Category Archives: Expert Opinions

Police Tactics Expert Witnesses Testifies During Cop Criminal Trial

A police tactics expert witness testified at the trial of an officer accused of excessive and unnecessary use of force in the death a 95-year-old man during a nursing home incident.  The incident taking place in a Chicago suburb gained national attention in 2013, and the resulting criminal trial featured expert police testimony this week that supported the prosecution’s case that the officer in question went too far in exercising his authority to use force.

Officer in Beanbag Shooting Death Faces Trial

Officer Craig Taylor came to trial for shooting John Wrana with 5 beanbag bullets during a confrontation in 2013.  The unfortunate incident between the World War II veteran and the Park Forest, Illinois officer started when Taylor was one of several officers to respond to a 911 call from staff at the Victory Center Retirement home.  According to Victory Center staff, Wrana resisted a risky surgical procedure due to fear of ending up on life support, becoming agitated, combative, and threatening before striking an EMT on the scene.  The first officers arriving on the scene confronted Wrana in his nursing home apartment in an effort to calm him down, but retreated after the 95-year old threatened them with what appeared to be a knife.

As the confrontation escalated, the responding officers called for backup, and Officer Taylor joined the scene along with Commander Michael Baugh, who brought a riot shield and a 12-gauge beanbag shotgun.  After Wrana’s continued refusal to resolve the situation, the officers entered the apartment using Baugh’s riot shield and attempted to neutralize Mr. Wrana by use of a Taser.  When the Taser charge failed, Officer Taylor directly ordered Wrana to drop the weapon before firing five beanbag rounds at him from a distance of 6 – 8 feet.  After refusing surgery, Wrana died from his wounds at a local hospital.

Officer Taylor testified that he was afraid for his life and the life of his fellow officers, and believed that it was reasonable to discharge his less-lethal weapon at a suspect who was threatening violence and refusing to comply with police orders.  Prosecutors disagreed during trial, and presented evidence in the form of expert witness testimony that argued that the confrontation was escalated by Officer Taylor unnecessarily.

Police Expert Witness Testifies Officer Used Excessive Force

To bolster its case that Officer Taylor used excessive and unnecessary force, the prosecution called to the stand Frank Murphy, a former New Jersey cop who now works as a police tactics expert witness.  After reviewing the facts of the Wrana shooting, Murphy testified, “There was no threat until Officer Craig Taylor and the others confronted him.”  Finding that Officer Taylor and his colleagues went too far, Murphy’s expert testimony criticized the police for not choosing to rely on their riot shield, which could block a knife attack, to approach Wrana and subdue him without use of beanbag bullet shotgun.

Defense attorneys for Officer Taylor offered a vigorous cross examination of the prosecution’s police tactics expert witness, using the opportunity to point out that Taylor believed he had been following procedure and that there were risks of injury to Wrana by Murphy’s proposed use of the riot shield.  Murphy maintained that, in his opinion, the situation was only elevated to the level of violence due to Taylor’s unnecessary use of the beanbag shotgun that led to Wrana’s death.  The use of a beanbag weapon was, according to Murphy’s expert testimony, an excessive and unnecessary use of force.

Defense Argues Victim Declined Life Saving Procedure

An interesting side note to the trial that may minimize the impact of Murphy’s police tactics expert testimony is the defense’s argument that ultimately Wrana’s refusal of surgery after the shooting was what caused his death.  During testimony from one of the doctors on scene at the Victory Center home, it was revealed that Wrana repeatedly denied life-saving measures to remedy the injuries sustained during his confrontation with police.  Defense attorneys for Officer Taylor will likely present a medical expert witness to establish Wrana could have survived, meaning the actions of the police were not the ultimate cause of the 95-year-old’s death.

If a jury accepts Murphy’s expert testimony that Officer Taylor acted with excessive and unnecessary force, and also accepts that Wrana would have lived if he had accepted medical attention, then the officer on trial would likely face lesser consequences.  While he still may have acted excessively, which is a matter of debate considering Wrana’s role in the incident, Officer Taylor may not have been ultimately at fault for causing death.  As with all police-use-of-force trials, the prosecution’s case rests heavily on its police tactic expert witness, but in this particular case a medical expert will also impact the outcome.

 

Federal Court Rejects Asbestos Expert Witness Testimony

A federal court in Chicago dismissed expert witness testimony in an asbestos lawsuit last month due to insufficient scientific support for the “Any Exposure” theory relied upon by the expert. The “Any Exposure” theory, discussed among asbestos and medical experts, argues that any level of asbestos exposure, no matter how minute, could cause long term medical harm. The US District Court for the Northern District of Illinois ruled that the expert theory was insufficiently supported by medical science and dismissed the testimony from trial.

Asbestos Lawsuit Argues “Any Exposure” Theory

Charles Krik filed a lawsuit against several companies alleging that he developed lung cancer as a result of his exposure to asbestos-containing products. The defendant looking to dismiss the “Any Exposure” theory, ExxonMobil, argued that its role in Mr. Krik’s injury was too small to justify inclusion in the lawsuit. As part of his evidence, Krik sought to introduce asbestos expert testimony from Dr. Arthur Frank who was prepared to opine that each instance of exposure to asbestos, regardless of duration, is a medically significant factor in causing conditions such as lung cancer.

The theory relies on scientific studies that indicate there is not a known threshold for safe levels of asbestos exposure, and argues that a single dose of asbestos is dangerous. Mr. Krik argued that his lung cancer was caused by cumulative exposure to small doses, and looked to the “Any Exposure” theory to demonstrate that each exposure, regardless of dosage, was a contributing factor to the cumulative effect the asbestos had on his body. Had this theory been accepted, ExxonMobil could be found liable despite its argument that the Plaintiff could not demonstrate he had been exposed to asbestos on company property.

