Category Archives: ExpertWitness

Book Questions Science of Criminal Investigation

A new book questions the science behind criminal investigations by examining a 27-year-old arson and murder case.

Jo Ann Parks’ Conviction

On April 9, 1989, the garage apartment of Jo Ann Parks went up in flames. Parks escaped, but her three young children were still inside. She ran next door to her neighbor’s house to call the police. Investigators initially believed that the fire was accidental, but eventually concluded that it was arson. Parks was accused of arson and the triple murder of her children.

At Parks’ trial, fire investigators testified that the fire was caused by human origin. One investigator testified that he believed that there had been two fires, one that was started in the living room and one that started in the children’s bedroom. Two points of origin meant that the fire was caused by arson because an accidental fire would only have one point of origin. Investigators also testified that they believed that one of the children had been trapped in a closet that had a door that was blocked by a laundry hamper.

Parks was convicted of first-degree murder and sentenced to life without the possibility of parole.

Humes’ Book

On January 8, 2019, Edward Humes published Burned: A Story of Murder and a Crime That Wasn’t.  In his book, Humes recounts the story of the fire and its repercussions. Humes explains how on the night of the fire, Parks asked a police officer repeatedly if her children were okay and then complied with the request that she wait at a police station a few blocks away. Some of the jurors said that Parks’ acquiescence with that request without demanding to see her children was the deciding factor in their vote to convict her of arson.

Humes examined the way that evidence was collected in Parks’ case. Humes explained that the arson experts who testified at Parks’ trail relied on their mapping of the fire’s path. Humes explained that the arson experts did not fully understand flashover, which happens when a fire gets so hot that “every flammable surface in the room not already burning will ignite in rapid succession.”

To illustrate flashover, Humes explained an experiment that was conducted at the Federal Law Enforcement Training Center in Glynco, Georgia the same year that Parks’ trial took place. The experimenters set two rooms on fire and asked veteran arson investigators to examine each room and choose the quadrant of the room where the fire had started. While the participants thought that this would be an easy task, they chose the wrong quadrant more than 90 percent of the time. Humes explained that this and other similar experiments showed that flashovers made determining the cause of domestic fires very difficult. Despite the fact that flashover had occurred in Parks’ apartment, arson investigators testified that the burn patterns implicated Parks in the arson.

Humes notes that arson investigation is just one of many of the forensic techniques that have been recently discredited. He points to bite marks, hair and fiber comparisons, matching fingerprints, and lineups as examples of forensic investigation techniques that have been routinely discredited by later comparisons of DNA samples.

DC Police Supervisor Fired After Providing Expert Testimony in Case

A Washington, D.C. police supervisor was fired after providing expert testimony in an ACLU lawsuit.

The Searches

On September 27, 2017, Officer Sean Lojacono conducted a search of a man in Southeast Washington, D.C.. The search was captured on a cell phone video that went viral online after it was posted on YouTube. The video showed Lojacono aggressively and intrusively searching M.B. Cottingham. The search led to an ACLU lawsuit that accused Lojacono of “repeatedly jamming one or more fingers into (his) anal cavity and grabbing his genitalia … without a warrant, probable cause, reasonable suspicion, or consent.”  The ACLU lawsuit was settled out of court.

A few hours after the search of Cottingham, Officer Lojacono conducted a similar search, which was recorded by two police body cameras. In the footage, Lojacono is seen searching a man in the same way that he searched Cottingham. The man in the video reportedly says “you’re sticking your fingers in my ass” and that Lojacono is “violating him as a man.”  The DC Police department fired Officer Lojacono because of the way that this search was conducted.

Lojacono appealed his firing. He claimed that he knew that the searches violated his training and the general orders of the DC Metropolitan Police Department, but said that veteran officers instructed him to conduct searches in this manner. Lojacono testified that they way he conducted the body searches on September 27, 2017 was a common practice and that he had conducted hundreds of similar searches during his 5-year career.

The Expert Testimony

J.J. Brennan is a Washington, D.C. police supervisor who reviewed the video footage and provided expert witness testimony at Officer Lojacono’s hearing. Brennan testified that Lojacono’s search met the general order guidelines of the police department.

Lojacono’s attorney Marc Wilhite said, “J.J. Brennan wanted to make it very very clear to the panel that this is what is allowed under the general orders. This is what is actually taught and instructed for officers because you have safety as well not only because you could have contraband there but you could also have weapons.”

Brennan’s testimony was contradicted by three other police officers, including his commander.

The Firing

The day after Brennan’s testimony, he was given a letter of termination. The letter of termination stated that his commander had lost confidence in Brennan’s ability to manage members of the major narcotics unit following his trial testimony. The letter quoted from Brennan’s trial testimony, where he stated that you follow the rules and general orders of the police department “when you can” and “I always told people that worked for me, don’t be afraid to go up in the crotch.”

