Category Archives: Expert Opinions

Boston Marathon Bomber Defense Team Calls Four Expert Witnesses

Defense attorneys for Dzhokhar Tsarnaev rested their case this week after building a case with the testimony of four expert witnesses.  The Tsarnaev defense argues that the young man was not the lead conspirator of the 2013 Boston Marathon Bombings, but instead was manipulated by his older brother into participating in the attack.  With the defense resting, the case will go to jury for a verdict on guilt and a determination on whether or not Tsarnaev is eligible to receive the death penalty if convicted.

Attorneys for Dzhokhar Tsarnaev Point to Older Brother

Throughout the trial of accused marathon bomber Dzhokhar Tsarnaev, the defense team has conceded his involvement in the commission of the attack that killed 3 people and wounded more than 260 during the 2013 Boston Marathon.  However, defense attorneys argue that Tsarnaev is not guilty of the more than 30 charges against him because he was coerced by his older brother into committing the crime.  Tamerlan Tsarnaev, 6-years Dzhokhar’s senior, has been the focus of the defense team for allegedly planning the crime and encouraging Dzhokhar to join by instilling anti-American and terrorist sentiments in him prior to the act.  Tamerlan was killed in a shootout with police while the brothers were on the run form police after the attack.

In order to bolster its defense, Dzhokhar’s legal team called four expert witnesses to reconstruct the details of the attack planning process that demonstrate Tamerlan largely acted alone before soliciting his younger brother’s help to carry out the act.

Boston Marathon Bomber Defense Calls Four Expert Witnesses

With the prosecution resting its case after calling 92 witnesses, including several expert witnesses, over the course of 15 days, Tsarnaev’s defense team presented a relatively short and succinct two-day case last week by calling only 4 expert witnesses to the stand. Each of the four following defense experts was called to shift blame away from the defendant and towards his older brother who allegedly planned and organized the attack:

  • Computer forensic expert witness Mark Spencer took the stand to testify about the Internet searches on bomb making made by the Tsarnaev brothers leading up to the attack. According to Spencer, the significant majority of Internet searches seeking information about the construction of homemade bombs were made from Tamerlan’s personal computer, not Dzhokhar’s.  Additionally, Spencer testified that Tamerlan’s Internet search history consisted of jihadist literature, including al-Qaeda’s English-language magainze, Inspire.  Dzhokhar’s computer, on the other hand, had only two references to jihad in its search history prior to the attacks.
  • FBI field photographer Michelle Gamble testified as an expert witness on the items recovered from Tamerlan’s apartment during the subsequent investigation of the attack. According to Gamble, all of the evidence of bomb-making and jihadist literature were found in Tamerlan’s possession, not Dzhokhar’s.
  • Gerry Grant, a cell phone analyst expert witness, took the stand to tell jurors that on two occasions when Tamerlan purchased the materials necessary to make the bombs, Dzhokhar’s phone was in a different location. In each case, Dzhokhar’s phone was used in southern Massachusetts while Tamerlan purchased items north of Boston and in New Hampshire.
  • Finally, defense lawyers for Dzhokhar called FBI fingerprint expert Elena Graff to explain to jurors that the defendant’s fingerprints were not on any of the materials used in the attack. Instead, the bomb-making materials and gun-cleaning equipment recovered from the Tsarnaev home only had Tamerlan’s fingerprints.  Further, Graff testified that all of the items recovered from the blast site in Boston had Tamerlan’s fingerprints and not Dzhokhar’s.

Taken together, the four expert witnesses were used to leave jurors with the impression that Tamerlan and not Dzhokhar planned the 2013 Boston Marathon bombing.  The defendant, who did not take the stand, has been portrayed as a participant but not mastermind in what is likely an effort to avoid the death penalty for his role in the attack.  Both sides reiterated their position in closing arguments early this week, leaving jurors to deliberate Dzhokhar’s fate over the coming days.

New Jersey Appellate Court Bans Expert Witness Bootstrapping

A New Jersey court has banned the practice of expert witnesses improperly testifying about the opinion of other experts during trial.  Known as bootstrapping, personal injury lawyers use it to take advantage of expert witnesses’ knowledge of opinions of other experts who are not present at trial, effectively getting in evidence that was not approved prior to the start of trial.  Last week, the New Jersey Appellate Division made an effort to stop bootstrapping by forbidding attorneys from asking experts about other witnesses not on the stand.

