from his own experience with current research findings, Dr. Garbarino explains how the choices that murderers make are shaped by a variety of factors, including brain functions, cultural values, panic, personality disorders, traumatic experiences, fear, misperceptions, addiction, curiosity, peer pressure, and the instinct for self-preservation.

Psychologists often examine the difference between choice and compulsion. They join neuroscientists in asking whether the concept of free will (upon which the criminal justice system’s philosophy of punishment is based) is just an illusion. Behavioral choices that many people perceive as evidence of moral weakness or “bad character” may not be choices at all, in the sense that choices can be driven by unconscious motivations. If the decision to murder is the product of psychological and environmental factors that the killer did not choose, is the killer really choosing to kill?

The Science of Decision-Making

Psychologists are not called upon to justify criminal behavior, but to make it comprehensible. Their goal is to help judges or juries see the defendant as a human being, not as a monster. They focus on “the science of decision-making,” basing testimony on the neuroscience community’s evolving understanding of brain development and its impact on human behavior. They also rely upon studies that have linked murders and violent behavior to damage in parts of the brain that are responsible for moral calculations or empathy.

At the same time, experts caution against attributing criminal or violent behavior solely to underdeveloped or damaged brains. Research suggests that murderers have a “genetic vulnerability” to brain development that fails to control antisocial behavior. Despite that vulnerability, brains may develop normally when children are raised in a safe and nurturing environment. On the other hand, abuse or trauma may act as triggers that prevent vulnerable brains from developing the social controls and empathy that cause most people to behave nonviolently.

Differing Approaches to Expert Testimony

The extent to which psychologists are permitted to testify in criminal cases varies from state to state and from context to context. For example, the admissibility of a psychologist’s pretrial testimony on the issue of competency to stand trial is relatively uncontroversial. Mitigation testimony during sentencing is also generally admissible and, in the death penalty phase of a trial, cannot generally be precluded and may even be required.

Judges typically exercise considerable discretion over the admissibility of a psychologist’s defense testimony in the guilt phase of a murder trial. Some states have adopted evidentiary standards that preclude experts from offering an opinion as to whether a defendant was capable of forming an intent to kill. Judges are even less likely to allow a psychologist to testify that a defendant did not have an intent to kill.

State evidentiary standards also differ as to whether (for example) a “battered woman’s defense” can be raised to explain why an abuse victim killed her abuser. Similarly, states have taken inconsistent approaches to diminished capacity defenses. When they are allowed to testify, however, there is little doubt that psychologists and behavioral experts can be of enormous assistance to a criminal defendant who is charged with murder.

Footwear Expert Witness Testifies in Chicago Area Murder Trial

Prosecutors in a Chicago area murder trial have called upon a footwear expert witness in an effort to place the defendant at the scene of the crime. An employee with Nike took the stand this week to identify shoes treads from footwear the defendant was seen wearing, aiding prosecutors in their effort to convict the man they believe is responsible for the killing.

Chicago Area Man Charged with Killing Female Neighbor

On March 2nd, 2013 Lisa Koziol-Ellis, 33, was found stabbed to death in her home in the Chicago suburb of Elgin, Illinois. Koziol-Ellis and her husband had just moved to the home from Chicago, and police suspect she was the victim of an impulsive killing that occurred after walking in on a break-in to her new home. After a two-week investigation, police arrested Paul Johnson, an ex-convict who lived in a neighboring townhouse. According to police and prosecutors, Johnson was in the Ellis home in the early morning hours of March 2nd, and was surprised by Koziol-Ellis before stabbing her more than 50 times.

Johnson’s defense attorneys have argued that it was Johnson’s half-brother, Harry Dobrowolski, who broke into the home and killed Koziol-Ellis. Dobrowolski died late last year before offering any testimony on the matter, but prosecutors have dismissed the notion that he was the killer in part due to footprints they believe link Johnson to the murder scene.