Prior to his firing, Brennan had spent 43 years on the force as a sergeant.  Brennan was currently serving as a civilian supervisor at the time of his firing.

Brennan spoke with FOX 5 news after his firing, saying that he was “very bitter and angry” over the firing. The people he searched might also be bitter and angry about the violations of their constitutional rights.

Expert Psychiatrist Testifies in Murder Trial

An expert psychiatrist has testified that a murder defendant had a diminished ability to premeditate or deliberate the killing of his wife due to a dissociative episode.

The Crime

On December 5, 2013, Cynthia Grantham received a call from her brother-in-law, Joseph Levi Graham. Grantham was crying and said, “Cynthia, have you heard?”  Grantham told Cynthia that his wife, Constance, was dead. When Cynthia asked what happened, Grantham told her, “I shot her.  I shot her in the head.” Grantham told Cynthia to tell his brother not to come to his house because he had turned on the gas, that they would never see him again, and that he loved her.

Cynthia and her husband went to the nearby house of the sheriff, Maynard Reid. Reid sent a deputy to the Grantham house to do a welfare check.

The body of Constance Grantham was found with two gunshot wounds to the head and one gunshot wound to the chest. Joseph Levi Grantham was charged with first-degree murder in connection with his wife’s death. If convicted, he faces a maximum penalty of life in prison without the possibility of parole.

Expert Testimony

Grantham’s defense attorney retained Dr. George Corvin to testify as an expert in forensic psychiatry. Dr. Corvin has been practicing general and forensic psychiatry since the early 1990s.

Dr. Corvin testified that he has spent about eight hours with Grantham over the past five years. He interviewed Grantham in June 2014, April 2015, May 2018, and October 2018. Dr. Corvin testified that he evaluated Grantham’s level of competency to stand trial. Dr. Corvin opined that Grantham had the capacity to do and understand what was needed of him to stand trial.

Dr. Corvin also evaluated Grantham’s mental state on the night that he killed his wife. To reach his conclusions about Grantham’s mental state, Dr. Corvin utilized Grantham’s first interview with detectives, his wife’s autopsy and medical records, Grantham’s medical records and workers compensation records, transcripts of interviews with Grantham’s family, photo of the victim’s autopsy and the Grantham’s home, and a video of Grantham’s first appearance in court.

Dr. Corvin concluded that Grantham was “very simple” and “marginally educated.” Dr. Corvin testified that Grantham had “seemed so limited” that he wondered if he was intellectually disabled. Grantham was given a Wechsler IQ test, which is designed to measure intelligence and cognitive ability in adults and older adolescents. Grantham scored a 94, which is within the range of average.

Dr. Corvin testified that, although Grantham’s Wechsler score indicated that Grantham’s innate intelligence was okay, his “fund of knowledge” was limited. According to Dr. Corvin, Grantham’s leaving school in the eighth grade combined with his life experiences caused Grantham to have a childlike view of that world that caused “his ability to understand and react well to stresses” to be “very limited.”

Dr. Corvin concluded that Grantham had an acute dissociative reaction to stressful events, which can lead to the experience of depersonalization and derealization. He opined that Grantham suffers from a schizotypal personality disorder, which can cause odd beliefs, magical thinking, bodily illusions, eccentric/peculiar behavior and social anxiety. Dr. Corvin stated that Grantham’s ability to premeditate or deliberate killing his wife was “diminished and complicated” due to a “period of dissociation.”

Verdict

The jury apparently rejected Dr. Corvin’s testimony. Gratham was found guilty of first-degree murder and was sentenced to life imprisonment.

Forensic Expert Helps Exonerate Innocent Man Convicted Because of Discredited Bitemark Evidence

Steven Chaney was added to the National List of Exonerations after the Texas Court of Criminal Appeals declared that he was “actually innocent” of two murders. Chaney served 31 years in prison based largely on discredited bitemark evidence.

Chaney’s conviction was initially affirmed by an appellate court that said no more than this about the bitemark evidence: “Medical testimony strongly indicated that appellant inflicted the bitemarks on the victim’s forearm.”  The decision reflects the unfortunate willingness of judges to accept forensic evidence offered by prosecutors at face value.

Years later, Chaney’s defense team relied on expert testimony to free him from his unjust conviction and sentence. The Texas Court of Criminal Appeals agreed that Chaney is innocent and vacated his conviction, giving long-delayed justice to Chaney.

Police Investigation

John and Sally Sweek were stabbed to death in 1987. Oddly, the couple who observed the Sweeks’ bodies through their apartment window called a number of people to report their discovery but waited nearly two hours to call the police.