Plaintiff Attempts to Bootstrap Medical Expert in New Jersey Car Accident Lawsuit

The ruling against bootstrapping comes from the New Jersey case of James v Ruiz in which William James attempted to collect significant financial damages against Rolinda Ruiz who backed into his vehicle at a toll booth station and allegedly caused a permanent neck injury.  In an effort to highlight the extent of the injuries he suffered, Mr. James called as an expert witness Dr. Stephen Zabinski, a certified orthopedic surgeon, to testify about the extent of the plaintiff’s injuries.  Dr. Zabinski was called to testify about an apparent bulge in James’ neck revealed in a CT scan performed and reported on by Dr. Amerigo Falciani, a radiologist who was not called to testify during the trial.

After asking Dr. Zabinski to point out the disk bulge on the CT scan, James’ attorney asked the expert whether or not his observation was consistent with the report filed by Dr. Falciani.  Defense attorneys objected, and asked the trial judge to omit any mention of an expert witness who would not take the stand during trial.  When a defense expert, Dr. John Cristini, disagreed with Dr. Zabinski’s opinion, James’ attorney again attempted to reference the Falciani report, and was again stopped by the judge who told the lawyer, “You’re not going to back door the radiologist’s opinion into this case. He’s not here to testify.”

The issue came up again when James’ attorney attempted to reference Zabinski’s confirmation of the Falciani report during closing arguments.  Again, Ruiz’s attorney objected and again the judge agreed, this time telling jurors to disregard, “whatever a radiologist might have determined,” before adding, “The radiologist did not testify here. We are talking about the testimony of Dr. Zabinski and the testimony of Dr. Cristini.”  The jury returned a unanimous verdict in favor of the defendant Rolinda Ruiz having found no evidence of a permanent injury caused to Mr. James by the accident.  On appeal James’ lawyer alleged that the trial judge had improperly restricted his expert’s testimony by forbidding all mention of the radiologist’s report.

New Jersey Appellate Court Prohibits Expert Witness Bootstrapping

Judge Jack Sabatino, writing for the majority of New Jersey’s Appellate Division Court, affirmed the trial court’s decision to prohibit the type of expert witness bootstrapping testimony that would have admitted discussion of the non-testifying radiologist’s report.  According to Judge Sabatino, lawyers in New Jersey would no longer be allowed to ask an expert witness called in a civil trial whether or not findings on consistent with a non-testifying expert, “where the manifest purpose of those questions is to have the jury consider for their truth the absent expert’s hearsay opinions about complex and disputed matters.”  Judge Sabatino also disallowed expert witness bootstrapping when the purpose was to impeach credibility by one expert by referencing the work of another.

Judge Sabatino defended the argument by pointing out that having one witness testify about the position of another witness is impermissible hearsay, but courts have allowed the practice for experts as a means of validating testimony.  Although it had become commonplace, Judge Sabatino put a stop to the practice of bootstrapping by disallowing any effort to circumvent hearsay rules, even when attorneys are attempting to reinforce expert testimony by demonstrating consistency with other experts in the field.  Finding that allowing expert testimony “through the proverbial ‘back door’” via bootstrapping was in violation of New Jersey’s rules of evidence, the state appellate division instituted a prohibition on the practice that will largely effect plaintiff attorneys in personal injury cases who frequently employ the tactic.

Delaware Court Rejects Use of a Corporation as an Expert Witness

In late February, the Delaware Chancery Court was forced to consider whether or not a corporation could serve as an expert witness in a dispute over the valuation of a business.  Although corporations can be considered a legal person under other areas of legal doctrine, the Delaware court decided against extending personhood to corporations for the purpose of expert witness testimony.

Corporation Submits Expert Witness Report

In In re Dole Food Co, Inc. Stockholder Litigation the Delaware Chancery Court was asked to settle a dispute that arose over a valuation of stock between Dole and its controlling shareholder, David Murdock.  As part of the stock analysis, Dole was to submit a valuation of its business assets, but did not do so to Murdock’s satisfaction.  In response, Murdock hired Stifel, Nicolaus & Company Incorporated to conduct an independent review of Dole’s value and submit an expert witness report to aid the court in its decision.

The expert witness report submitted by Stifel was jointly signed by Stifel executives Seth Ferguson and Michael Securro, two ranking officers in the company.  Although Mr. Ferguson claimed primary responsibility for the contents of the report submitted by his company, he maintained that he was not hired as an expert witness to testify during trial and that Stifel was the official expert of record represented by the report.  Both Murdock and Ferguson argued Stifel was the expert hired to provide a value assessment of Dole’s assets for purpose of the trial, and the actual humans connected to the report were only connected as agents of Stifel, Nicolaus & Company.