Footwear Expert Witness Takes Stand in Murder Trial

On the second day of Johnson’s murder trial, prosecutors called Herbert Hedges, a Nike employee and footwear historian, to help connect evidence of the shoes Johnson was wearing on the day of the murder to the scene of Koziol-Ellis’ death. Hedges was able to identify a pair of Nike Air Max 90 running shoes on the defendant from a surveillance video of Johnson and Dobrowksi purchasing items at a local drugstore a few hours before the murder. Pointing out to jurors that the shoe is “very unique,” Hedges testified that it was unmistakable that Johnson was wearing the same type of shoe that left the tread marks investigators found at the scene of the crime.

By identifying the type of shoe the defendant was wearing and matching it to the evidence of bloody footprints left at the crime scene, prosecutors hope to place Johnson in the Ellis home and convince the jury that he was responsible for the death of Koziol-Ellis. While deploying a footwear expert may seem like an unusual tactic, prosecutors have been able to take advantage of Hedges’ expertise by using him to tell jurors that the defendant was wearing the type of shoe that was found at the scene, which not only incriminates him but pokes a hole in his argument that Dobrowski was responsible.

Nike Footwear Expert Testified in Aaron Hernandez Case

The Johnson murder trial is not the first time in recent months that Hedges has been called by prosecutors to testify about footwear and shoe treads in a murder trial, although this week’s contribution was significantly lower profile than his previous work on the Aaron Hernandez murder case. During the Hernandez trial, Hedges was asked by prosecutors to confirm that the outsole prints found at the scene of the victim matched a pair of Nike Air Jordan 11’s that Hernandez was wearing at the time of the killing. Hedges’ testimony matching the shoe patterns was part of the evidence that was used to convict the former NFL star.

Hedges has worked with Nike for over 30 years, and, although he is semi-retired, he is responsible for acting as a footwear expert witness whenever attorneys are in need of testimony identifying Nike shoes or tread marks.

Review finds Widespread Flaws in FBI Forensic Expert Witness Testimony

The Federal Bureau of Investigation (FBI) and the Justice Department (DOJ) admitted to decades of flawed forensic expert witness testimony, potentially affecting 1,500 convictions administered between the 1970’s and 2000. The massive post-conviction review of the FBI’s hair and fiber laboratory began in July, 2012 was designed to test the accuracy of forensic expert analysis at trial, and the early results show a disturbing trend of FBI examiners overstating forensic conclusions to the benefit of federal prosecutors.

Post-Conviction Review Challenges FBI Expert Witnesses

Review of FBI hair and fiber expert testimony began in earnest in 2012 after the Washington Post uncovered evidence suggesting that DOJ and FBI officials were aware for years that flawed forensic analysis contributed to thousands of prosecutions dating back to the 1970s.  Although the FBI’s standards for hair and fiber analysis changed in the early 2000’s, information began leaking that analysts at the Bureau were noticing alarming numbers of false positives in DNA identification based on hair and fiber forensic analysis, leading the DOJ to partner with the Innocence Project and National Association of Criminal Defense Lawyers (NACDL) to conduct a public and transparent review of FBI forensic expert testimony.

The review narrowed its target cases to 2,500 which featured expert analysis of hair and fiber DNA evidence used by prosecutors to convict defendants, and 95{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the 268 reviewed so far indicate errors in FBI forensic expert testimony.  The NACDL, Innocence Project, FBI and DOJ have also announced that results of 350 more testimonies and 900 lab reports are complete and may be released within the coming weeks.

Flawed FBI Expert Testimony Aids Federal Prosecutors

An alarming theme across the flawed expert witness testimony is the tendency of FBI forensic experts to overstate the certainty of DNA matches to link defendants to a particular crime scene.  Further, FBI experts would support testimony with misleading or incomplete statistical evidence that further strengthened the connection between defendants and the crime scene.  Another issue uncovered by the review is the lack of accepted scientific agreement on how hair and fiber analysis should be conducted, and how strong the evidence is as a DNA analysis tool.

Although many legal and political experts are crediting the FBI for its willingness to undertake such a massive review of its forensic expert practices, the disturbing results of the analysis are likely to send a lasting ripple through the federal criminal justice system that could result in thousands of appeals of conviction filed in the coming years.