Crime scene investigators found shoeprints, boot prints, and multiple bloody fingerprints. They also found Chaney’s fingerprint on a wall near the kitchen, but there was no blood on that print. Investigators also found an apparent bitemark on John’s arm.

Investigators quickly learned that the Sweeks were drug dealers. Juan Gonzalez, the Sweeks’ supplier, was identified as a person of interest. The police ruled out Gonzalez without investigating his alleged connection with the “Mexican Mafia” and without determining whether his cowboy boots could have caused the boot prints at the crime scene.

The police were provided with a drug ledger that allegedly showed the names of people who owed money to the Sweeks. Chaney’s name was in that ledger, along with several other people, including members of the Sweeks’ family.

A caller who wanted to remain anonymous told the police that Chaney purchased cocaine from the Sweeks several times a week. The caller, later identified as Curtis Hilton, suggested that Chaney might have been responsible for the murder since he suddenly had money after the Sweeks died.

Police investigators eventually learned that Hilton owed Chaney money, but that motivation to frame Chaney apparently played no role in their assessment of the information he provided. They developed no evidence to corroborate the claim that Chaney had money after the murder.

After receiving that call, the police became laser-focused on proving Chaney’s guilt rather than following all the evidence and investigating other suspects. Police officers who decide to prove that their theory is correct rather than keeping an open mind are often responsible for wrongful convictions.

Chaney’s Trials

Hilton gave conflicting testimony before and during Chaney’s first trial. The court ultimately declared a mistrial because the prosecution had failed to disclose Hilton’s prior statements to the defense. The court concluded that the police had withheld those statements from the prosecution, a finding that should make no difference since the prosecution has a duty to obtain all exculpatory evidence in the possession of police officers.

The prosecution immediately recharged Chaney, although with only one of the two murders. Hilton again testified, and again told a different story about his interactions with Chaney.

Testimony suggested that some of the shoeprints at the crime scene “might have” been left by Chaney because the prints were made by tennis shoes and Chaney, like most people, owned tennis shoes. A forensic serologist who tested Chaney’s shoes found an “unknown substance” that “might have been” blood. The serologist admitted that the test she used can return false positives and that, if the substance was blood, she could not say that it was human blood.

The prosecution offered evidence of Chaney’s partial thumbprint on a wall, which was about three feet above the floor. The prosecutor speculated that Chaney left the print when he bent over the dead bodies. The defense noted that Chaney had been in the apartment several times and may have left the print while bending over to pet the Sweeks’ dog. The defense also argued that the prosecution failed to identify multiple bloody fingerprints that were likely left by the killer.

The investigating detective testified that he interviewed Chaney, that Chaney asked him at the beginning of the interview whether the detective wanted to talk about the murder, and that Chaney said without being prompted that he had an alibi. Since the murder was highly publicized and Chaney had purchased cocaine from the Sweeks on several occasions, it is not surprising that Chaney would assume that the police wanted to ask him about the murder. Chaney did, in fact, call a number of witnesses who accounted for his whereabouts throughout the day of the murder.

Bitemark Evidence

The prosecution bolstered its remarkably weak case with evidence of the bitemark on the victim’s arm. A forensic odontologist, Dr. James Hales, testified that the bite mark was a “perfect match” with Chaney’s teeth, that there were no inconsistencies, and that the odds of any other person leaving the bitemark were one in a million. He also testified that the bitemark was made at the time of the murder. All of those opinions were utter nonsense, but the evidence was damning because it placed Chaney at the scene when the victims were murdered.

A second forensic odontologist, Dr. Homer Campbell, testified that the bitemark actually consisted of four separate bites, and that Chaney was the one who bit the victim. In its closing arguments, the prosecution emphasized that the testimony of Drs. Hales and Campbell provided the strongest evidence of Chaney’s guilt.

Habeas Proceedings

Decades after his conviction was affirmed on appeal, Chaney sought habeas corpus, a procedure that can be used to challenge the validity of convictions that have been finalized. His petition was based in part on a 2013 Texas law that allows convicted defendants to challenge convictions based on an intervening change in scientific understanding of the evidence that the prosecution relied upon in support of a conviction.

The habeas court recognized several important changes in the science of bitemarks, including:

  • Forensic odontologists no longer believe it is acceptable to conclude that a bite “matches” a suspect’s teeth when the number of people who might have caused the bite is unknown.
  • Forensic odontologists no longer use the word “biter” to describe a suspect.
  • The expert opinions that Chaney made the bitemarks would not be offered by a well-trained forensic odontologist today.

The habeas court based those findings on unrefuted expert testimony and on guidelines published by the American Board of Forensic Odontology. The Board became more professional in its approach to science after bitemark evidence was sharply criticized by the President’s Council of Advisors on Science and Technology and by a National Academy of Sciences report.