Classifying a corporation as a person is not unheard of in the legal community.  Corporations have been considered “people” under campaign finance laws by the Supreme Court, and other arenas of law and economics similarly consider corporations to be treated as a person because of their ability to contribute to, and influence, legal and economic markets.  Classifying corporations as people allows the law to regulate and exercise authority over them without the necessity of separate rules.  Given the existing legal precedent for treating a corporation as a person, it is not surprising that a party make the attempt to extend the classification to expert witnesses, however, the Delaware Chancery Court declined the invitation and rejected Stifel as a viable expert in Murdock’s shareholder case against Dole.

Delaware Court Rules Corporations Cannot be Expert Witnesses

The Delaware Court acknowledged that corporations are often treated as “people” for legal and economic persons, but made an important distinction in the case of expert witnesses because all witnesses are required to testify from personal knowledge.  Further, any witness, including experts, must be able to take an oath or make affirmation to testify truthfully, have memory refreshed if need be, and either hear, or be sequestered from, the testimony of other witnesses.  Emphasizing this point, the Court wrote, “Lacking a voice, a corporation cannot testify.  Lacking ears, it cannot hear.  Lacking a mind, it cannot have personal knowledge or a memory to be refreshed.  Lacking a conscience, it cannot take an oath or provide an affirmation.”  Given this “incorporeal nature” of corporations, they cannot on its own do any of the things that witnesses are required to do.

The Court went on to point out that beyond failing to satisfy the requirements of witnesses in general, corporations also fall short of the standards required of expert witnesses.  According to the rule of evidence guiding expert witness requirements, an expert must be able to perceive facts and data, and to be qualified by “knowledge, skill, experience, training, or education.”  The Court stated that corporations can have attributes or culture, they cannot gain knowledge or acquire skills.  Nor can corporations interpret data or address problems with its analysis while questioned on the stand.

The Court acknowledged that agents for a corporation, such as Mr. Ferguson for Stifel, can bind corporations and be called to testify on behalf of a corporation, the inability of a business to satisfy the human elements required of an expert witness ultimately led to the decision that Stifel could not testify.  The Court concluded by allowing Mr. Ferguson to serve as the expert witness instead of Stifel, but would not allow the corporation to be the expert in the case.

Boston Marathon Bomber Trial Features Terrorism Expert Witness

This week the high profile trial of suspected Boston Marathon bomber Dzhokhar Tsarnaev featured expert witness testimony from a counter-terrorism expert called by prosecutors.  Defense attorneys representing Tsarnaev countered the terrorism expert with a vigorous cross-examination accusing him of portraying the defendant as a terrorist in order to sensationalize the trial and prejudice jurors.  Tsarnaev faces the death penalty if convicted for his actions to bomb the 2013 Boston Marathon.

Accused Boston Marathon Bomber on Trial

Dzhokhar Tsarnaev, who is accused of conspiring with his brother to plant two pressure-cooker bombs near the finish line of the 2013 Boston Marathon, has pled not guilty to the more than 30 counts against him, including murder and conspiracy to use a weapon of mass destruction to cause death, faces the death penalty if convicted. Dzhokhar and his older brother, Tamerlan, became the prime suspects immediately after the two bombs exploded during the 2013 marathon, killing three people and wounding more than 260.  Tamerlan died from wounds sustained during a subsequent shootout with police, but Dzhokhar was apprehended after being found hiding in a boat in the Boston area.

Over the last two years, police and prosecutors have gathered evidence to accuse Dzhokhar of over 30 counts of murder, attempted murder, terrorism, and conspiracy to cause death using weapons of mass destruction.  After a lengthy jury selection process, the guilt phase of Dzhokhar’s trial is underway and expected to rest later this week.  Depending on the verdict, prosecutors will then pursue the death penalty during a separate sentencing phase of the trial using the same group of jurors.  Using an expert witness to identify Dzhokhar Tsarnaev as a terrorist will not only aid the prosecution during the guilt phase of the trial, but will also provide an argument for aggravating circumstances that warrants consideration of the death penalty.

Prosecution Expert Witness Identifies Terrorist Behavior in Marathon Bomber

Earlier this week, prosecutors in the Boston Marathon bombing trial called Matthew Levitt, a terrorism expert at the Washington DC think tank The Washington Institute.  The Washington Institute analyzes United States policy in the Middle East, and Levitt has established himself as an expert in terrorist activities and ideals.  Levitt’s primary role in the trial was to examine a note written by Tsarnaev as he hid inside a boat while hiding from authorities after the marathon bombing.  The note, which is written in pencil on the wood lining the inside of the boat, criticized US activities in Muslim countries, asked Allah to make him a “Shaheed” (martyr), and included the phrase, “We Muslims are one body, you hurt one you hurt us all.”