Results of FBI Expert Witness Review Leave DOJ with Uncertain Future

Response to the negative review of FBI forensic expert witness has been appropriately critical of the investigators in the Bureau and federal prosecutors who made use of the testimony during trial.  Leaders of the Innocence Project and the NACDL have denounced the FBI’s hair and fiber lab work as a “disaster,” and have called for action going forward that to not only correct the injustice, but prevent the use of flawed DNA testimony in the future.  The sentiment is joined by a number of US Senators who have called the results “appalling and chilling in their indictment of the criminal justice system,” and demanded a “root-cause analysis” to hold the responsible parties accountable.

Beyond the critical response to the review of flawed FBI expert testimony, the logistical concerns facing the DOJ and the federal criminal judiciary are potentially overwhelming.  Without question, defendants in each case that has identifiable flaws in DNA expert witness testimony will file an appeal.  With much of this testimony offered in cases involving serious criminal charges, some of them involving the death penalty, the convicted defendants are highly motivated to seek reversals of convictions based on faulty expert testimony.  While not every case will warrant an appeal, the federal criminal justice system faces an uphill battle in the coming months and years as the full fallout of the FBI expert testimony scandal comes to light.

Medical Experts Debate ALS Caused Mental Illness in Murder Trial

The murder trial of a former sheriff deputy in Dane County, Wisconsin featured testimony from two medical experts this week who debated whether the defendant’s claim that he suffers from a mental illness due to his ALS diagnosis is legitimate.  Andrew Steele, 40, has pled guilty to the murder of his wife and sister-in-law, but argues that his ALS, a terminal muscular disease known as Lou Gherig’s disease, affected his mental state at the time of the killings.  Expert witnesses representing both sides testified to the validity of the defendant’s position.

Wisconsin Sheriff Deputy Pleads Guilty to Murder

On August 22nd, 2014 Andrew Steele killed his wife Ashlee Steele, 39, and his sister-in-law Kacee Tollefsbol, 38, in his Wisconsin home. Steele, who resigned his position as a sheriff’s deputy after being diagnosed with ALS, initially denied his involvement but later pled guilty and conceded that he had killed his wife and sister-in-law due to a mental defect associated with his terminal illness.  As jurors consider whether Steele will spend the rest of his life in prison or in a facility run by Wisconsin’s Department of Health Services, they were shown images of the crime scene that indicated Steele attacked the women and strangled them with zip ties affixed around their neck.  Tollefsbol was also the victim of a gunshot wound, and both women were handcuffed after an apparent struggle that carried on throughout the house.

Police investigators found a note on Steele’s phone suggesting that the three had a suicide pact, and the defendant has stated that his ALS diagnosis impaired his ability to recognize his behavior was wrong or illegal.

Defense Expert Witness Testifies ALS Diagnosis Could Create Mental Illness

First to testify on the impact of Steele’s ALS diagnosis on his mental state was Dr. Doug Tucker, a medical expert hired by Steele’s defense team to support his claim that ALS influenced his state of mind.  According to Dr. Tucker, Steele suffered from a serious mental disease caused by his terminal illness.  Dr. Tucker testified that Steele’s cognitive ability to control his behavior was so strongly impaired by his ALS that he was unable to act in accordance with the law.

Dr. Tucker’s expert testimony spoke directly to the key elements of a legal defense in favor of hospitalization over imprisonment by informing jurors that Steele’s condition eliminated the requisite mental state required to commit an act of murder under the law.  If Steele’s neurocognitive processing was so distorted that he could not tell right from wrong, then jurors will be permitted to consider sentencing him to institutionalization rather than incarceration.

Prosecution Expert Witness Rejects ALS Mental Illness

In response to Dr. Tucker’s expert witness testimony, prosecutors called a medical expert of their own to analyze Mr. Steele’s mental state at the time of the murder.  Dr. Paul Barkhaus, director of the amyotrophic lateral sclerosis program at the Medical College of Wisconsin in Milwaukee, analyzed Steele’s medical records and testified that had there been any indication that he suffered from a neurocognitive disorder as a result of his ALS then he would have been referred to a neuropsychologist for further evaluation.