Apart from the difficulty of making a precise measurement of bitemarks, given that skin can expand or contract in the area of a bite, unscrupulous prosecution “experts” sometimes stretched or squeezed skin until the bite took a form that they could identify as a match. Even ethical experts at the time of Chaney’s conviction failed to acknowledge that their methods were unsupported by peer-reviewed research.

Bitemark evidence is so unreliable that the Texas Forensic Science Commission voted in 2013 to recommend that its use in Texas criminal prosecutions be suspended. The opinion of the Texas Court of Criminal Appeals in Chaney’s case summarizes the current state of bitemark science and explains how studies have demonstrated its unreliability.

Many forensic experts who testified in the past subsequently revised their opinions about the reliability of bitemark comparisons they made. To his credit, Dr. Hales acknowledged that his opinions were probably wrong and that the bitemark could have occurred two or three days before the victim’s death. And to its credit, the State conceded that its bitemark evidence proved nothing.

During its closing argument in Chaney’s trial, the prosecutor admitted that he would not have pursued an indictment against Chaney in the absence of bitemark evidence. The Court of Criminal Appeals had no difficulty deciding that Chaney would not have been found guilty in the absence of the unfounded bitemark testimony.

The court also agreed that Hales’ testimony that only “one in a million” individuals could have produced the bitemark on the victim’s arm was false and misleading. Hales admitted that he simply made up that testimony. Since the Constitution prohibits using a lie to convict a defendant, that admission also required Chaney’s conviction to be set aside.

Chaney Released from Prison

The Court of Criminal Appeals’ decision explores other flaws in Chaney’s conviction, including a pattern on the part of his prosecutor of concealing evidence that pointed to his innocence. In addition, DNA testing excluded Chaney as the source of the skin found under the female victim’s fingernails and of the DNA in all other testable evidence found at the crime scene.

The State’s recent investigation identified two suspects belonging to a drug cartel who probably committed the murder. Given all of the evidence, the Court of Criminal Appeals determined that Chaney is actually innocent of the murder. The court ordered his release from prison. Since he has been found innocent, he cannot be retried.

Experts Debate Whether Qualcomm Could Harm Competition

The FTC’s lawsuit against Qualcomm is awaiting a verdict, which could have a significant impact of the future of smartphones. Experts for each side have differing view on whether Qualcomm’s policies hurt competition.

Qualcomm is the world’s largest provider of mobile chips.  It created the technology that connects phones to cellular networks. Qualcomm makes a significant portion of its revenue from licensing its inventions to cellphone makers with its fee based on the value of each phone.

Qualcomm owns patents that are related to 3G, 4G, and 5G networks, which means that all cellphone makers pay Qualcomm a licensing fee, even if they do not use Qualcomm chips.

The FTC filed a lawsuit against Qualcomm in January 2017, arguing that Qualcomm maintained a monopoly and extracted high royalty fees that weakened competition. Qualcomm has denied all allegations and says that the FTC does not have any evidence of anticompetitive behavior.

The trial was held before Judge Lucy Koh in United States District Court for the Northern District of California.

FTC’s Expert Witness Testimony

The FTC retained Professor Carl Shapiro as an expert witness.  Shapiro is an industrial organization economics professor at Haas School of Business at University of California, Berkeley. He formerly held a position in the antitrust division of the Justice Department.

Shapiro analyzed Qualcomm’s market power in CDMA and premium LTE modems during the period of time between 2006-2016. According to Shapiro, three of Qualcomm’s policies gave it the market power to demand supra-FRAND royalties, or royalties that are not fair, reasonable, and non-discriminatory. These three policies were: its “no license, no chips” policy, its incentive payments to phone OEMs, and its refusal to license standard essential patents to rival chip makers.

According to Shapiro, Qualcomm is using its market power and monopoly power to extract an “unusually high amount” for royalties for patents.

Qualcomm’s Expert Witness Testimony

Qualcomm retained Tasneem Chipty as an expert. Chipty is an expert in competition and antitrust economics. Her practice focuses on competition analysis, including market definition, market power, and competitive effects of different types of conduct across a variety of industries. Chipty has previously served on the faculties of The Ohio State University, Brandeis University, and the Massachusetts Institute of Technology, where she taught courses in antitrust and regulation, industrial organization, and econometrics.

Chipty testified that “Qualcomm doesn’t have sufficient market power to coerce OEMs [handset makers] into onerous business terms that would rob them of billions of dollars.”  She noted that Qualcomm had cut its chip pricing in response to competitors hitting the market or Intel potentially winning business with Apple. Chipty noted that this behavior may have helped Qualcomm win business, but did not mean that the company was anticompetitive.