While taking the stand as a terrorism expert witness, Levitt told jurors that the themes in Tsarnaev’s note are common among members of the global jihadi movement and echo ideas found lectures given by Anwar al-Awlaki – an American-born member of radical Islam with links to al-Qaida who was killed by a U.S. drone strike in Yemen in 2011.  Prosecutors argue that Tsarnaev’s note makes it clear that he and his brother saw the attack as a means of retaliation against US policy in the Middle East, and Levitt’s expert testimony supported the claim that the brothers “twisted Islamic principles” in a manner consistent with organizations defined as terrorists in the US.  Levitt’s terrorism expert witness testimony supplemented evidence gathered by the FBI from Tsarnaev’s computer and home that the prosecution has used to argue the defendant is an extremist who engaged in terroristic activities.

Defense Accuses Terrorism Expert Witness of Sensationalizing Case

Defense attorneys for Dzhokhar Tsarnaev have conceded that he was involved with the marathon bombing in 2013, but have argued that he was driven by the will of his older brother Tamerlan who planned the attack.  During cross-examination of the prosecution’s terrorism expert witness, Dzhokhar’s defense team criticized Levitt for attempting to sensationalize the trial by painting their client as a radical Muslim extremist, prejudicing the jurors against him.  Accusing Levitt of an opportunist who was looking to gain notoriety by testifying in a high profile trial, Tsarnaev’s defense team pried into the terrorism expert’s claims that the defendant was a radical extremist and not simply a teenager who was heavily influenced by his brother’s ideals.

The defense, which seems primarily focused on avoiding the death penalty, attempted to neutralize, or minimize, Levitt’s terrorism expert opinion by attacking his motives for taking the stand during the trial.  While not an uncommon strategy when cross-examining expert witnesses, defense attorneys will likely need to bolster their position that Dzhokhar was simply an accomplice to his brother’s schemes with expert testimony of their own.  The trial will continue throughout the week as the defense takes center stage.

Employment Discrimination Expert Witnesses Featured in Silicon Valley Lawsuit

The high profile gender discrimination lawsuit filed by Ellen Pao against her former employer Silicon Valley investment firm Kleiner Perkins Caufield & Byers culminated this week with an expert witness hired by the plaintiff eviscerating a defense expert’s testimony that the venture capital firm did not engage in discrimination against women.  Pao’s $16 million lawsuit has gained national attention for calling to question the male-dominated culture of Silicon Valley, so it is no surprise that both sides have turned to employment discrimination expert witnesses to discuss treatment of women in a high-end venture capital firm.

Ellen Pao Files High Profile Gender Discrimination Case against Venture Capitalist Firm

Ellen Pao, who was terminated from employment by venture capital firm Kleiner Perkins Caufield & Byers in October 2012, filed a lawsuit in California alleging that the company engaged in a pattern of sexual discrimination that created a hostile work environment for women.  During the trial, which has been closely watched in Silicon Valley investment circles, Pao’s lawyers painted a misogynistic picture of Kleiner Perkins by firing off a number of allegations including male partners saying women “kill the buzz” at meetings, taking all-male ski trips and dinners with Al Gore, having sexually inappropriate conversations about porn stars and “hot” female executives while on private planes, and giving inappropriate gifts such as a book of erotic poetry given to Pao by a senior male colleague.

Pao also claims that she was the victim of inappropriate sexual advances, was passed over for promotions because of her gender, and was retaliated against by a senior partner with whom she had an affair after she called the relationship off.  Citing an instance where two men with less seniority and experience were promoted instead of her, Pao highlighted her sexual discrimination lawsuit by arguing that the male partners preferred men in management roles.

Kleiner Perkins has focused much of its defense efforts on pointing to a consistent pattern of negative performance reviews given to Pao since she joined the firm in 2005, and her conflicts with employees throughout the firm.  Attorneys for Kleiner Perkins presented evidence to the jury that Ellen Pao was not qualified to succeed at the company regardless of her gender.  Supplementing the defense’s argument was a report from an outside investigator, Stephen Hirschfeld, who argued that the firm’s employment practices showed no evidence of gender discrimination.

Defense Expert Argues Against Gender Discrimination

On the eighth day of the trial, Stephen Hirschfeld took the stand as a defense expert witness to present the results of his investigation into Pao’s allegations that Kleiner Perkins engaged in gender bias against female employees.  According to Hirschfeld, Ms. Pao is smart, but difficult to work with and was unable to substantiate her serious allegations against the company.  Hirschfeld found no evidence of all-male trips that Pao complained of, and concluded that the relationship she had with a former managing partner at the firm was consensual and without consequence on her career.  After interviewing women who worked at Kleiner Perkins, Hirschfeld called the environment “tough but fair” where women can succeed.