Federal Court Denies “Any Exposure” Theory

This “Any Exposure” or “Each and Every Exposure” theory has been adopted by some medical experts who study the effects of asbestos, but the theory had not been advanced in federal court until Krik’s case. The Chicago federal court was tasked with applying the admissibility standards of expert witness testimony outlined in Federal Evidence Rule 702 and Daubert v Merrell Dow to determine if the “Any Exposure” theory is scientifically reliable enough to be used in legal cases.  After reviewing the theory and its possible application to Krik’s asbestos lawsuit, the court denied portions of the expert testimony that attributed cause of the plaintiff’s lung cancer to any small dosage.

The court’s primary issue with the “Any Exposure” theory presented during pre-trial expert reports was its lack of toxicological basis and disregard for the scientifically held belief that the “dose makes the poison.” Declining to address the issue about the level of asbestos exposure required to cause lung cancer was part of the plaintiff’s strategy, and the court found this to be a fatal flaw in the effort to connect the defendant’s actions to the plaintiff’s injuries. The court was not persuaded by the approach taken by Krik’s expert witness, who merely argued that the “Any Exposure” theory generally suggested that any and all exposure to asbestos was sufficient to cause harm and declined to provide specific evidence about the doses Mr. Krik had been exposed to from the defendant’s products, and found the proposed expert testimony to be “unacceptable” as evidence of cause.

Expert Witnesses on Asbestos Exposure Allowed

Although Mr. Krik failed to present an expert witness that offered acceptable testimony on the “Any Exposure” theory, the court would allow experts to discuss how his specific exposure level could contribute to lung cancer. Mr. Krik will be permitted to have fact witnesses testify about his exposure to asbestos while at the ExxonMobil facility, and then use expert testimony to connect the particular exposure he suffered to the cause of lung cancer. Unlike the “Any Exposure” testimony, Krik’s acceptable expert testimony would specifically attempt to link his asbestos exposure to his lung cancer.

The “Any Exposure” theory is not necessarily left outside of the courtroom looking in after this ruling.  While plaintiffs should be cautious about advancing a theory that has questionable scientific support, the court left open the possibility of an asbestos expert witness using the “Any Exposure” theory to explain case-specific facts in an effort to link exposure to a medical harm. The Krik expert witness failed largely because he spoke too generally and did not provide enough specific evidence identifying the defendant’s actions as cause of the plaintiff’s harm, but a carefully crafted expert opinion could remedy this misstep by better incorporating the “Any Exposure” theory into the facts of the case in question.

 

 

Vehicular Manslaughter Trial Turns to DNA Expert Witnesses

A vehicular homicide trial in Fayette County, Georgia featured DNA expert witness testimony focused on determining whether or not the Defendant was behind the wheel at the time of a fatal one-car accident. Serene Richter, 46, stands accused of causing the accident while under the influence of alcohol, but has disputed the prosecution’s ability to prove that she was driving the car and caused the crash that killed Samuel McKnight, 44.

Driver Uncertain in Vehicular Homicide Trial

On June 6th, 2011 a Hummer H3 carrying both Richter and McKnight careened off Bute Road in North Union, Georgia, rolled several times, and killed the 44-year-old McKnight after striking a telephone poll. After investigation into the accident, police charged Richter with homicide by vehicle, homicide by vehicle while driving under the influence, driving under the influence, and several traffic violations. Prosecutors claim that Richter was driving with a blood alcohol level of 0.142 at the time of the accident, making her guilty of all charges.

Richter’s attorney, in response, contends that it was Samuel McKnight, whose blood alcohol level was 0.255, who was driving the car and Richter was the passenger. In an effort to settle the dispute over which occupant was behind the wheel of the vehicle, two forensic expert witnesses were called to discuss DNA evidence on the driver’s side airbag that could identify who caused the accident.

Vehicle Manslaughter Case Uses DNA Expert Witnesses

Amy Irwin, a forensic DNA expert witness from the police crime lab, took the stand to explain that she and another scientists studied DNA profiles of samples taken from the driver’s and passenger’s side airbags of the H3. According to Irwin, the passenger airbag did not provide sufficient DNA to identify either Richter or McKnight as the passenger, but aided prosecutors by testifying that there was substantial DNA on the driver’s side but none of it belonged to McKnight – indicating that he had not been driving at the time of the accident.

Sara Harner, another DNA expert witness working as a police forensic scientist, supported Irwin’s findings by testifying that Richter’s DNA was on the driver’s side airbag but not on the passenger side. Both expert witnesses withstood rigorous questioning from Richter’s attorneys regarding the reliability of the DNA evidence due to the fact that the samples were not collected from the vehicle until a week after the crash, and spent more than two years in storage before laboratory testing.  Harner, however, told the court that the DNA was properly stored and untainted.

DNA Expert Testimony Tells Partial Story

While the testimony by DNA expert witnesses Irwin and Harner bolster the prosecution’s argument by indicating that Richter was on the driver’s side while McKnight was not, both forensic experts acknowledged that the DNA did not definitively align the occupants. Attorneys for Richter concluded the cross examination by inquiring whether or not it was reasonable that the placement of DNA was the result of unrestrained occupants shifting places while the vehicle rolled, and the experts had to concede that possibility.