Chipty also noted that Qualcomm lost 50 points of market share in premium handsets from 2014 to 2017. Chipty addressed the FTC expert’s testimony, stating, “Shapiro has overstated Qualcomm’s market power.” Chipty opined that there’s no “evidence of consistent and unconstrained market power of the type” that would hurt competition.

Wooden Mallet and flag Of New Jersey

Judge Will Not Allow Hoarding Expert to Testify

A federal judge will not allow a hoarding expert to testify in the trial of the Orange County, New Jersey GOP Chairman who is on trial for tax evasion.

The Charges

On January 10, 2019, Orange County GOP Chairman George Gilmore was indicted on six federal tax charges. 

Gilmore was charged with one count of income tax evasion for the calendar years 2013, 2014, and 2015; two counts of filing false tax returns for calendar years 2013 and 2014; failing to collect, account for, and pay payroll taxes for two quarters in 2016; and making false statements on a 2015 loan application submitted to OceanFirst Bank.

Gilmore could face years in prison and thousands of dollars in fines if he is convicted.

The federal grand jury alleged that Gilmore spent more than $2.5 million on personal expenses while owing more than $1 million in federal taxes. Gilmore’s purchases included $440,000 in antiques, artwork, and collectibles, over $100,000 for Colorado vacations; and over $700,000 for mortgages and related expenses on five different properties that he owned.

Gilmore also borrowed more than $1.7 million from professional associates, friends, and clients from January 2014 to December 2016. Gilmore also obtained more than $572,000 from the cash-out portion of a home mortgage loan that he refinanced.

When indicted, Gilmore referred all questions to his attorney, Kevin Marino. Marino said, “George Gilmore faithfully reported every penny of his income, repeatedly expressed his intention to pay his taxes together with interest and penalties, freely conceded that he was unable to pay his taxes in a timely fashion, and shared with the government the reasons why… That is not tax evasion by anyone’s lights. We look forward to Mr. Gilmore’s full vindication at trial.”

The Proposed Hoarding Expert

Marino submitted a letter to the court on March 28 indicating that his client was acting on good-faith in his dealing with the Internal Revenue Service. He wrote that Gilmore believed that “as long as he paid his back taxes, including payroll taxes, with interest and penalties, the fact that he may have incorrectly reported some of the monies he received from his law firm, or failed to pay over all of his firm’s payroll taxes in a timely fashion, would not expose him to criminal liability.”

Marino also proposed the introduction of expert witness Dr. Steven Simring, a psychiatrist and author to testify in Gilmore’s defense. Dr. Simring submitted a report that indicated that Gimore met the criteria for hoarding disorder as described in the fifth edition of the Diagnostic and Statistical Manual of the American Psychiatric Association.

The U.S. Attorney’s office moved to exclude Dr. Simring’s testimony, noting that the doctor’s report did not explain why the alleged disorder “would cause Gilmore to pay some bills, including mortgage payments for multiple homes and credit card bills, but not others, like his federal tax bill.”

U.S. District Judge Anne E. Thompson granted the government’s motion to exclude Dr. Simring’s testimony.

Ex-Priest and Expert Loses Licenses Over Scandal

A former priest who was defrocked after allegations of child sexual abuse has also lost his licenses to practice medicine.

Sex Abuse Allegations

The Archdiocese of Kansas City, Kansas began receiving allegations of sexual abuse of minors against Reverend John H. Wisner beginning in May 2012. Reverend Wisner was immediately suspended from active ministry and law enforcement was notified. 

The archdiocese conducted an investigation and found the allegations to be credible. In November 2012, archdiocesan officials sent the results to the Vatican. 

Wisner denied that he had engaged in sexual misconduct. He was never criminally charged in connection with the allegations.

The Reverend John H. Wisner was laicized, or returned to the lay state, by a decree issued by Joseph F. Naumann on December 21, 2017. The order was affirmed by the Vatican’s Congregation for the Doctrine of the Faith on March 2, 2018. The announcement was published on May 25, 2018 in The Leaven, the newspaper of the Archdiocese of Kansas City.

Wisner had been ordained in 1972. He served as an associate pastor at St. Agnes Parish in Roeland Park and worked at Sacred Heart and Christ the King parishes in Kansas City, Kansas, and St. Joseph Parish in Shawnee.

Wisner also had been an associate professor at the University of Kansas School of Medicine in the psychiatry and behavioral sciences department. He retired in September 2012.