In regards to Pao not getting promoted, Hirschfeld presented evidence that the plaintiff’s performance had not been well reviewed throughout her career, concluding that the partners had reason to pass over her in favor of more junior members of the firm.  Pao’s attorney criticized Hirschfeld for providing an incomplete analysis of the Kleiner Perkins environment, and this week the plaintiff called her own expert witness to contradict Hirschfeld’s investigation.

Plaintiff Expert Criticizes Bias Investigation in Pao Gender Discrimination Case

Attorneys for Ellen Pao called Allison West of Employment Practices Specialists as an employment discrimination expert witness to contradict Hirschfeld’s report that Kleiner Perkins did not engage in discriminator behavior.  According to West, Hirschfeld’s analysis failed to thoroughly evaluate whether or not the men at the company were held to different standards than the women.  While Hirschfeld researched Pao’s direct claims, West argued that he failed to look at men who were in the same position as the plaintiff to determine if they had similar challenges in succeeding at the firm.  Further, West testified that Hirschfeld did not completely investigate Pao’s complaints by failing to interview all relevant witnesses or consider evidence supporting her discrimination argument.

On cross-examination, West was subject to a rigorous attack from lead attorney for Kleiner Perkins, Lynne Hermle.  Hermle pointed out that Pao’s performance reviews had very little positive feedback, while the reviews for the two men who were promoted over her had several glowing remarks, arguing that West had also conducted a bias investigation into Pao’s case.  The Pao trial, which could send significant ripples across the Silicon Valley business landscape, will wrap up this week.

Forensic Expert Witness Claims Death was Suicide in Utah Murder Trial

The case against a Utah doctor accused of murdering his wife hit a snag this week when a forensic expert witness testified that the wounds the victim suffered were likely self-inflicted, suggesting the death was a suicide.  The expert testimony is the latest dramatic turn in the murder trial of Johnny Brickman Wall, and gives defense attorneys a compelling argument for sufficient reasonable doubt to warrant an acquittal.

Utah Doctor Accused of Murdering His Wife

In 2011, Uta von Schwedler, the 49-year-old ex-wife of Johnny Wall, was found dead in a bathtub full of water in her Utah home.  The subsequent murder investigation turned to Wall due to the couple’s messy divorce and bitter battle for custody of the four children. After examining all the available evidence, prosecutors charged the 51-year-old Wall with first-degree felony murder in von Schwedler’s death, and have built a case arguing that he attacked his ex-wife in her home and left her body in the bathtub.

Police and prosecutors point to defensive wounds on von Schwedler’s arms and an injection mark that was covered by a stab wound – where Wall allegedly injected her with Xanax – as evidence that the woman was murdered by her ex-husband, however, the cause of death has not been definitively settled. Throughout the investigation and trial, Wall and his defense team have argued that von Schwedler’s death was a suicide, and called upon forensic expert Dr. Judy Melinek to cast doubt on the conclusion that von Schwedler was murdered.

Forensic Expert Suggests Victim Committed Suicide

Giving genesis to the defense’s argument that von Schwedler’s death was a suicide rather than a homicide was the uncertainty by the Utah assistant medical examiner who listed her death as “undetermined” due to difficulty ascertaining the cause.  Although the medical examiner did not take a position, the defense called forensic expert witness Dr. Judy Melinek took the stand to present an argument that von Schwedler injured herself and took Xanex before drowning in her bath tub.

According to Dr. Melinek, the cuts on von Schwedler’s arms that prosecutors claimed were defense wounds were likely self-administered.  Dr. Melinek observed that the wounds were parallel, which usually indicates a suicide attempt rather than defensive wounds, which are usually at an angle or horizontal on the arm.  Further, Melinek informed jurors that the cuts showed sign of hesitation, which a suicidal person does when “they are testing to see what they can tolerate.”

Dr. Melinek also pointed out that there were no signs of a struggle at the scene, which, in her expert opinion, indicates von Schwedler was not attacked.  When asked on cross-examination if the scene was staged, Dr. Melinek responded that it did not appear to be, citing a lack of Xanax pills at the scene to further the appearance of a suicide.  Overall, Dr. Melinek’s expert opinion was that von Schwedler took Xanax, slit her own wrists, got into the bathtub and drowned – leaving the defendant Wall out of the equation.