Although DNA results carry gravitas as convincing physical evidence, the Richter trial demonstrates that it cannot make an open-and-shut case, particularly in a criminal trial where prosecutors must convince jurors of guilt beyond a reasonable doubt. Whenever DNA traces are left behind, attorneys must investigate the circumstances of the incident to piece together the puzzle explaining exactly how and why the DNA was present at the scene. Given the weight attached to DNA, attorneys opposing the evidence must be prepared to question forensic experts in such a manner that casts doubt on the strength and integrity of the evidence. Whether or not Richter’s attorney poked sufficient holes in the prosecution’s DNA expert testimony by casting doubt on the evidence’s ability to affirmatively place the defendant behind the wheel remains to be seen as the trial is expected to go to jury in the coming weeks.

Spanish Soap Opera Copyright Trial Features Expert Witnesses

A federal judge in Florida will hear competing expert witnesses explain the finer points of Spanish telenovelas in a copyright legal battle between two Spanish-language TV networks.  Telenovelas, a popular Spanish-language day-time drama similar to American soap operas, are at the center of a lawsuit between Latele Television, C.A. and Telemundo Communications Group, and Miami Federal Judge Jonathan Goodman has agreed to hear telenovela expert witnesses from both sides during trial.

Spanish-Language Channels Battle over Telenovela Similarities

Latele Television, copyright holder for Maria Maria filed the lawsuit against Telemundo for copying the show in its El Rostro de Analia.  Maria Maria, which began its run in 1989, and El Rostro de Analia, which first aired in 2008, are both about a case of mistaken identity between two women who look alike.  The plots, which both involve health doses of affairs, amnesia, love triangles, and illicit activity, arguably share similarities beyond the conventional soap opera elements, causing Latele Television to sue in an effort to collect royalties it argues Telemundo obtained by copying the 1989 show.  Pointing out that the lead writer from Maria Maria is the same man responsible for the story in El Rostro de Analia, Latele argues that Telemundo’s recent version goes beyond the standard practice of borrowing story and plot elements from other telenovelas and enters the realm of copyright infringement.

Telenovela Expert Witnesses Set to Take Stand in Copyright Case

The Plaintiffs plan on using Dr. Tomas Lopez-Pumarejo, a Brooklyn College professor who has written a book on television serial dramas, as a telenovela expert witness.  Dr. Lopez-Pumarejo conducted a literary analysis of both Spanish-language dramas and found what he called “substantial and striking similarities” between the two.  During a Daubert hearing deciding which experts would be permitted to testify in the upcoming trial, Dr. Lopez-Pumarejo stated that the similarities between the two shows, “leaves – in my opinion – no doubt that [El Rostro de Analía] is a remake of [María María].”

In an effort to counter Dr. Lopez-Pumarejo, the Defendant has called as an expert witness Dr. Carolina Acosta-Alzuru.  Dr. Acosta-Alzuru, who is a professor at the University of Georgia, has written a book on Venezuelan telenovelas and is prepared to testify that there are substantial differences between the two shows that refute a copyright claim.  Dr. Acosta-Alzuru has said of the dissimilarities between El Rostro de Analia and Maria Maria, “in terms of core plot development, triangle structure, character design, telenovela subgenre, and qualitative characteristics of dialogue far outweigh the limited similarities in the triggering plot.”

In the early stages of the lawsuit, both parties submitted Daubert motions requesting the other’s expert witness be disallowed from participating in trial.

Federal Judge Admits Telenovela Expert Witnesses

Defendant Telemundo argued that Dr. Lopez-Pumarejo had not conducted sufficient investigation of the two shows before coming to his conclusion that they were similar.  The Plaintiff’s expert witness watched 33 episodes of Maria Maria and 53 episodes of El Rostro de Analia to formulate his opinion, which only equates to 23{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the combined aired programming.  Arguing that an expert who has only been exposed to less than a quarter of the material in question cannot possibly offer adequate commentary on the matter, Telemundo asked Judge Goodman to dismiss Dr. Lopez-Pumarejo before trial began.

In its own motion, the Plaintiff requested that Dr. Acosta-Alzuru be disqualified because her qualifications to comment on the issue were insufficient.  Pointing out that Dr. Acosta-Alzuru is not a literary expert or a copyright infringement expert, Latele Television argued that she lacked the authority to come to an expert conclusion despite the fact that Dr. Acosta-Alzuru watched all 376 hours of aired content and wrote synopses of each episode of both shows.

In response to both motions, Judge Goodman found that both experts had passed the basic Daubert requirements of reliability necessary to admit expert testimony.  Telling the parties that their complaints go to the weight of the expert testimony rather than the threshold question of admissibility, Judge Goodman determined that any weaknesses evident in the expert testimony should be exposed during trial for the jury to consider.  As the telenovela copyright trial moves forward in the coming months both sides will not only be required to incorporate expert testimony into their argument, but also prepare to dismantle an opposing expert opinion during cross-examination.

10th Circuit Dismisses ADA Claim for Lack of Expert Witness

Earlier this month, the U.S. Court of Appeals for the 10th Circuit upheld the dismissal of a lawsuit because the plaintiff failed to provide an expert witness connecting a diagnosed medical impairment to the harm she allegedly suffered.  In its decision, the 10th Circuit clarifies the standard for proving a medical condition in an ADA claim and reinforces the need for medical expert witnesses.

ADA Plaintiff Alleges Injury Caused Failure to Work

In Felkins v City of Lakewood, Plaintiff Cynthia Felkins, formerly an employee for the City of Lakewood, Colorado, claimed that a medical condition called avascular necrosis caused two significant injuries that prevented her from working for long stretches during the early part of 2009.  In late 2008, Felkins suffered from a broken femur causing her to miss over 466 hours in the first 10 months of her job as an emergency call-center dispatcher.  After being fired in early April of 2009, Ms. Felkins filed a discrimination lawsuit with the Equal Employment Opportunity Commission (EEOC) that alleged the City of Lakewood failed to accommodate for her disability of avascular necrosis.