Lost Medical Licenses

Despite Wisner’s defrocking, his medical licenses remained active for months afterward. This fact was reported by the Kansas City Star in September 2018. Victims’ advocates voiced their opinions that Wisner should not be allowed to retain his medical license. “This is a matter of protecting the public,” said Patrick Wall, a former Catholic priest who works as an investigator for a Minnesota law firm that represents sex abuse victims. “Just because he was granted a medical license at one time doesn’t mean he has a right to have it for life.”

However, Kansas medical registration records now list Wisner’s license as inactive. Wisner’s  medical license was not due to expire until July 31.

According to Kathleen Selzler Lippert, executive director of the State Board of Healing Arts, Kansas uses the inactive designation to designate a person who isn’t regularly practicing medicine in the state and “who does not hold oneself out to the public as being professionally engaged in such practice.”

Wisner’s license to practice medicine in Missouri was not revoked; it lapsed because it wasn’t renewed.

Wisner, 72, has declined to comment on the abuse allegations.

Former Expert Witness Practice

Wisner spent many years as a psychiatrist expert witness in civil and criminal trials including high-profile murder cases and sexual abuse cases.

Rebecca Randles, an attorney who has represented hundreds of sexual abuse victims in Kansas City, has said that Wisner’s medical license status is a cause for both relief and concern. She said,  “Because his license lapsed or was not renewed, the board likely lost jurisdiction to act on it.” This means that Wisner could seek reinstatement of his medical license in the state or elsewhere.

Should Blood Splatter Experts Be Excluded Under Daubert?

Fans of the CSI shows know that forensic experts can provide valuable evidence to help convict the guilty. Criminal defense lawyers know that forensic experts can help innocent defendants avoid conviction by exposing junk science relied upon by prosecutors.

Examples of junk science that lead to wrongful convictions include bite mark comparisons, hair analysis, and ballistic tests. The National Commission on Forensic Science had undertaken the important work of documenting the use of junk science in criminal courts until the Justice Department under former Attorney General Jeff Sessions decided not to renew its mandate.

That more work needs to be done was made clear by a recent ProPublica investigation of blood splatter experts. While judges in Daubert states insist upon rigorous scientific validation before admitting expert testimony in civil cases, judges have consistently allowed blood splatter experts to testify in criminal cases without requiring proof that their opinions are based on a reliable methodology and sufficient facts.

The Birth of Blood-Splatter Analysis

Blood-pattern analysis was popularized by Herbert MacDonell in the 1970s. After setting up the unaccredited Laboratory of Forensic Science in his basement and naming himself its director, MacDonell began traveling around the country in a quest to convince prosecutors that he had refined a forensic technique that would help prove the guilt of criminal suspects.

MacDonell soon began to earn a living by setting up Bloodstain Evidence Institutes and teaching 40-hour courses in blood-pattern analysis. He opened the course to anyone who wanted to take it, including police officers who had no scientific training. He gave certificates to students who passed. Of course, her certified nearly all of his students as experts.

According to the Texas Court of Appeals, “MacDonell’s studies are based on general principles of physics, chemistry, biology, and mathematics, and his methods use tools as widely recognized as the microscope.” An appropriate response to that observation might be, “So what?” There is a vast difference between citing “general principles of science” and applying specific principles as part of a reliable methodology that produces accurate results.

The court apparently believed that blood-splatter analysis is reliable because MacDonell and the prosecutors who relied upon him assured the court that MacDonell’s techniques were reliable. Courts accepted those assurances without demanding validation. No studies in peer-reviewed journals concluded that blood-splatter analysis achieves predictable outcomes. As ProPublica notes, the dubious science of reconstructing a crime based on blood patterns nevertheless swept through the nation’s criminal courts, revealing “the startling vulnerability of judges, and juries, to forensics techniques, both before, and after, they’ve been debunked.”

Courts continued to allow blood splatter experts to testify even after a 2009 report by the National Academy of Sciences (NAS) found that “the uncertainties associated with bloodstain pattern analysis are enormous,” and that experts’ opinions were generally “more subjective than scientific.” Courts largely ignored that report, and MacDonell continued to testify as the field’s leading expert until 2012, when he was accused of sexually assaulting two minors. He retired that year.

Criticism of Blood Splatter Analysis

The groundbreaking NAS critique of forensic sciences concluded that blood-pattern analysis may have some value, but that complex overlapping patterns are easily mistaken for simple patterns. The NAS report notes that “in many cases their interpretations are difficult or impossible.”

The report explains that patterns blood might make when exiting a wound are “highly variable” and will depend, among other factors, upon the particular damage done to soft tissues, the motion of the body after the wound is inflicted, and the impact of gravity on blood as it exits a wound. Blood-splatter experts often lack sufficient data to make an informed judgment, and many experts “extrapolate far beyond what can be supported” by the physical evidence.