Although Dr. Barkhaus declined to speak directly to Dr. Tucker’s testimony because the prosecution expert is not a neuropsychologist, he testified that Steele’s ability to drive a car in traffic and interact with his family indicated that his mental state was not so deteriorated that he could not follow the law.  According to Dr. Barkhaus’s testimony Steele would have likely displayed other violent tendencies if his ALS effected his cognitive processes, indicating to jurors that the defendant’s argument was not medically plausible.

The case is expected to continue through the week before jurors determine the former sheriff deputy’s fate.

Federal Court Dismisses Expert Witness for Providing Legal Testimony

Earlier this month, a federal court in Texas dismissed proposed insurance expert witness testimony for focusing too strongly on legal issues rather than factual disputes.  During a claim dispute, the insurer submitted an attorney familiar with insurance issues as an expert witness to explain the process of reviewing claims and interpreting policy documents, however the judge refused the expert because he was acting as an advocate rather than a source of knowledge.

Insurance Company Offers Attorney as Expert Witness

The dispute arose in 2012 when Atrium Medical Center was sued by a former patient claiming that he now faces a terminal illness because his primary physician allowed his condition to worsen by failing to advise him of the results of a CT scan performed in the hospital.  After being served with the lawsuit, Atrium notified its insurer Homeland Insurance Company (HIC) and filed a claim to have the insurance company provide a defense pursuant to Atrium’s policy.  Upon reviewing the claim, HIC denied coverage because the claim was not made against Atrium during the HIC policy period and was excluded by the Policy’ prior knowledge provision against claims that the insured knew about before the policy was in effect.

In response, Atrium filed a lawsuit against HIC alleging the insurer violated its duty of good faith and fair dealing by rejecting the hospital’s claim.  According to Atrium, HIC rejected the claim in bad faith by not conducting a reasonable review of the situation before issuing a denial of coverage.  HIC responded that it conducted and adequate and reasonable analysis of the claim as to meet industry standards of coverage on claims requesting legal defense.  In an effort to support its position, HIC called an attorney as an insurance coverage expert witness to tell the court that the insurer met its duty of good faith and fair dealing by conducting a sufficient investigation into Atrium’s claim.

Report from Insurance Attorney Expert Witness Contested

HIC submitted Michael Huddleston, an attorney with more than 30 years experience in insurance law, as an expert witness.  According to Huddleston’s report, HIC had a reasonable explanation for denying coverage under the “controlling legal concepts applicable under Texas law.”  Huddleston supported this claim by reviewing the relevant legal standard of bad faith claim denial under Texas law, and explaining that HIC did not take any steps that are outside of accepted common practice among insurance carriers which deny coverage based on the prior knowledge exception.  Huddleston’s expert witness report was written to help jurors understand the standard of “reasonableness” under Texas insurance law, and support the defendant’s position that it did not act in bad faith when denying Atrium’s claim.

Atrium argued that Huddleston’s expert report violated the Federal Rules of Evidence because it offered impermissible conclusions of law.  Under evidentiary law, an expert witness is not permitted to usurp the responsibility of judges by explaining the relevant law to jurors. These rules are in place to avoid situations where jurors rely on the conclusions of a legal expert rather than properly analyze all the facts and come to their own conclusions.  Arguing that Huddleston’s expert witness report violated the Federal Rules by giving jurors legal conclusions, Atrium requested the court prevent him from taking the stand during trial.

Federal Court Rejects Expert Witness on Legal Interpretation

Although the court acknowledged that attorneys are not barred from acting as expert witnesses, and may, in fact, testify to some matters that blend issues of fact and law, the judge found that HIC’s expert went too far in his analysis of the legal issues key to the case.  The court pointed out that Huddleston frequently cited legal cases throughout his report, and approached the issue from a purely legal background and way of thinking.  Huddleston, who has no experience working in the insurance industry, wrote the report from the perspective of an attorney and, naturally, his expert opinion focused on how Texas law applies to the dispute.  When Huddleston mentioned the factual issues, he did so only to frame them in light of the legal standard establishing when it is reasonable to reject an insurance claim.