The City responded that Ms. Felkins had failed to demonstrate that she had a disability that qualified her for a claim under the Americans with Disabilities Act (ADA).  Arguing that Ms. Felkins had not provided documentation or testimony from a medical expert as is required by the ADA, Lakewood attorneys requested the case be dismissed.  The trial court agreed with the City and dismissed the claim because Ms. Felkins’s only proof of her disability was her own testimony, which was not sufficient to prove that her avascular necrosis was the cause of the injuries that kept her from working.

10th Circuit Requires Expert to Prove Medical Condition in ADA Case

On appeal, the 10th Circuit affirmed the trial court’s dismissal after finding that Ms. Felkins’s own testimony that her avascular necrosis caused her injuries was insufficient to prove an ADA claim.  A necessary component to winning an ADA lawsuit is demonstrating the existence of a physical or mental impairment that “substantially limits one or more major activities.”  Throughout her complaint, Ms. Felkins argued that her avascular necrosis created abnormal cell growth and blood flow that prevented her from lifting, walking, and standing normally, and, most importantly to her lawsuit, caused her a long-term injury that kept her away from her job.

Despite repeated insistence that her avascular necrosis led to her medical impairment, Ms. Felkins did not provide any professional medical evidence from an expert witness that the condition affected her major life activities.  Citing relevant case law, the 10th Circuit opinion found the Plaintiff’s allegations that she suffered from an ADA qualifying impairment unconvincing due to lack of an expert.  Writing, “[W]here injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, they must be proved by the testimony of medical experts,” the Court pointed to the need for an expert to verify Ms. Felkins’s claims that her avascular necrosis caused her injury.

Without an expert witness proving her condition caused limitations that the City of Lakewood needed to consider, the 10th Circuit could not allow the case to proceed on Ms. Felkins’s personal testimony alone.  The case serves as a reminder that, while there is a place for lay-testimony, the word of an expert witness is required when medical conditions are the center of debate in ADA claims.

Medical Expert Witnesses in ADA Claims

While lay-testimony such as Ms. Felkins’s declarations is admissible to describe symptoms of a disease or medical impairment, the 10th Circuit reminded plaintiffs that an expert witness is required to not only diagnose a medical condition but also identify the illness as a cause of limitation on major life activities.  Although the ADA was amended in 2008 to loosen the burden of proving the existence of an ADA qualifying injury, the 10th Circuit found that plaintiffs are still required to connect symptoms and other evidence of impaired life activity to a diagnosed medical condition.

In this case, Ms. Felkins case failed because she could not demonstrate that her alleged avascular necrosis caused her physical limitation.  Without evidence of the necessary cause, she could not demonstrate that she qualified for an ADA claim.  Plaintiffs reading the Felkins case can note that a medical expert witness should be part of any ADA claim in order to connect a diagnosed condition to limitations that require accommodation by employers.

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Iowa Supreme Court Overturns Child Abuse Convictions Due to Expert Testimony

Earlier this month, the Supreme Court of Iowa issued a ruling in three recent appeals of child sex abuse convictions that limited the extent of permissible expert witness testimony during trial.  According to the Iowa justices, sexual abuse expert witnesses can explain the symptoms of sex abuse to jurors but are not permitted to opine on whether or not the alleged child victim actually exhibited them.

Three Sexual Abuse Convictions Appealed to Iowa Supreme Court

In early December, the Iowa Supreme Court granted retrials to three alleged abusers in separate sexual abuse cases because prosecutor expert witnesses went too far with their testimony.  Each case prosecuted men for allegedly abusing young girls who were in their own family, and each featured an expert sexual abuse witness to help jurors determine whether or not the alleged abuse occurred.  A therapist, doctor, and forensic interviewer provided testimony to jurors that identified the symptoms of sexual abuse and then went on to identify observed behavior in the alleged victim.

According to one expert an alleged victim’s “demeanor was completely consistent with a child who has been traumatized, particularly multiple times.”  Another expert testified that during her work with the child in her case she, “observed some ‘telltale’ physical manifestations [of abuse] such as dressing in layers, cutting hair, dressing ‘very boyish,’ and reacting to triggers.”  With help from these comments and additional expert witness testimony that similarly connected the alleged victim’s behavior to symptoms of child abuse, prosecutors were able to earn convictions in all three cases.

During trial, defense attorneys attempted unsuccessfully to prevent the expert witnesses from being allowed to testify about specific behavior indicative of child abuse, but all three defendants found more success on appeal.

Iowa Supreme Court Overturns Child Abuse Convictions due to Expert Testimony

Citing Iowa case law, which prohibits expert witnesses from testifying to matters of fact, a unanimous Iowa Supreme Court decision found that all three sex abuse cases had improperly featured extensive expert testimony.  According to Iowa law, expert witnesses are permitted to explain symptoms of recognized psychological syndromes generally, but cannot speak to the facts of the case.  Additional fact witnesses are required to connect the general principles discussed during expert testimony to the specific facts at issue during trial.

In these cases, fact witnesses would consist of individuals who observed the specific behavior of the alleged child victim.  According to the Iowa Court, only fact witnesses who had seen the alleged victims after the claimed abuse could speak to their behavior, and it was up to the jury to determine whether or not that behavior matched the symptoms of child abuse explained by the experts earlier in the trial.  Although the distinction between permissible and impermissible expert testimony is a fine line, it is an important one that preserves the role of juries as ultimate finders of fact.