According to the NAS, the interpretation and reconstruction of blood stains requires, at a minimum, an understanding of applied mathematics, the physics of fluid transfer, and the pathology of wounds. Yet most crime scene analyists who testify as “experts” in blood-splatter analysis are police officers who have no scientific education at all, much less an understanding of applied mathematics, physics, and wound pathology. The NAS specifically notes that workshops are not an adequate substitute for knowledge gained through scientific training, experimentation, and experience.

The report also criticized organizations that purport to “certify” bloodstain experts based on a certain number of training hours. Certifications are awarded to people (usually police officers) who have no scientific education and who have not demonstrated a mastery of the “rigorous and objective hypothesis testing” and “complex nature of fluid dynamics” that is essential to the formation of reliable opinions about the cause of blood patterns.

In the end, the report notes, “the opinions of bloodstain pattern analysts are more subjective than scientific.” Yet courts around the nation have been bamboozled into admitting prosecution-oriented evidence from police officers who are deemed to be experts on the basis of meaningless certificates awarded by training institutes that exist solely to make money.

The Future of Blood Splatter Expert Evidence

Concluding that the “uncertainties associated with bloodstain pattern analysis are enormous,” the NAS report recommends a methodology that includes “many experiments . . . to determine what characteristics of a bloodstain pattern are caused by particular actions during a crime and to inform the interpretation of those causal links.” Rare will be the police officer “expert” who conducts any experiments at all.

While enthusiasm for Daubert was driven by business and insurance interests that lost civil trials due to expert testimony they believed to be founded on “junk science,” courts have been slow to apply Daubert to the shaky forensic science upon which criminal prosecutions are often built. Defense attorneys should nonetheless mount vigorous challenges in Daubert states to the unreliable methodology and insufficient data that underlies most expert blood-splatter testimony. In non-Daubert states, attorneys should use the NAS report and experts of their own to challenge the qualifications of a police officer who has no scientific education beyond completion of a blood pattern course.

Given the judicial reluctance to screen dubious evidence in criminal prosecutions, defense attorneys should also engage qualified experts, including experts in fluid dynamics and science methodology, to discuss flaws in the conclusions drawn by prosecution experts. Whenever the prosecution relies upon dubious experts, the defense should counter with reliable experts who can help juries understand the difference between real science and junk science.

Administrative Agency Rejects Expert Testimony Concerning Metadata in Audio Recordings

Metadata (the electronically stored data in digital photographs and recordings) has become an increasingly important source of information for attorneys. Expert witnesses who understand metadata are frequently called upon to explain the hidden properties of digital data to courts and administrative agencies.

An administrative appeal in New Jersey addressed metadata (or its absence) in audio recordings. The digital recordings were only admissible if they were authentic — that is, if they were genuine and unaltered copies of the original digital recordings. The question before the agency was whether the failure to reproduce metadata in the original recordings precludes the admission of copies into evidence.

Nature of the Case

The New Jersey Department of Banking and Insurance began an enforcement proceeding against John Savadjian alleging eight violations of New Jersey insurance regulations. The allegations involved transfers of life insurance policies to new company representatives without the policyholder’s knowledge or consent.

The Department also alleged that Savadjian forged a number of insurance documents. The Department later amended its charges to allege that Savadjian impersonated other people when contacting Prudential Insurance for the purpose of obtaining policyholder information that he used to transfer accounts to his son without the policyholders’ knowledge.

Prudential has a computerized system that automatically records telephone calls. Prudential supplied the Department with a spreadsheet identifying the dates and times of the calls allegedly made by Savadjian. Digital copies of the calls were embedded in the spreadsheet.

Savadjian asked Prudential for copies of the recordings with their original metadata. The metadata on the recordings that were copied to the spreadsheet showed only the dates on which the recordings were downloaded from Prudential’s system, not the dates on which the recordings were made. Prudential refused to produce the original recordings and the Department moved forward without obtaining them.

Authentication of Recordings

Evidence offered as an exhibit must be authenticated — that is, it must be shown to be what it purports to be. Under New Jersey law, audio recordings must be authenticated by proving (among other requirements) that the recordings accurately reproduced the recorded conversation and that the recordings were not subsequently altered.

Audio recordings are usually authenticated by the person who made the recording. That person can testify that he or she participated in the recorded conversation and that the recording of that conversation is accurate and unchanged.

In this case, the recording was made by a computer, not by a person. The Department did not rely on testimony of the various Prudential employees who participated in the conversations to authenticate them. Instead, it planned to call the Director of Prudential’s Criminal Investigation Division, who listened to the original recordings and prepared the spreadsheet. However, Prudential fired the Director ten days before the hearing.

The Department called a different employee of Prudential, Charles Shanley, to provide the authentication testimony. Shanley testified that he listened to each original recording and compared them to the recordings on the spreadsheet to assure that the spreadsheet contained authentic copies.