Finding that his expert witness report read more like a legal brief than an analysis of the facts, the federal court in Texas dismissed Huddleston as an expert witness in the case because he improperly offered legal conclusions.  The case reminds attorneys that expert witnesses are not permitted to provide legal conclusions during their testimony, and provides an example of when legal conclusions by an expert go beyond what is permissible under the Federal Rules of Evidence.

Lighting and Audio Experts Testify in Trial of Cleveland Police Officer Accused of Manslaughter

The trial of a former Cleveland police officer charged with voluntary manslaughter for the shooting deaths of two people featured testimony from a number of expert witnesses this week.  Michael Brelo, 31, has been accused by prosecutors of manslaughter due to a 2012 incident in which he and 12 of his fellow officers fired 137 shots into a 1979 Chevrolet Malibu, killing occupants Timothy Russell and Malissa Williams, both of whom were unarmed.

Brelo has been charged with manslaughter for firing 49 of those rounds into Russell’s vehicle, some of which were fired from the hood of the car after Brelo allegedly jumped on it for a better vantage point. Brelo and his fellow officers have maintained in their recollection of the events that they felt they were in danger and reacted appropriately considering the circumstances.  To bolster their case, prosecutors called to the stand experts in lighting and audio to reconstruct the incident, demonstrate that Brelo and the other officers should have been able to better assess the low-risk nature of the situation, and support the argument that the officers acted improperly and criminally.

Lighting Expert Witness Testifies in Trial of Cleveland Police Officer

Earlier this week, James Benya of Benya Burnett Consultancy took the stand as a lighting expert witness to help reconstruct the scene of the shooting and support the prosecution’s argument that it should have been apparent to the officers that Russell and Williams did not pose a threat to their safety.  Benya is an engineer with more than 40 years of lighting experience called to testify about the lighting behind Heritage Middle School on the evening in question.  Benya considered the street lighting, time of day, placement of the vehicles, and weather conditions in his testimony to the court.

While on the stand, Benya noted that the cloud cover prohibited the moon from providing any source of light, but emphasized visibility was still possible due to the better-than-average lighting conditions of the middle school parking lot where the shooting took place.  Benya also noted that Russell’s light blue Malibu was parked between two street lights when officers opened fire.  Benya also supplemented his expert testimony with a recreation of the scene using pictures taken at the same time of night as the shooting under similar weather conditions.  Benya’s recreation included not only the static source of light provided by the street lamps, but also the dynamic illumination provided by lights on police vehicles.

On the strength of Benya’s testimony, prosecutors submitted the images from his recreation into evidence in an effort to show the court that it is possible to see into a parked vehicle in conditions identical to the ones faced by officers on the night of the shooting.

Prosecutors in Cleveland Police Trial Turn to Audio Expert Witness

Shortly after Benya’s stepped down from the stand, prosecutors called Robert C. Maher, head of the electrical and computer engineering department at Montana State University, to the stand as an audio expert witness.  Maher was asked to listen to a recording of the incident taken by the Bratenahl Police Department radio from the dashboard camera of one of the police cars.  Maher analyzed the video in 2014, and told the court that 15 of the final 18 shots came in rapid succession and were fired from the same gun.  The interval and sound of the shots supported this conclusion, and the court heard the audio as part of Maher’s expert testimony.

According to prosecutors, the 15 shots were fired from Brelo’s weapon as he stood on the hood of the car and fired in at Russell and Williams.  Brelo’s defense attorneys challenged Maher about the ambient noise that could impact a sound analysis – such as police sirens, distance, and other gun shots – but Maher maintained that the shots had come from the same gun despite factors that could influence his ability to make that determination.

Maher’s testimony was bolstered by identical findings by two other audio expert witnesses: Bruce Koenig, an expert in audio and visual forensics who worked for the FBI for 24 years, and Steven Beck, an audio expert.  Both Koenig and Beck testified that 15 of the final 18 shots were fired from the same gun, a conclusion they supported by pointing to the sound and succession of the shots.  Prosecutors will continue the case next week.