Limitations on Expert Witness Testimony Reinforce Role of Jury

Criminal and civil juries are responsible for examining the available evidence and making the ultimate decision on the outcome based on how the facts of the case align.  By having expert witnesses tell jurors that an alleged victim suffers from symptoms of child abuse, courts risk taking the issue of fact away from jurors because rather than determine whether or not the evidence supports a finding of abuse, jurors can easily be swayed by an expert’s own interpretation of the case.  Although the Iowa Supreme Court noted that expert witnesses may connect an alleged victim’s behavior to the symptoms of child abuse if the defense first argues the contrary, the state’s highest court reminded prosecutors that experts are not permitted to testify about their interpretation of relevant facts.

While the Court unanimously found the expert witness testimony to cross the line of permissible testimony, two of the seven justices dissented from the majority’s decision to overturn the convictions.  Saying the impermissible expert testimony did not significantly impact the conviction, the dissenting justices argued the Court should not have granted new trials.  However, the majority opinion disagreed and determined that when the experts took on the role of factual interpretation, jurors were influenced in such a way that the outcomes were tainted.  New trials will be held in all three cases.

 

Car Accident Reconstruction Expert Faces Aggressive Challenge from Prosecutor

A vehicular manslaughter trial in Ithaca, New York turned heated last week when the lead prosecutor accused the defendant’s car accident expert witness of being a “mercenary” willing to testify to anything for money.  While every expert witness testifying at trial does so for money, the contentious back-and-forth highlighted concerns that some experts prioritize financial interests over relevant testimony.

Vehicular Manslaughter Case Relies on Accident Reconstruction Analysis

Last New Year’s Eve, a Chevrolet Monte Carlo driven by 19-year-old James Crosby collided with a Jeep driven by Samantha Aarnio.  The collision killed one passenger in each vehicle: Kathy Lattimore, Aarnio’s 67-year-old mother-in-law, and Derek Nichols, Crosby’s 20-year-old friend, and, after investigation, Crosby was charged with vehicular manslaughter for both deaths.  He is also charged with second-degree assault, third-degree assault, second-degree reckless endangerment and reckless driving for his role in causing the accident.  Judge John Rowley is presiding over a bench trial that will not use a jury to come to a verdict, and prosecutors are asking that Crosby be found guilty and sentenced to 4 – 12 years in jail.

In his defense, Crosby’s attorneys have taken issue with the police report detailing the investigation.  The results of the police report suggest that Crosby’s Monte Carlo was traveling at a speed between 84 – 91 mph before colliding with Aarnio’s Jeep, which was traveling at 45 mph.  Pointing to this data, prosecutors have argued that Crosby was clearly in violation of traffic laws and was moving at such an unsafe speed that he was acting recklessly in such a way that he should have known would endanger the lives of others.  Concluding that his clearly reckless actions were the direct cause of two deaths in the resulting accident, prosecutors relied on the accident diagnosis found in the police report to convince Judge Rowley that Crosby is guilty of two counts manslaughter.

William Fischer, a crash reconstruction expert witness hired by the defense, disagreed with the information found in the report and took police investigator’s to task for shoddy and incomplete analysis of the accident.

Defense Car Accident Expert Testifies During Manslaughter Trial

Mr. Fischer began his testimony by informing the Court that his independent investigation concluded that Crosby was traveling at 55 mph – a speed much closer to the posted speed limit.  Further, Fischer testified that Aarnio’s Jeep was moving much slower than 45 mph, meaning that the accident happened at a far lesser speed than reported by police.  Fischer directly contradicted the police report’s analysis of the speed of the accident, allowing defense attorneys to argue that Crosby was not driving at a negligently high rate of speed prior to the crash.

Additionally, Mr. Fischer found fault in the police investigation because officers declined to perform skid tests at the scene.  Saying that police need to gather an estimation of the coefficient of friction in order to get accurate speed tests, Fischer called the investigation incomplete and prone to error.  Calling the police’s tactics a “bastardized” test of determining speed, the defense expert witness claimed that his calculations, which were more complete, represented a reliable estimate of the speed of the two vehicles.

Fischer also testified that a lack of deformity in the filaments of the rear taillights suggest that Aarnio’s Jeep may not have had its lights on at the time of the crash – a relevant fact considering the accident happened 19 minutes after sunset.  Taken together, Fischer’s car accident reconstruction expert testimony targeted potential flaws in the prosecution’s analysis which suggested Crosby was driving negligently at the time of the accident.  By calling Fisher, Crosby’s defense team attempted to introduce reasonable doubt to the question of his negligence, hoping to convince Judge Rowley that manslaughter is not an appropriate charge.

Prosecutors Challenge Defense Car Expert Witness

In response to Fischer’s criticism of the police accident reconstruction, lead prosecutor Eliza Filipowski challenged the car accident expert on a number of points.  First, Filipowski pointed out that Fischer has been openly critical of skid tests, raising questions about why he condemned the police for not using one in their calculation of Crosby’s speed.  Although Fischer responded that any test of friction would be better than none, Filipowski followed her line of questioning by contrasting the techniques used by police investigators, which relied on electronic optical measurements of speed, to Fischer’s calculations of speed, which featured an inaccuracy that the defense expert could not adequately explain.

Finally, Filipowski attacked Fisher’s credentials, which have not been updated recently, and challenged his history of testifying only for defendants in car accident reconstruction cases.  Pointing out that Fischer, who was paid $12,000 for his expert witness testimony, failed to provide a complete or consistent critique of police tactics or an accurate reconstruction method, Filipowski attacked the reliability and credibility of the defense expert in an effort to promote the state’s case for a manslaughter conviction.