Defense Seeks Reasonable Doubt with Expert Testimony

In offering Dr. Melinek as a forensic expert witness, Wall’s defense team has presented a compelling argument to reasonably doubt the prosecution’s claims that the defendant killed his wife.  The legal standard for conviction in criminal trials allows jurors to convict only if the defendant is guilty beyond all reasonable doubt, and Dr. Melinek’s expert testimony provides a strong basis for doubt.  Even if jurors think it is more likely that the prosecution is right, the existence of a second theory of von Schwedler’s death that is supported by an experienced forensic expert witness could weaken the jury’s belief in guilt sufficiently to acquit Wall.  Dr. Melinek might be wrong, and might even have failed to convince jurors that the death was a suicide, but her expert testimony that von Schwedler’s death was not a homicide casts an impossible-to-ignore shadow over the prosecution’s case.

Aaron Hernandez Murder Trial Features Expert Witness Testimony

The murder trial of former NFL star Aaron Hernandez continued this week with prosecutors presenting two expert witnesses who placed the defendant and the victim at the scene of the shooting. As Hernandez’s murder trial progresses, prosecutors have built their case with experts to interpret the evidence for jurors and fingerprint and DNA testimony is the latest attempt to bolster the state’s case.

Aaron Hernandez on Trial for Murder

Hernandez is on trial for the murder of Odin Lloyd, a 27-year-old acquaintance of the former New England Patriot who was shot and killed on June 17th, 2013. Prosecutors charged Hernandez after police investigators uncovered evidence placing Lloyd and Hernandez together on the night of the murder and a series of communications between the two that indicated they had a recent disagreement.

Although the gun used to shoot Lloyd has not been found, and police have not been able to directly point to Hernandez as the shooter, the defendant can be found guilty of murder under a Massachusetts “joint venture” law that allows for conviction of any person who knowingly participated in a plan to commit the crime. Hernandez, who allegedly worked with two other men to orchestrate Lloyd’s killing, was arrested on June 26th, 2013 with his trial opening on January 29th of this year.

Police Fingerprint Expert Witness Testifies in Hernandez Murder Trial

Massachusetts State Police Trooper David Mackin took the stand this week to explain the fingerprint process that investigators used to place Hernandez and two alleged accomplices, Ernest Wallace, Jr. and Carlos Ortiz, at the scene of Lloyd’s murder. Central to Mackin’s testimony was evidence found in a Nissan Altima that prosecutors allege Hernandez rented in order to transport Lloyd to the murder scene on the night of June 17th. According to Mackin’s fingerprint investigation, all four men – Hernandez, Lloyd, Wallace, and Ortiz – left fingerprint evidence inside of the vehicle. Hernandez’s were on the driver’s side door handle and Lloyd’s were on the rear passenger door.

DNA Expert Witness Corroborates Prosecution in Hernandez Trial

Adding to the testimony from Trooper Mackin, prosecutors looked to a DNA expert witness from the Massachusetts State Police Crime Lab, Diana Fife Biagotti. Biagotti testified that DNA from Hernandez and Lloyd were found on the remains of a marijuana cigarette butt from the scene of the shooting, supporting the prosecution’s claim that the two men were together in the place where Lloyd was killed. Further, Biagotti testified that the defendant’s DNA was detected on a shell casing recovered from the Altima after it was returned to the rental agency. Police investigators recovered the shell casing stuck to a piece of chewing gum, and, according to Biagotti’s expert testimony, the casing contained evidence that Hernandez had handled it after it was fired.

Hernandez Attorneys Challenge Prosecution Expert Witnesses

Attorney for Hernandez, James Sultan, took both prosecution expert witnesses to task for failing to reconstruct a complete story of the night of the shooting. Sultan accused both experts of coming to conclusions that they wanted to see or hoped to see rather than objectively testifying about the facts of the case. In response to Trooper Mackin’s fingerprint testimony, Sultan pointed out that the fingerprints in the Altima could have been made at any time, and did not necessarily support the conclusion that Hernandez and Lloyd were in the vehicle together. Sultan also question Biagotti for failing to test other items found in the vehicle for DNA, suggesting that the police cherry picked evidence rather than conduct a thorough investigation.

Prosecutors have also presented expert witnesses on forensic video evidence to analyze footage of Hernandez’s activities on the night in question, and on crime scene reconstruction to suggest that Lloyd’s killers were in close proximity to him when he was shot. Sultan has challenged each expert for failing to fully connect all the dots back to Hernandez in order to give jurors an accurate picture of Lloyd’s murder. The trial is expected to last late into March with the defense yet to present its case.