After considering an expert opinion about metadata in the recordings, the ALJ was not satisfied that the recordings were authenticated. The ALJ therefore declined to admit the recordings as evidence. The Department appealed that ruling to the Commissioner of the Department.

Expert Opinion

On appeal, the Commissioner concluded that Shanley’s testimony established that the copies of the recordings embedded in the spreadsheet were identical to the recordings that existed on the date the spreadsheet was created. Shanley’s testimony that he compared the originals to the copies was sufficient to satisfy that aspect of authentication.

More problematic was the necessity of proving that the recordings that were copied to the spreadsheet were unaltered and accurately captured the conversations between the caller and the Prudential employees. Savadjian relied on the opinion of digital forensics expert Tino Kyprianou to cast doubt on the recordings’ authenticity.

Kyprianou pointed out that the metadata attached to the original recordings was missing from the copies embedded in the spreadsheet. He regarded the failure to supply the metadata as a “deletion” of data and concluded that the files embedded in the spreadsheet were altered in a way that compromised or destroyed their original properties.

In addition, the user manual for the recording system indicates that recordings captured by the software can be modified. Suspicion that the original recordings were altered may have been fostered by Prudential’s refusal to produce the original recordings, including their metadata, in their native format.

Commissioner’s Decision

On appeal, the Commissioner focused on the audio content of the recordings rather than the metadata. While the ALJ was concerned that the missing metadata raised concerns about the trustworthiness of the original recordings, the Commissioner noted that the burden of authenticating evidence is rather low.

In the absence of any evidence that the voice recordings (as opposed to the metadata) were altered in any way, the Commissioner was satisfied that the identical copies (except for the metadata) were sufficiently authenticated by Shanley’s testimony. While not rejecting the expert’s testimony that the copies did not contain the metadata present in the original recordings, the evidence that needed to be authenticated was the recordings of the conversations, not the metadata. The Commissioner accordingly ruled that the ALJ should have admitted the spreadsheets containing the recordings.

Expert Testifies That Weak Bones Could Have Caused Death

A pediatric forensic pathologist has testified that weak bones was a likely cause of death in the case of a man who is accused of killing his 6-week-old son.

The Death

On December 18, 2016, the El Dorado County sheriff’s department responded to a call requesting medical aid for an infant. A six-week-old Samuel Swope was transported to Marshall Hospital in Placerville, where he was pronounced dead. The subsequent investigation determined that the death was a homicide. It was also revealed that Michael Swope, the baby’s father, was not the biological father of the child and he reportedly admitted not wanting to care for another man’s child. Swope also admitted tossing Samuel to his wife during an argument.

Michael Swope was charged with second-degree murder and felony child abuse and endangerment in connection with Samuel’s death.

The Expert Testimony

Defense attorney Philip Cozens retained Dr. Janice Ophoven to testify on Swope’s behalf. Dr. Ophoven is a pediatric forensic pathologist who has worked on hundreds of cases involving the death of children.

Dr. Ophoven has over thirty years of clinical, administrative, and quality improvement experience. She is board certified in pathology, forensic pathology, quality assurance, and utilization review. Dr. Ophoven has consulted as a court-certified medical expert in pediatric forensic pathology in criminal and civil cases for both the prosecution and defense. She has also has consulted with medical examiners, coroners, physicians, law enforcement, and legal professionals who have asked her to determine the cause and manner of the child’s injury or death.

Dr. Ophoven testified that she has worked on many cases where an infant had suffered fractures and was initially thought to be the victim of child abuse, but bone disease turned out to be the cause of the breakage. She opined that the case of baby Samuel may fall into that category. However, Dr. Ophoven also said that a fatal blow to Samuel’s head was the likely case of the precipitating fatal incident. Dr. Ophoven said that if baby Samuel’s bones were already compromised due to bone disease, he would be much more susceptible to injury from a blow or other trauma.

Dr. Ophoven concluded that baby Samuel’s abnormal weakness could have accounted for some 30 fractures to the baby’s ribs. These injuries, which were found during Samuel’s autopsy, were a contributing factor to the Sacramento pathologist Brian Nagao calling law enforcement for what he believed was a criminal case of child abuse.

Cross Examination

Prosecuting attorney Lisette Suder of the El Dorado County District Attorney’s Office raised the issue of expert fees. Suder pointed out that the defense team had paid Dr. Ophoven more than $15,600 so far, implying that the doctor’s testimony would be more favorable to the defense position.

Suder asked Dr. Ophoven whether her “goal was to say that the mom did it and that it (the fatal injury) didn’t happen that day?” Dr. Ophoven denied that contention and said that her findings came straight from the record.