Expert Opinion on Probable Cause in Michael Brown and Eric Garner Deaths

The recent deaths of Michael Brown in Ferguson, Missouri and Eric Garner in New York have alerted us to the concept of probable cause and how it is used by grand juries to reach a decision as to whether or not a crime was committed. In the cases of Michael Brown and Eric Garner, the alleged crimes were associated with excessive force and racial discrimination charges against police officers who were acting under color of authority. In both of the above situations, minor offenses had been committed, but both Michael and Eric ended up dead as police officers tried to interview or arrest them for alleged criminal activity.

Those of us who participate in the criminal justice system are familiar with the term probable cause.  If you do drunk driving cases, you know that probable cause is the standard used by police officers to stop citizens who they suspect are driving under the influence of drugs or alcohol, and deprive those drivers of their liberty (to continue driving). Probable cause is also the standard used by grand juries to determine whether or not a crime was committed and an indictment for that crime is indicated. So, probable cause is a threshold standard for initiating government or police actions against the citizen.

Probable cause has its origin in the Fourth Amendment to the Constitution of the United States. The Fourth Amendment deals with unreasonable searches and seizures, and reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Definition of Probable Cause

But what is probable cause, and how is it defined? The Fourth Amendment does not define it, it says only that probable cause is the standard required by law enforcement to initiate a search or seizure, and, as we have recently learned, the standard for a grand jury to return an indictment.

In researching the definition of probable cause, the one thing that comes across very plainly is that the courts are not enthusiastic about defining it. This is because a precise definition would never cover all of the many different circumstances a police officer encounters in the field on a daily basis. Therefore, the precise amount of evidence required to establish probable cause often depends on the circumstances of the case. A frequent example would involve a police officer who stops a driver for going through a red light. Normally, going through a red light would not provide the police officer with an adequate basis (probable cause) to search the driver and the driver’s vehicle. However, if the police officer notices that the driver’s eyes are red, that his/her speech is impaired, and that the driver is having difficulty exiting the vehicle and standing, the officer would have sufficient probable cause to detain the driver, question him/her and possibly search the driver and the vehicle for drugs.

Probable cause has to consist of more than just a hunch on the part of the police officer, but certainly less evidence than would be required to convict a citizen in the criminal courts. Although probable cause is often a subjective determination, most definitions that have appeared in the case law contain language similar to the following:

Probable cause exists with the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, and are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.  (See: Brinegar v. United States, 338 US 160 (1949)). So, like many other concepts in the law, the need for reasonableness and trustworthiness are important in forming probable cause.

Probable Cause and Michael Brown’s Death

How does the definition of probable cause enter into the grand juries’ decisions in the Michael Brown and Eric Garner deaths?

One factor that must be borne in mind about grand jury deliberations is that presentations to the grand jury are made only by prosecutors, and the defense has no say in what is presented.  Prosecutors may present as much or as little evidence as they feel is necessary to persuade the grand jury to return an indictment. One must also ask, can a prosecutor who needs the assistance of a police officer to testify at trial about the culpability of the defendant, present an objective, unbiased summary of the evidence to the grand jury? The answer is that presentations to the grand jury are neither objective nor unbiased, and these presentations have no other purpose than to get the grand jury to find the existence of the necessary probable cause that a crime was committed, and return an indictment for all criminal conduct the grand jurors conclude did occur with probable cause.

The issue in the shooting of Michael Brown is:  was there probable cause sufficient to justify the use of lethal force against Michael Brown by the police officer. The evidence has centered around conflicting eyewitness testimony and the results of three autopsies. One autopsy was conducted by the state of Missouri, one autopsy was conducted by the federal government, and one autopsy was allegedly conducted by forensic pathologist, Michael Baden, M.D., who was retained by the Brown family. The word “allegedly” is used because some suspicions have arisen as to whether or not Dr. Baden actually performed the autopsy or if the autopsy was performed by a technician.

The most relevant evidence produced by any of the autopsies involved (1) the number of wounds sustained by Michael Brown, and (2) where the entrance wounds and exit wounds were located.  Identification of the entrance wounds and exit wounds would provide evidence as to whether or not Michael Brown was facing the police officer or running away from him, both of which scenarios have been offered by the fact witnesses. Many of us know that forensic evidence is a far more powerful tool than testimony from fact witnesses, who frequently report what they think they saw rather than what actually occurred, leading to conflicting testimony in controversy, which confounds the final assessment of what actually transpired at the time of the incident under discussion.

In the Michael Brown case, there is evidence to indicate that the altercation between Brown and the police officer began in the police officer’s cruiser. Allegedly, Michael Brown’s blood was found on the officer’s gun and the officer was found to have a bruise on his face, consistent with his testimony that Brown had assaulted him. Entry wounds on the hands and arms of Michael Brown were not dispositive in determining whether or not Michael had his hands up in the “I surrender” position, which has spawned the “don’t shoot” motto that has become associated with Michael’s death, and the movement to support indictment of the police officer who shot him. However, the fact that the grand jury failed to indict the officer indicates that the grand jury did not find probable cause to conclude that the officer shot Michael Brown without an adequate basis to do so. For now, this means that they will not be a criminal trial in state court against the police officer for any type of homicide, such as murder, manslaughter, or negligent homicide. Most likely, these issues will be litigated in civil wrongful death cases where the standard of proof will be preponderance of evidence, or more likely than not, rather than the criminal standard of beyond a reasonable doubt. In such cases, the family only can hope to obtain a monetary damage award from either the police officer himself, the municipality that employed him, or both, depending upon who was sued. Certainly, the police officer does not have to fear going to prison as a result of a civil case, but a large damage award is certainly possible.