Jesse Matthew Murder Trial on Hold for DNA Expert Witness

The murder trial of Jesse Matthew, Jr. has been delayed after a judge ruled this week that the defense would be entitled time to use the services of a state-appointed DNA expert witness.  Matthew is facing trial for murder in the death of Hannah Graham late last year, and will consult a DNA expert prior to mounting his defense.

Jesse Matthew, Jr. a Suspect in the Death of Hannah Graham

Graham, a student at the University of Virginia, disappeared in September of last year after a night out.  Suspicion fell on Matthew after surveillance footage showed him leaving a Virginia bar with Graham on the night she disappeared.  In October, Graham’s remains were discovered on an abandoned farm near UVA’s campus near the location of the remains of a Virginia Tech student, Morgan Harrington, that were discovered in 2010.

After a brief investigation, Matthew was arrested for Graham’s disappearance and death, leading to evidence that he was involved with Harrington’s murder as well.  According to police, forensic evidence obtained after Matthew was arrested links him to the death of both girls, leading investigators to issue the following statement, “For the past five years, the Virginia State Police has been aggressively pursuing the investigation into the disappearance and death of 20-year-old Morgan D. Harrington of Roanoke, Va. Last week, the arrest of Jesse L. Matthew Jr., 32, of Charlottesville, Va., provided a significant break in this case with a new forensic link for state police investigators to pursue.”

Although the investigation continued after Matthew was arrested, police and prosecutors presented preliminary forensic evidence sufficient to charge the defendant with the murder of both Hannah Graham and Morgan Harrington, as well as a 2005 sexual assault that took place in northern Virginia.

Jesse Matthew Requests Delay to Hire DNA Expert Witness

Given the forensic evidence linking Matthew to both murders, his defense team argued that he should be entitled to the opportunity to have a DNA expert witness evaluate the evidence and provide a report.  With the trial set to begin on June 29th, Matthew’s defense attorneys argued that they needed more time to allow them to find a DNA expert and review the forensic evidence.  Prosecuting attorney Denise Lunsford acknowledged that the Commonwealth’s case relied “in some way on DNA evidence,” and did not object to the motion to delay the trial in order to find the appropriate expert witness.

After reviewing Matthew’s request, the trial judge overseeing the proceedings granted his request to continue the trial in order to appoint a qualified DNA expert witness to review the forensic evidence used by the prosecution.  Given that Matthews is facing 20-years to life for his alleged crimes, the ruling comes as no surprise.  Defendants are entitled to a full and fair defense in criminal trials, and the seriousness of the charges combined with the prosecution’s reliance on forensic evidence necessitates a ruling that Matthew be entitled to the appointment of a DNA expert to testify in the upcoming trial.

The judge did not set a new trial date, but a hearing on May 5th will finalize the details of the trial and the expert witness who will be appointed to the defendant’s case.

New Jersey Judge Excludes Expert Witness Testimony in Accutane Lawsuit

A New Jersey judge struck a blow to thousands of pending cases against the manufacturer of Accutane this week by denying plaintiffs use of an expert witness connecting the drug to Crohn’s disease.  Finding that the expert testimony failed to meet the standards of reliable scientific analysis, Atlantic County Superior Court Judge Nelson Johnson prevented plaintiffs from using a key expert in their Accutane lawsuit.

Plaintiffs Allege Accutane Causes Crohn’s Disease

By February of this year, more than 6,700 lawsuits against Accutane’s manufacturer Roche Laboratories were combined and heard by Judge Johnson.  Plaintiffs across the country claim that the acne medication posed several harmful side effects including depression, birth defects, ulcerative colitis, and inflammatory bowel disease (IBD).  Crohn’s disease is a chronic gastrointestinal type of IBD with symptoms ranging from severe diarrhea, fatigue, abdominal pain, rectal bleeding, and weight loss.  Crohn’s disease can lead to cancer, bowel perforation, and other life-threatening health complications.

According to plaintiffs, Accutane increased the risk of Crohn’s disease, and Roche Laboratories failed to provide adequate warning about the drug’s side effects.  In order to support allegations, the plaintiffs submitted reports by two expert witnesses who advanced research that claimed to connect the acne drug to Crohn’s.

Accutane Plaintiffs turn to Expert Witnesses

At issue before Judge Johnson were the expert witness reports from Dr. Arthur Kornbluth, a professor at the Mount Sinai Medical School, and David Madigan, a statistics professor at Columbia University.  Dr. Kornbluth and Madigan compiled and interpreted information from hundreds of studies, reports, and treatises from relevant scientific literature in order to present Judge Johnson with a consolidated report that weeds through the existing work on Accutane and presents an argument that the drug increases the risk of Crohn’s disease.