Personally, the evidence is equally strong for both the Brown family and the police officer, and that it will be quite difficult for the Brown family to prevail in a civil wrongful death action.

The other alternative open to the Brown family would be to file a federal discrimination case based on racial factors. Such a case would allege that Brown’s death was somehow associated with the fact that he was Afro-American and the police officer was Caucasian. However, on a superficial analysis, race did not appear to be a factor in Brown’s death and the major provocation for the shooting appeared to be related to the police officer’s perception and belief that Brown was coming toward him in a menacing and assaultive manner which caused the police officer to be in fear for his safety and life. Under such circumstances, the police officer believed lethal force was appropriate and kept shooting at Michael Brown until Brown fell to the ground, dead.

Probable Cause and Eric Garner’s Death

The Eric Garner case has many more aspects of law associated with it, then Michael Brown’s case, and in my opinion, is easier to analyze although the issues are more complicated and complex. First of all, with Eric Garner, I’m not sure what he was arrested for and I’m not sure that probable cause was established.

It was alleged in the press that Eric Garner had been arrested on numerous occasions for selling cigarettes without a tax stamp on them. However, from the videos of his encounter with the police, I did not see any cigarettes in his hands at the time of the altercation. That does not mean he did not have them in his possession, it just means that I could not see them from the video.  At some point in time, the police officers concluded that they had sufficient probable cause to place him under arrest and began moving towards him to handcuff him and take him into custody. One police officer sort of snuck up on them from behind, wrapped his arm around his arm around his neck, and attempted to pull him to the ground so they could handcuff him. When the police officer put his arm around Eric ‘s neck, it was not clear as to whether or not the police officer’s arm was cutting off Eric’s air supply or pressing on his carotid artery or jugular vein. Either way, Eric was pulled to the ground and put in the prone (face down) position, at which time the other officers began yelling “put your hands behind your back” and one or two of them put a knee to his back, or got on top of him and weighed him down onto the hard sidewalk. At that point in time, Eric began to yell “I can’t breathe” which he repeated several times, which became the mantra for Eric’s death as “don’t shoot” was for Michael Brown death.

A lot of media time has been directed at whether or not Eric actually was being choked or just wrestled to the ground. One of the reasons for this is because Eric was still able to call out “I can’t breathe” which indicates that Eric was still able to move air in and out of his lungs. From the videos and my knowledge of respiratory physiology, it appears that what caused Eric to stop breathing was the fact that his chest was being pushed into the hard sidewalk and he was unable to inhale and exhale, due to the weight of the officers on his back which inhibited chest excursion. This is analogous to a boa constrictor wrapping itself around you and tightening its grip around your chest every time you exhale. At some point in time, you can no longer inhale or exhale and you suffocate from lack of oxygen.

This brings up the second stage of what occurred during Eric’s death. Once he stopped breathing and the officers recognize that, they failed to do any type of CPR to restore his breathing. They did call for a paramedic or an EMS technician who was shown in the video to be looking at Eric, but not administering any type of first aid, CPR or assistance in restoring breathing. This brings up a negligence claim and a claim that the police officers failed to care for Eric while he was under arrest and in their care. When you are arrested, law enforcement has a duty to care for you and not allow you to be subject to injury or death. Probably the best-known deviation from that duty to care occurred when Jack Ruby was able to shoot Sirhan Sirhan, after he had been arrested for the shooting of President Kennedy.

So, in the case of Eric Garner, the issues appear to start with (1) what crime did Eric commit, (2) was there adequate probable cause for the officers to place him under arrest in the first place, (3) did the officers commit a negligent homicide by putting him in the prone position, and piling on his back, and (4) did they fail to care for him when he repeatedly called out, “I can’t breathe”? Next, there is the question of whether or not the EMS technician acted negligently by not taking any action to get Eric breathing again. However, by this time Eric was dead, and there may not have been anything s/he could have done to reverse that.

Inmate’s Family Sues Ohio Expert Witness over Botched Execution

Family members of an Ohio inmate executed by the state have sued a lethal injection expert witness for failing to recognize that the controversial two-drug technique would cause suffering.  Claiming that the expert helped create an inmate execution policy that he knew would be painful, the plaintiffs are seeking financial compensation for its use in a death sentence carried out in January of this year.

Ohio Conducts Review after Lengthy Execution

In January, Ohio inmate Dennis McGuire was executed for the 1989 rape and stabbing death of Joy Stewart, a 22-year old pregnant woman.  McGuire’s execution, the first to be conducted by an untried two-drug combination, made headlines after he took nearly ½ an hour to die.  According to witnesses, the convicted killer gasped for air and writhed in pain for 15 minutes, leading attorneys representing McGuire and his family to call the new method of execution a “failed experiment” and request official review of the process.

In a report relying on the opinion of an anesthesiologist who reviewed the witness accounts and McGuire’s medical records, Ohio officials declared that the condemned inmate did not suffer during his execution.  Finding that the execution was humane despite the apparent hang-ups, the report read, “The two drugs used in the McGuire execution had their intended effect and that McGuire did not experience any pain or distress.  The bodily movements that were observed were consistent with the effects of the drugs, his obesity and other body characteristics, and involuntary muscle contractions associated with the ending of respiratory function. There is no evidence that McGuire experienced any pain, distress or anxiety.”