According to the expert witness report from Kornbluth and Madigan, there are several unreliable studies on the effects of Accutane that downplay its negative side effects.  The two experts discounted these works, and highlighted a selection of other studies and statistical data that point to a connection between the acne medication and IBD complications including Crohn’s.

New Jersey Judge Dismisses Accutane Plaintiffs’ Expert Reports

Acknowledging that Kornbluth and Madigan were accomplished experts in the field, Judge Johnson nonetheless found their report to fall short of the “sound and well-founded methodology” that is expected of expert witnesses in defective drug litigation.  Of primary concern to Judge Johnson was the experts’ reliance on a small selection of available studies on the connection between isotretinoin, the active ingredient in Accutane, and IBD.  Johnson, who personally reviewed 400 documents the two expert witnesses relied on, pointed out that the studies Kornbluth and Madigan looked to were small samples of the available research.  Finding that the plaintiffs’ experts dismissed larger studies that did not point to a connection between Accutane and Crohn’s, Judge Johnson excluded the experts for selectively presenting research and being “willing to contort the facts and torture the logic associated with plaintiffs’ hypothesis.”

Throughout his opinion, Judge Johnson remained true to the role of judges as gatekeepers of expert witness scientific reports by focusing less on the conclusions reach by Kornbluth and Madigan, and more on the methodological process which the experts used.  Johnson found that the research presented by the Accutane experts selectively focused on reports that bolstered their conclusions and was therefore limited in its scope.  Concluding that the Kornbluth and Madigan were driven more by conclusions than by sound scientific research, Judge Johnson excluded their testimony, effectively pumping the brakes on thousands of Accutane lawsuits.

EEOC Expert Witness Excluded for Unreliable Methodology

A criminal records expert witness has been dismissed from an Equal Employment Opportunity Claim (EEOC) lawsuit for sub-standard research that cherry-picked data to support the plaintiff’s case.  The Federal Fourth Circuit Court of Appeals upheld the dismissal last week, and reaffirmed the high methodological standards that expert witnesses are held to.

Expert Witness Supports EEOC Claim

Litigation in EEOC v FreemanEE due to the defendant’s regular practice of conducting criminal background checks for all job applicants, and dismissing applicants with prohibited criminal histories including violent felonies.  In 2008, an applicant who was denied a position with Freeman filed a charge of discrimination alleging that the policy of criminal background disproportionally affected black applicants in violation of Title VII of the Civil Rights Act.

As the case prepared for trial, the EEOC filed an expert witness report from Kevin Murphy, an industrial / organization psychologist, that purported to demonstrate that Freeman’s criminal record checks discriminated against black applicants.  After a series of supplemental reports from Murphy, Freeman filed a request to have the expert reports dismissed for presenting unreliable data and not adding value to the litigation.  Upon review of the Murphy reports, the trial court agreed with the defendant and rejected the EEOC’s expert.

Fourth Circuit Rejects EEOC Expert Witness on Appeal

The EEOC appealed the lower court’s decision to dismiss its expert witness to the 4th Circuit, but the appeals court was similarly unconvinced by Murphy’s efforts.  First, the Court took issue with Murphy’s decision to exclude hundreds, if not thousands, of applicants that Freeman reported conducting criminal background checks on.  Murphy took a limited sample of applicants to Freeman’s business, and the Court felt that his expert witness report was therefore not representative of the effect criminal record checks had on everyone who applied for a job during the period at issue.  By limiting his sample, the Court found that Murphy had selected data that would support the EEOC’s case rather than paint an accurate picture of the effect of criminal record checks.

Going further, the Court found that Murphy’s expert witness report featured a number of “mind-boggling” errors and unexplained discrepancies in interpreting the criminal record check database that he presented.  From miscoded applicants, to incorrect racial designations, to double-counted records, to missing data throughout the report, Murphy’s efforts were littered with what can generously be considered errors, and suspiciously be viewed as attempts to manipulate the data to favor the EEOC’s claims.  One of the 4th Circuit Justices even wrote separately to admonish the EEOC for “disappointing litigation conduct” in attempting to use Murphy as an expert witness despite his methodological shortcomings and habit of using suspect data that may be “cherry-picked” to favor one side.

Finding “the sheer number of omissions in Murphy’s analysis renders it ‘outside the range where experts might reasonably differ,’” the 4th Circuit agreed with the trial court that the EEOC’s expert witness failed to provide a reliable report and was therefore not fit to testify at trial.  As a result of the decision, the EEOC’s complaint has been dismissed.