Despite the findings, the Ohio Department of Corrections announced that it would increase the dosages of both drugs in its two-drug system, and state officials have postponed a second planned execution indefinitely.  Calling the state’s actions a tacit admission that the execution did not transpire as planned, attorneys for McGuire’s family filed a lawsuit against the state and the expert witness who helped develop the new two-drug execution procedure.

Inmate’s Family Files Lawsuit against Death Penalty Expert Witness

In a recently filed lawsuit, family members of Dennis McGuire claimed that a former expert witness who helped Ohio construct its two-drug cocktail knew, or should have known, the procedure would cause unreasonable pain and suffering when used during executions.  Dr. Mark Dershwitz, who resigned as a death penalty expert witness citing concerns about his professional reputation, worked closely with Ohio officials to help create the state’s new lethal injection process.  Dr. Dershwitz is an anesthesiologist and pharmacologist working for the University of Massachusetts who has been a public proponent of the two-drug method as a new lethal injection policy, and he contracted as an expert witness with Ohio prior to McGuire’s death in developing the procedure for use in state executions.

The lawsuit against Dr. Dershwitz and the drugs’ distributors claims that the expert “knew or should have known that when used in executions, Hydromorphone and Midazolam would cause unnecessary and extreme pain and suffering during the execution process.”  Pointing to the McGuire ordeal, plaintiffs claim that he suffered needlessly because of the experimental procedure, and Dr. Dershwitz shares responsibility for encouraging the state to switch to the two-drug method.  Although Dershwitz did not testify at a trial, his work was instrumental in the adoption and use of a two-drug cocktail that, according to lawsuit, he knew would cause pain and suffering in violation of the Constitutional protection against cruel and unusual punishment.

Dr. Dershwitz, who resigned in April after continuing to consult with Ohio prison officials following McGuire’s execution, has not responded to the federal lawsuit.

Canine Expert Witness to Testify in Negligent Supervision of a Child Case

A judge in Iowa has approved the request of a woman charged with the death of a 4-year-old child who was attacked by a dog while under her care to call a canine behavior expert witness to testify that the defendant could not have known the attack was likely to occur. The judge’s decision granted a pre-trial motion for the criminal case that is scheduled to begin in January, bringing to a close an investigation that began after the deadly attack last April.

Child Killed by Dog While Under Babysitter’s Care

Four-year-old Jordyn Arndt died from injuries suffered during a dog attack that occurred in the home of her babysitter, 24-year-old Jena Marie Wright. Wright was charged with taking care of Jordyn and her 7-year-old brother, Aden, at her home in Prairie City, Iowa on in April of 2013. While at the home, Jordyn was attacked by Jena’s dog, Brutus, an American Staffordshire Terrier. Brutus bit Jordyn in the head and neck area, causing injuries that resulted in the child’s death at a Des Moines hospital the following day.

Jena Wright was arrested and charged with child endangerment causing death as well as neglect or abandonment of a dependent person – two federal crimes that could result in a 35-year prison sentence if she is convicted. Wright is also charged with assault on a peace officer causing bodily injury and interference with official acts for allegedly kicking the arresting officer in the chest during her arrest after the attack.

In order for the prosecution to prove that Wright committed child endangerment and neglect of a dependent person, the state must demonstrate beyond a reasonable doubt that the defendant knew, or should have known, that Brutus had a propensity for aggression that could lead to him attacking Jordyn. As part of her defense, Wright’s attorneys sought the testimony of a canine expert witness to explain to jurors that she might not have known that her animal would become aggressive towards a young child.

Canine Expert Witness Called to Testify About Knowledge of Dog’s Capacity for Violence

Ron Berman, a California based forensics consultant who is an expert in canine temperament, bites, and behavior, has been chosen by Wright’s defense team to take the stand and bolster their claim that the defendant could not have known Brutus would attack Jordyn. Berman was chosen as one of four canine expert witnesses in the United States who has the experience with evaluating dog behavior that qualifies him to offer expert testimony on the subject during a criminal trial. Although the exact nature of Berman’s testimony is unknown, Wright’s attorneys argued his contribution to the trial was relevant because it would support the defense’s argument that the babysitter did not know the dog was violent when she made the decision to leave the children unattended with the animal.

Prosecutors objected to the use of Berman, arguing that his expert testimony was not relevant and would only serve to distract the jury from the important question of whether or not Wright acted negligently by leaving young children alone with a dog. Judge Richard Clogg, however, granted the defense team’s motion because he felt that the canine expert testimony would ensure that Wright received a fair trial that debated all relevant issues, including questions about whether or not she could have known that Brutus had a propensity for violence. As part of his ruling, Judge Clogg agreed to allot $18,000 in public funds to pay for Berman’s expert contribution to the proceedings.

Expert Witnesses and Relevance

Modern standards for admitting expert witness testimony require judges to make determinations about whether or not the proposed contribution would be relevant. Relevant testimony is testimony that informs the court whether the occurrence of a particular fact, or set of facts, is more or less likely, and if an expert is not adding information necessary or helpful to the jury’s determination of whether or not an important fact is true, or is providing testimony that could unfairly prejudice jurors in favor of one side over the other, then a judge could disallow the expert from participating at trial.

If, on the other hand, an expert’s proposed testimony will help jurors determine whether or not the facts presented at trial occurred in such a way that suggests the defendant’s guilt or innocence, the testimony will be relevant. In this case, Mr. Berman’s expert testimony on canine behavior will help jurors determine whether or not the prosecution’s allegation that Wright knew, or should have known, is true. Berman is speaking to a critical alleged fact – that Wright was aware that it was not safe to leave Brutus with two young children – and, as such, his contribution to the trial is relevant.